Gomez-Rios, Ex parte - Re Minister for Immigrtion & Ors S114/2000 [2000] HCATrans 494 (28 August 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S114 of 2000

In the matter of -

An application for Writs of Mandamus, Prohibition and Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

and

MARGARET O'BRIEN, sitting as the REFUGEE REVIEW TRIBUNAL

Second Respondent

PETER NYGH, in the capacity as Principal Member of the REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte -

ALFREDO GOMEZ-RIOS

Applicant/Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 28 AUGUST 2000, AT 2.14 PM

(Continued from 16/8/00)

Copyright in the High Court of Australia

___________________

MR P.M. GWOZDECKY: I appear for the applicant prosecutor. (instructed by Mr Gomez-Rios)

MR S.J. GAGELER: If your Honour pleases, I continue to appear for the first respondent. (instructed by the Australian Government Solicitor)

MR GWOZDECKY: Your Honour, if I could just start with - there has been some evidence that has come in late and I think it questions my ability to take instructions in this matter. I would move a motion to appoint a next friend and I hand up just a consent to amend the application to include a next friend on behalf - - -

HIS HONOUR: Have you seen this, Mr Gageler?

MR GAGELER: Yes, I have, your Honour.

HIS HONOUR: This is pursuant to what order?

MR GWOZDECKY: Order 16 - I think it would be about rule 23 or 24, your Honour.

HIS HONOUR: Very well. Now, if this step is taken, will that clear the way for you to appear?

MR GWOZDECKY: Yes, your Honour. My friend - I have passed that with him and he has consented to that.

HIS HONOUR: Does that appear to be so to you, Mr Gageler?

MR GAGELER: Your Honour, it appears that the correct form of order would be an order granting leave to amend so as to allow the applicant to appear by a next friend. It has actually been considered in a somewhat analogous context by Justice Fox in the Supreme Court of the Australian Capital Territory.

HIS HONOUR: Thank you. Just sit down for a minute. Yes. So what would the text of the appropriate order be?

MR GAGELER: It would be that there be leave to amend so as to allow the proceedings to be continued by the named person as next friend.

HIS HONOUR: Yes.

MR GAGELER: Technically it would be leave to amend the draft order nisi.

HIS HONOUR: Yes, that would be right. Is it "Borda", Mr Gwozdecky; Juan Carlos Borda-Albornoz?

MR GWOZDECKY: Yes.

HIS HONOUR: I order that there be leave to amend the draft order nisi so as to allow the application to continue by Juan Carlos Borda-Albornoz as next friend of Alfredo Gomez-Rios.

All right. And the form of consent under Order 16 rule 23 by the next friend may be filed in Court. Yes.

MR GWOZDECKY: Your Honour, I also would like to hand up an affidavit - - -

HIS HONOUR: You want to file it in Court, do you?

MR GWOZDECKY: If I could have leave to file in Court. It is basically the medical report and it is - my friend has consented to that being tendered in evidence.

HIS HONOUR: This really supports the order, does it?

MR GWOZDECKY: It supports the order, yes.

HIS HONOUR: All right. Is it tendered for that purpose?

MR GWOZDECKY: Yes, your Honour.

MR GAGELER: I do not object, your Honour.

HIS HONOUR: The affidavit of the applicant sworn 28 August 2000 may be filed in Court.

MR GWOZDECKY: Your Honour, I hand up a chronology just as an aide memoir for your Honour.

HIS HONOUR: Thank you. What is the position of these documents which have emerged from Brisbane?

MR GWOZDECKY: From Brisbane?

HIS HONOUR: Yes. Do you know anything about this?

MR GWOZDECKY: No, I do not, your Honour.

HIS HONOUR: Just pardon me a minute. No problem. Yes, continue, Mr Gwozdecky. Now, you said there was a chronology?

MR GWOZDECKY: Yes, your Honour.

HIS HONOUR: Now, I can assist the parties in this respect. It seems to me that to decide the matter purely on discretionary grounds one would need to have some regard to the strength of the merits and one would really best advance the matter by considering the merits and then, if you are in a favourable position on the merits, the question would arise of discretion. Now, it would be better, therefore, if both counsel first directed their submissions to the merits and if you, in particular, directed yourself to what Mr Gageler said at paragraphs 11 and following of his outline.

