Next week in the High Court of Australia

After a marathon hearing in relation to the Commonwealth’s Mineral Resources Rent Tax this week, next week the High Court of Australia will hear argument in three cases.

The first is the appeal from the Full Federal Court in SZOQQ v Minister for Immigration and Citizenship, to be heard on Tuesday, 12 March 2013.  In this case the appellant is an Indonesian national from the West Papuan province of Irian Jaya.  Following persecution at the hands of the Indonesian government he travelled from Papua New Guinea to Australia in 1985 and was granted a serious of temporary visas until ultimately being granted a Protection Visa in 1996.  In 2000 he was arrested and detained after assaulting his de facto spouse, who died in hospital four days later.  He pleaded guilty in 2001 to manslaughter and was sentenced to seven years’ imprisonment.  In 2003 his Protection Visa was cancelled under the character provisions in section 501 of the Migration Act. In 2005 and again in 2007 the appellant requested the Minister to exercise the power under section 48B of the Act to lift the bar imposed by section 48A(2) of the Act to enable him to apply for a new Protection Visa. These applications were refused, but in December 2008 the Minister decided to exercise the power under section 48B and allowed the appellant to make a fresh Protection Visa application.  In 2009 the Minister’s delegate determined that the appellant satisfied the criteria of Art 1A(2) of the Refugees Convention.  However, the delegate determined that the appellant was not a person to whom Australia owed “protection obligations” for the purposes of section 36 of the Act because, having been convicted of a particularly serious crime and constituting a danger to the Australian community, he was excluded by Art 33(2) of the Refugees Convention.  Successive challenges to that decision on the grounds that the Minister should have balanced the threat posed by the appellant to the community against the dire consequences to the appellant should he be returned to Indonesia were rejected.  The question for determination is whether Art 33(2) of the Refugees Convention (the exception to the non-refoulement obligation) is imported into section 36 of the Act in determining whether or not the appellant is a person to whom Australia owes protection obligations.  If the appellant is a person to whom Australia owes protection obligations (ie because he satisfies Art 1 of the Refugees Convention - Art 33(2) being irrelevant for the purposes of section 36 of the Act) then further questions arise as to whether the Minister is then required to consider whether the discretion under section 501 should be exercised to prevent the grant of that visa, and if so what are the factors relevant to the exercise of that discretion.

The second is the appeal from the NSW Court of Appeal in Wallace v Kam, an interesting failure to warn case.  The plaintiff suffered from a temporary condition known as bilateral femoral neuropraxia following spinal surgery.  This was caused by lying prone for an extended period during surgery, and was not a result of the procedure itself.  The plaintiff had not been warned of the risk of this condition, but the trial judge held that had he been warned he would have gone ahead with the surgery nonetheless.  However, the plaintiff also claimed that he had not been warned of the risk of paralysis as a result of damage to the spinal nerves from the surgery itself.  Had he been warned of that risk, he would not have proceeded with the surgery.  The trial judge and the Court of Appeal held that this risk was irrelevant, as it was not the risk that materialised, and the plaintiff was not entitled to recover damages for the risk that did materialise, because he was prepared to accept that risk.

Finally, the Court will hear argument in Commissioner of Taxation v Unit Trend Services Pty Ltd  in which the High Court will be called upon to determine the proper construction of the anti-avoidance provisions of the GST legislation.