Grants of Special Leave to Appeal to the High Court

On Friday, 16 November 2012 the High Court granted special leave to appeal in two cases, and referred another three to a full bench for further argument as if on appeal.

Special leave was granted in Minister for Immigration & Citizenship v Li, and appeal from a decision of the Full Court of the Federal Court of Australia.  This decision considered whether the Migration Review Tribunal’s (MRT) refusal to adjourn proceedings before it so as to enable the visa applicant to address procedural errors on the part of a body called Trades Recognition Australia in undertaking a “skills assessment” critical to the applicant meeting the visa criteria, was a refusal reasonably open to the MRT.  It also considered whether the MRT’s refusal constituted a failure to discharge the statutory review function on the footing that the refusal to grant the adjournment deprived the applicant of a meaningful hearing thus depriving the applicant of procedural fairness, and whether an unreasonable refusal to adjourn the proceeding, in circumstances where the applicant’s application for review was thereby doomed to failure, gave rise to jurisdictional error as a denial of procedural fairness and a failure by the MRT to discharge its core statutory function of review.

Special leave was also granted in SZOQQ v Minister for Immigration & Citizenship, on appeal from the Full Court of the Federal Court of Australia.  This case raises the question of whether, in deciding that Australia does not owe protection obligations under the Refugees Convention because the applicant is a “danger to the community” relying on Article 33(2) of the Convention, the Minister is required to balance that danger against the consequences to the applicant of his return to the country from which he is fleeing persecution.

Applications for special leave in two cases involving Aristocrat Technologies referred to a full bench for further argument as if on appeal.  The applications arise out of proceedings commenced by Aristocrat Technologies and associated companies seeking damages for copyright and trademark infringement in relation to the supply of refurbished gaming machines in Latin America (principally Peru) pursuant to a joint venture arrangement.  The issue in the appeal seems to be (or at least to include) the evidentiary use that could be made of certain emails which were said to demonstrate a tendency on the part of the respondents to engage in infringing transactions.

The application for special leave in Yates v The Queen was also referred to a full bench for further argument as if on appeal.  This appeal rises out of the imposition in 1987 of an indeterminate sentence of imprisonment “at the Governor’s pleasure” on the basis that the prisoner posed a danger to the community under section 662 of the Western Australia Criminal Code.