MR GWOZDECKY: Yes, your Honour.

HIS HONOUR: Before you come to that, though, we had better get the evidence in proper order. You are moving on the affidavit of the applicant, the long one, of 23 May, is that right?

MR GWOZDECKY: Yes, your Honour.

HIS HONOUR: Are there any objections to that, Mr Gageler?

MR GAGELER: Your Honour, there would be just one objection to a number of words in paragraph 12. The words at the end of the first sentence, "as a result of being tortured", appear to go to the merits rather than to any issue properly arising in the proceedings.

HIS HONOUR: I think that is right.

MR GAGELER: Apart from that, no, your Honour.

HIS HONOUR: I think that is right, Mr Gwozdecky.

MR GWOZDECKY: Yes, your Honour, I think that point, my friend is correct about that, but I think that is reinforced by the decision of the Tribunal.

HIS HONOUR: That is the point.

MR GWOZDECKY: I see.

HIS HONOUR: You are here on administrative review through the medium of 75(v).

MR GWOZDECKY: Yes.

HIS HONOUR: So the words "as a result of being tortured" from the first sentence of paragraph 12 of the applicant's affidavit of 23 May are objected to and the objection is upheld. Yes, any other evidence?

MR GWOZDECKY: No, your Honour, that is the evidence of the applicant.

HIS HONOUR: All right.

MR GWOZDECKY: Your Honour, the application before yourself is one of an order nisi, seeking an order nisi for mandamus, prohibition and certiorari.

HIS HONOUR: Yes. Just let me look at the draft order nisi. You have prohibition against the Minister, certiorari to the Tribunal and then mandamus to get a new rehearing, as it were?

MR GWOZDECKY: Yes.

HIS HONOUR: You do not press the injunction, I take it?

MR GWOZDECKY: That is correct. Your Honour, the application seeks leave for mandamus. It is out of time. I think that would be something that maybe would be in the exercise of your discretion as well as on the merits.

HIS HONOUR: Yes, that is right. Now, the grounds? There are three grounds advanced, are there not, in the draft?

MR GWOZDECKY: Yes, your Honour. The main point in this application is the failure of the Tribunal to consider evidence critical to the decision-making process, to the fundamental decision they had to decide. That evidence, your Honour, was presented on the initial protection visa application form which is annexure AGR-0 to the affidavit of the 23 May 2000. If I could take your Honour to question No 37.

HIS HONOUR: Yes.

MR GWOZDECKY: You will see that, in answer to the question:

What do you fear may happen to you if you go back to that country?

The last sentence in answer to that question is:

The Police had a list of suspicious guerrlla activists, most of them were killed, a few of us ran away to other countries. My name was on that list.

Now, your Honour - - -

HIS HONOUR: The problem the Tribunal had was that the applicant had changed his story or, to put it neutrally, there was a lack of coincidence between the various steps in his story, both in the evidence to the Tribunal that was oral, the evidence that was written and so on. The Tribunal had to make its mind up about that.

MR GWOZDECKY: Yes. And my friend's point is that they accepted his oral evidence - - -

HIS HONOUR: Yes, but you have to face up to the real point. The real point is, perhaps, that the Tribunal in the end conceded a subjective fear but said there was not an objective fear.

MR GWOZDECKY: Yes, your Honour, and we say that - - -

HIS HONOUR: So in so far as you say there is this, that and the other wrong in their treatment of subjective fear, you are pushing against an open door because they were prepared to concede that in your favour - she was prepared to concede that in your favour.

MR GWOZDECKY: Yes, but, your Honour, we would say two things about that. That did not necessarily just go to subjective fear; it went to objective fear. It was specific and detailed evidence which we say the Tribunal, especially when it was put before them in such a specific way, had an obligation to deal with one way or the other. They seemed to not deal with it at all. They dealt with other inconsistencies specifically, which they addressed in their reasons, but they did not - and in summarising the claims put before the Tribunal, they summarised quite accurately everything except they forgot to say that that evidence was put before them, and then they also forgot to deal with it when it came to the reasons. The applicant says that it was quite critical to the decision because that went further than just subjective fear. That was an objective - that was objective evidence.

