Forthcoming judgments in the High Court of Australia

The High Court will deliver judgment in two cases this week on Wendesday, 10 April 2013.

The first is in the appeal from three decisions of the NSW Court of Appeal in Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd.  These appeals address the issue of whether or not the intentional (but incorrect) removal of an easement from a land title by the Registrar-General amounts to an “omission” for the purposes of the exception to indefeasibility of title under section 42(1)(a1) of the Real Property Act 1900 as well as for the purposes of the provisions empowering the Supreme Court to order the reinstatement of the easement to the Register.

The second is in 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 series 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.