HIS HONOUR: What was objective? The statement by the applicant?

MR GWOZDECKY: No, your Honour. The statement by the applicant, that was not necessarily objective itself, but we say that that was fundamental enough that it should have been - that it did go to the objective view as well.

HIS HONOUR: How?

MR GWOZDECKY: Your Honour, we say that it was that sort of information, being put squarely before them, should have been, in some way at least, at least considered in their decision making, not just ignored, especially when their final decision seemed to turn on it. Their final decision on page 8 of their reasons, which is AGR-1, the annexure to the affidavit of 23 May 2000 - - -

HIS HONOUR: Yes. Page?

MR GWOZDECKY: I think, your Honour, the gist of the applicant's case is really pages 8 and 9 of the reasons.

HIS HONOUR: Yes.

MR GWOZDECKY: If your Honour moves to page 9 at the top of the page, the second sentence starting with "Furthermore", these are the grounds that have been elucidated in the application:

there is no evidence to suggest that the Applicant has ever come to the adverse attention of the authorities in relation to his membership of various groups or in relation to his various low key political activities, including the most recent, his very brief involvement in the Shultz incident of early August 1988.

That statement, your Honour, as I say, completely ignores the fact that he has stated straight up on his application form that his name was on a list as a result of these activities.

The following sentence on the same page, your Honour, page 9 of the reasons:

The Applicant's role in the Shultz incident was brief and minor and there is no evidence to suggest that the authorities were ever aware of his involvement.

Number two, again, "there is no evidence". Again, there was evidence. He put on his application form, my name was on the list. That is the second point.

HIS HONOUR: Yes.

MR GWOZDECKY: The third point, your Honour, at the bottom of that paragraph, the second-last sentence of that first paragraph on page 9 of the reasons:

There is no evidence to suggest that the authorities have since become aware of his involvement in the Shultz incident or with the long since dissolved left wing terrorist FAL-ZW.

Now, your Honour, those were critical findings of the Tribunal in coming to their decision and, your Honour, nowhere in the body of the reasons of that decision, if your Honour goes back to page 3 of that - at the bottom of page 3 is starts off with the "Claims and Evidence" that were put before the Tribunal. It summarises nicely what was on the application form, the protection visa application form, but nowhere does it include the fact that he had specifically stated his name was on the list - - -

HIS HONOUR: He never stated it again, though, did he? This may be a double-edged sword for you, really.

MR GWOZDECKY: I am sorry, your Honour?

HIS HONOUR: This may be a double-edged sword for you. Was the answer to paragraph 37 of the initial statement ever repeated when he was invited to tell his story?

MR GWOZDECKY: No. Your Honour - - -

HIS HONOUR: Either in writing or orally?

MR GWOZDECKY: No, he was not. Your Honour, I think this goes back to the way that the situation worked. This is a two-tier merits review. Usually there is a primary decision made at the Department level and then, if there is a review, before the RRT - - -

HIS HONOUR: I realise that.

MR GWOZDECKY: Your Honour, the initial decision before the primary decision maker was decided on 20 November. He was not present at that. That was done on the papers. At that time, your Honour, you will see that there was a statement that was put in in support of his case dated 20 November. The primary decision maker did not have - well, did not take into consideration that statement when the primary decision was made. That was only something that was before the RRT. Now, the RRT was the only body that actually - in effect they were the primary decision maker because they were the only ones that actually saw the individual and had the documents. So he did not really have the benefit of the full two-tier effect that normally occurs, or that should occur in administrative review, in cases such as this. Your Honour, the other factor is - and I know it is a - - -

HIS HONOUR: The Tribunal was empowered to do what the Minister could have done, was it not?

MR GWOZDECKY: That is correct. So it was put in the - - -

HIS HONOUR: It is a full re-examination of the matter.

MR GWOZDECKY: It is a full merits review, yes. Your Honour is familiar that the Tribunal is - the particular individual was not legally represented. There is not usually the opportunity during the Tribunal hearings for proper representation. There is a question and answer period. He is non-English speaking, it is not as if he - there was evidence before them of some mental disability and they took that into consideration and accepted that. However, the Tribunal also has the power - there are other powers within the Tribunal to make certain investigations. No investigation was made and this is not necessarily a criticism of them, but they did have the power to adjourn and say, listen, we would like this applicant to be assessed psychologically or have his mental capacity investigated before we continue. It was, you know, we are saying that this situation existed earlier on than now. It is just that, as a result of legal representation coming into it, this area of his mental capacity and intellectual functioning has been assessed.

Your Honour, I think it could be quite clearly said that the situation before the Tribunal was a bit of a shemozzle. He did not - I mean, from the comments of the Tribunal member in her reasons, she seemed to - in many respects she seemed to be quite supportive and recognising this problem, but at the same time we say that there was an error going to the jurisdiction because, although once this information came to her light, the Tribunal did have the power to actually adjourn it and order a psychological assessment, considering the circumstances. However, they did not, your Honour, and as I say, the gentleman was not represented in any way and information that passed was - well, we say that because of the nature of the review, where it is basically questions, cross-examination by the Tribunal member of a non-English speaking person, it was not exactly a situation where the case was allowed to be - it could not be considered to be a full merits review of the case, your Honour, basically considering that situation.

HIS HONOUR: Is there any evidence as to who completed this form you have taken me to?

MR GWOZDECKY: The protection visa application?

HIS HONOUR: Form C, yes.

MR GWOZDECKY: Yes, there is. That was completed by the applicant and his brother. I think in parts of it, the statutory declaration, that was submitted in support of the application on 20 November, does make some amendments to it.

HIS HONOUR: Was it mentioned in the statutory declaration?

MR GWOZDECKY: Yes, in relation to question - - -

HIS HONOUR: Question 37, was that taken up again in the statutory declaration, which was translated?

MR GWOZDECKY: No. Question 36 was amended in the stat dec to say that, "Question 36: Why did you leave that country?" In the statutory declaration the answer to 36 was amended from "Mr Bush" to "Mr Shultz" and that was amended on the basis that, I think, the applicant says that his brother - - -

HIS HONOUR: Political beliefs do not ordinarily extend to being involved in the attempted infliction of harm on officers in the Executive Government in another country, do they? It is all very well to say one time it is going to damage Mr Bush, another time it is going to damage Mr Shultz. It is not a light matter.

MR GWOZDECKY: Yes, your Honour, I think it is more of a - the country information clearly shows, your Honour, that the incident they were talking about was Mr Shultz. It was, if anything, a slip error. I mean, I do not think there is anyone will cavil with the fact that the dates and the incident they are talking about refer to Mr Shultz. That is supported by the country information.

HIS HONOUR: The political beliefs that are protected by the Convention, do they include political beliefs that involve the taking of steps to inflict harm upon the members of a foreign government? Political opinion, it is a bit more political opinion, is it not?

MR GWOZDECKY: Your Honour, that would seem to go to the point that if it is an illegal activity, then you are not protected by - for convention - - -

HIS HONOUR: Anyhow, it is not raised against you.

MR GWOZDECKY: But, your Honour, the applicant before the Tribunal submitted a police clearance certificate that there was not any sort of criminal action - he was not being charged - there was not any criminal sanction - - -

HIS HONOUR: That becomes a double-edged sword for you, too, because that is something else the Tribunal mentioned, did it not?

MR GWOZDECKY: Yes.

HIS HONOUR: On the basis of well-founded fear, present well-founded fear. Anyhow, the statutory declaration which is very detailed, with the translation, it is six pages long, it does deal with the Shultz visit to Bolivia and so on. It does not mention this police list, though.

MR GWOZDECKY: No, your Honour, it does not, and your Honour, I do not believe that it mentions at all the visits to Bolivia from Argentina in the five years between 1990 and 1995, which was something else that came up. Your Honour, the alleged three visits back to Bolivia from Argentina between 1991 and 1995 are not mentioned in the stat dec and they are also not mentioned in the protection visa application. That is something that just came into evidence orally during the Tribunal hearing.

HIS HONOUR: Yes.

MR GWOZDECKY: Your Honour was asking me were there any other amendments to the statutory declaration. There was, actually, your Honour. In answer to question 34, on the protection visa application, in regard to past employment, where it says, "08 73 Self employed as upholsterer to 04 92". The applicant in his stat dec says it should say, "from the 08 73 Self employed as an upholsterer to the 03 91". So he did make that correction. So he did, in his statutory declaration, seem to address those specific areas where he wanted to amend and, as I say, he did not make any - did not feel he needed to make an amendment to the question 37, which has "My name was on that list", so obviously he had - - -

HIS HONOUR: It does not tell you very much, does it? What list? When? What would one make of it?

MR GWOZDECKY: I am sorry?

HIS HONOUR: What would one make of it if one were a decision maker, faced with that very indeterminate statement? How would he know that his name was on the list?

MR GWOZDECKY: How would he know? Your Honour, the Tribunal member, in discussing the reasons, says, listen, they go to the country information and they accept that there is this group. Page 7 of the Tribunal's decision, which is AGR-1.

HIS HONOUR: Yes, I have it.

MR GWOZDECKY: That part of the country information, third sentence:

According to media reports in 1989 and 1992, the FAL-ZW was a left wing terrorist group responsible for the murder of two American Mormons and the attempted assassination of George Shultz in August 1988; seven members of the group - - -

Next sentence:

FAL-ZW was a very small subversive group of a few dozen people that carried out some relatively minor bombings, mainly against US interests in Bolivia between 1988 and January 1990.

Your Honour, that country information, "a few dozen people", it is not a large group, first of all, your Honour, it is a few dozen people. If the country information disclose that it was a group that small and someone had said, look, my name is on the list, the odds are that there is a chance, in a group that small, that this individual would be identified. But it is not so much - - -

HIS HONOUR: This is all speculation.

MR GWOZDECKY: Yes. But, your Honour, the fact is that it is a group of a few dozen people. Your Honour, that particular group was not officially targeted by para-military concerns and that is where the political persecution for political opinion comes into it. Your Honour, just the fact that - - -

HIS HONOUR: Item 37 is one. What other matters do you say were overlooked?

MR GWOZDECKY: I am sorry, your Honour?

HIS HONOUR: You say the answer to paragraph 37 was overlooked.

MR GWOZDECKY: Yes.

HIS HONOUR: What else?

MR GWOZDECKY: The evidence about his travel back and forth to Bolivia.

HIS HONOUR: As going to objective fear?

MR GWOZDECKY: Going to - yes, indirectly, yes. Because, your Honour, I think it - perhaps I can take it this way. There was no evidence on the protection visa application form or in the statutory declaration of his having gone - having left Bolivia in 1991 and going back to Bolivia. That evidence was disclosed during the Tribunal hearing. Your Honour, with the greatest respect to the Tribunal proceedings, it is a situation where a question is put to someone and sometimes it - well, it is not actually evidence from the applicant, but it is - I cannot really take that point because I do not have a transcript here in front of me, your Honour, but the nature of the proceedings where someone is unrepresented, non-English speaking, can be in a cross-examination form and they can agree to - especially if there is an incapacity mentally - they can agree to propositions that are not necessarily may not be in their case.

Anyway, your Honour, I guess the point about it is that the information that the Tribunal member accepted and elicited from the hearing, that this applicant went back to Bolivia on three occasions between the date he left in about 1990-91 to before 1995 when he left for Australia, is critical to a finding against this applicant because they say, well, listen, if he has gone back there and he has lived there subsequently, you know, what is the point? I mean, he says he is being persecuted and yet he has gone back three times and lived there.

But, your Honour, what we are saying is that was not strictly the evidence. Under the situation, the incapacity, that evidence was not clear but yet it was in fact taken against him and it was critical to the decision against him, the ultimate decision against him that, objectively, there was not a fear of persecution, a well-founded fear of persecution, because he had been back there and lived there subsequently. Your Honour, there is no evidence at all that he lived there subsequently. But the Tribunal finds, if I can take your Honour again to page 8 of the reasons, which is AGR-1, and it is just maybe three or four sentences down from the top of the page:

Despite the investigation of the Shultz attempt after the visit in August 1988 and the arrest of several FAL-ZW members for this and another incident in mid 1989, the Applicant was not detained or questioned by the authorities even though he remained in Bolivia until 1990 and he lived there subsequently.

"He lived there subsequently". There is no evidence of that, your Honour.

HIS HONOUR: Whereabouts is this?

MR GWOZDECKY: On page 9, I am sorry, of AGR-1.

HIS HONOUR: Where is that on page 9?

MR GWOZDECKY: About point 2 down the page, your Honour, about the third sentence, starting with "Despite the investigation of the Shultz attempt". The last part of that sentence, "he remained in Bolivia until 1990 and he lived there subsequently". Your Honour, there is no evidence that he lived there subsequently, and that was critical to their decision making.

If I take your Honour to the applicant's protection visa application and answer to question 28. It says:

Did you ever travel outside your home country before your current journey to Australia

He says, yes. "Argentine", "Visiting my sister". Then it has got "Date of departure from home country" and it has got "??/04/91". It says, "Date of return to home country "I have not returned yet."

So, he has said, on his protection application form, "I never went back there." He has filled out a statutory declaration. It does not say anything about him going back to Bolivia. Then, all of a sudden, in the Tribunal hearing, there is this evidence that he has gone back to Bolivia three times and since he has apparently left. Since he has apparently left Bolivia in 1990-1991, and gone to Argentina, all of a sudden the Tribunal, in oral evidence, says he has gone back three times and he has lived there subsequently. There is no evidence of that.

HIS HONOUR: What about the finding of fact at the bottom of page 4, the paragraph beginning, "At the Tribunal hearing"?

He now said that he travelled between Bolivia and Argentina between 1990 and 1995 but great difficulty was experienced in ascertaining the Applicant's movements. However, it appears that he went to Argentina from Bolivia three times during that period.

MR GWOZDECKY: Yes. Your Honour, as I say, the position - - -

HIS HONOUR: What is said later has to be read in the light of that. What is said later, on page 9, has to be read with the findings on page 4.

The Applicant said he travelled between the two countries on a "safe passage" certificate -

et cetera.

MR GWOZDECKY: Yes. That information, your Honour, was only first ever elicited during the Tribunal hearing, because - - -

HIS HONOUR: Well, maybe. You have to show a constructive failure to exercise jurisdiction because the factual findings are so off the rails.

MR GWOZDECKY: Your Honour, as I say, the third point which has sort of come to - was evident in here but has come to light is the issue of mental capacity.

HIS HONOUR: Yes.

MR GWOZDECKY: It seems quite clear from reading the reasons that there was an issue, you know, before the Tribunal and the Tribunal member accepted a certain part of that.

HIS HONOUR: What is the Tribunal to do?

MR GWOZDECKY: The Tribunal, your Honour, has the power to adjourn to have an applicant assessed. They have the powers to investigate; they have the powers to subpoena; they have certain powers.

HIS HONOUR: Why is it the Tribunal's job to enter upon these tasks?

MR GWOZDECKY: Your Honour, I say they have the power. It is not their duty to make the applicant's case, your Honour, I understand that but in situations where there is an obvious - well, where there may be an obvious incapacity, they do have that power and we say, your Honour, that that - even aside from that power and the fact that it could have been exercised in this case, the main points that we are relying on in the application are fundamental, we say, to the decision, because, you know, specific evidence was put before them, your Honour, and it was not dealt with.

HIS HONOUR: Now, there are two matters you complain about at the moment. One was the answer to paragraph 37.

MR GWOZDECKY: Yes.

HIS HONOUR: The other one was living in Bolivia subsequent to 1990.

MR GWOZDECKY: That is correct.

HIS HONOUR: Anything else?

MR GWOZDECKY: The third one is the mental capacity, your Honour.

HIS HONOUR: I do not quite understand that. What comes out of such point? The Tribunal accepted:

that he has some mental or physical disability which makes it difficult for him to give a clear and consistent account of his claims. The Tribunal therefore accepts his assertion, given under oath/affirmation, that his oral evidence is true......

the Tribunal accepts that although he was unable to tell the Tribunal anything about the NL, despite his lengthy association with that group, that he belonged to that group until 1988.

Et cetera, et cetera. Various assumptions were made in your favour. You say not enough.

MR GWOZDECKY: It is a bit of a double-edged sword, your Honour. In an attempt to placate what seemed to be probably occurring during the hearing, obvious problems with the translations, certain evidence that was critical to this case was overlooked. Maybe this is one of the problems in accepting of certain things without taking it the next step and having the individual properly assessed because the Tribunal member obviously saw that there was a problem here and made certain concessions but concessions that certainly did not include some of the critical evidence that should have been dealt with.

HIS HONOUR: Yes.

MR GWOZDECKY: They accepted that he had been tortured and that these problems were a result of that. Your Honour, the nature of the hearings before the Tribunal tend to be a sort of cross-examination style. If the Tribunal was going to just rely on oral evidence and, as my friend says, not consider any of the written information - - -

HIS HONOUR: That is not true; that is not what they did.

MR GWOZDECKY: Well, your Honour, in that case, that would support the applicant's point that that was a critical - - -

HIS HONOUR: The Tribunal was faced with a shifting picture presented by your client.

MR GWOZDECKY: Yes.

HIS HONOUR: Partly in writing, partly orally. It had to make some finding. You do not like the finding. You say they could have made other findings. That does not prove constructive failure to exercise jurisdiction.

MR GWOZDECKY: Your Honour, it goes a little bit further than that, we say. Your Honour, there was specific expressed evidence that was put before them that they had to take into consideration and they did not and that is the constructive failure to exercise jurisdiction.

If your Honour looks at the decision, AGR-1, starting on page 3, "Claims and Evidence", the Tribunal member is meticulous in going through the protection visa application form and saying what has been claimed but it does not say that. It does not say that this individual has claimed to be on that list.

HIS HONOUR: I know that, Mr Gwozdecky. I understand your submissions about that. Now, anything else other than those three points?

MR GWOZDECKY: No, your Honour.

HIS HONOUR: All right. Yes, Mr Gageler. There seem to be these three points on objective fear.

MR GAGELER: Yes. Well, by way of introduction, your Honour's observation is correct. The Tribunal, at the bottom of page 8 point 9, in the first sentence, implicitly accepted that the applicant had a subjective fear of harm if he were returned to Bolivia but stated that it was not satisfied that his fears were well founded, and then went on, in the remainder of that paragraph over the page, to give reasons for that lack of satisfaction. Now, the applicant's counsel now seizes on a number of statements in that paragraph as disclosing inferred error or constructive failure to exercise jurisdiction.

So far as the Shultz incident is concerned which underlies grounds 1 and 2, that was an incident that was noted by the Tribunal at page 4 at about point 4. In the middle of the paragraph beginning, "The Applicant left the POR", your Honour will see, about halfway through, a sentence which begins, "In late July 1988".

HIS HONOUR: Yes.

MR GAGELER: And two sentences further on, your Honour will see a statement that, "The Applicant was frightened" and immediately before that a reference to the police list. Now, what the Tribunal was saying, at pages 8 and 9, in relation to the Shultz incident, was that there was no evidence that the applicant came to the attention of the authorities subsequent to or as a result of the Shultz incident. What is said is that the Tribunal was there overlooking the applicant's answer given to question 37 in his application form. But if your Honour looks at what the question was, the question was:

What do you fear may happen to you if you go back to that country?

Now, the Tribunal, as I said, accepted that the applicant was specifically afraid in relation to the Shultz incident and did not find against him on subjective fear but found against him on the objective basis for that fear. The answer provides no evidence of any objective nature and that is borne out by the statutory declaration which does, in fact, say something about the list. The statutory declaration is part of the same exhibit. If your Honour goes to the last page.

HIS HONOUR: Yes, I have it.

MR GAGELER: There is a sentence about point 3:

After Mr Shultz' visit to Bolivia, the police and other government intelligence agencies began investigating the attempt on the American Secretary of State. After a period of 18 months, the police had a list of suspects on which seemingly were the names of the guerrilla group members.

There is an obvious element of speculation on his part as to whose name may have been on the list. That is what he feared. There is no doubt about that being his fear. There was simply no objective evidence, as the Tribunal was entitled to find, linking his name to the list. That is the Shultz incident point. That deals with the first two grounds.

Now, so far as the Tribunal's consideration of whether or not the applicant lived in Bolivia after 1990 is concerned, what is seized upon as disclosing error amounting to a constructive failure to exercise jurisdiction is about five words on page 9 where it is said, after referring to Bolivia, "and he lived there subsequently". Now that, first, is a finding of fact but, secondly, is a finding of fact that was well open to the Tribunal, given the confused nature of the evidence.

Your Honour, I think, has already referred to page 4, at about point 8 or point 9, where the confused nature of the applicant's evidence before the Tribunal as to his movements is referred to. That is returned to, page 5, again, about point 7, in the paragraph beginning, "The Applicant claimed that even if he returns to Bolivia". At page 6, at the bottom of the page, there is a discussion in the full paragraph there about the many conflicts between the applicant's oral evidence and his written material. On page 8, at the beginning of the "Findings and Reasons", again, the confusion in the applicant's evidence is referred to and, about point 5 of that page, giving the applicant the benefit of the doubt, the Tribunal was accepting his oral evidence over his written material.

Now, it is very difficult, in those circumstances, particularly where the Tribunal's summary of the oral evidence, page 4, in the last paragraph, bears out the conclusion of fact of which complaint is made, to say that there is a "no evidence" ground, particularly when your Honour simply does not have the transcript of the proceedings before the Tribunal to be satisfied that there was no evidence.

So far as the applicant's affidavit seeks to make out a "no evidence" ground by saying what was said before the Tribunal, it, itself, is incredibly confused, and without going to them, if your Honour were to look at paragraphs 15, 16, 17 and 20 of the applicant's affidavit in support, your Honour would see a very confused picture of what his movements between Argentina and Bolivia may have been. Themselves, those paragraphs, are somewhat self-contradictory and they certainly do not make out even individually the particularised ground in the order nisi that he gave oral evidence that although he visited Bolivia on three occasions between 1990 and 1995, they were short visits where he never stayed more than a few weeks when he visited.

HIS HONOUR: Yes.

MR GAGELER: Now, there is what seems to be a third ground that has emerged. In my submission, it simply does not amount to anything approaching error of law to say that the Tribunal must have been aware that the applicant was under some difficulty in presenting his case. If your Honour pleases.

HIS HONOUR: Thank you. Yes, Mr Gwozdecky.

MR GWOZDECKY: Your Honour, in relation to the confused nature of the evidence that confronted the Tribunal, your Honour, the Tribunal member made a specific finding that it was not a credit issue. This is not a case or this was not a case where the applicant, for reasons of credit, was down. The applicant - and in seeming to make some sort of sense of the evidence, the Tribunal member accepted that there was some sort of mental disability and communicative disability that was occurring and made a specific finding that it was not a credit situation. In that respect, your Honour - - -

HIS HONOUR: But people often give evidence of various factual matters which is not consistent. That does not necessarily mean they lack credit. A lot of people just get genuinely muddled. But the fact finder has to sort it out, if it is a judge, and give reasons. If it is an administrative tribunal, the same problems can arise where there is an obligation, as there is here, under the Migration Act 1903 to give reasons.

MR GWOZDECKY: Yes. I accept that, your Honour, and, as I say, the main point in this case that we rely on is the fact that she did specifically put the fact that he was on the list, and it was not dealt with, and it is quite - and the other issues, the secondary points about the travel to Bolivia and back, your Honour, that is a situation where - I accept my friend's submission that, to some extent, without a transcript - - -

HIS HONOUR: You see, he was able to say the attempted assassination or whatever it was of the then United States Secretary of State was in 1988, was it - 1987/1988?

MR GWOZDECKY: August 1988.

HIS HONOUR: And thereafter, in response to that, the police had lists. That may all explain why he left - or help explain why he thought, in 1990 or 1991, he should leave Bolivia and that may all assist a subjective fear; attenuated, perhaps, but nevertheless it may support it, given the lapse of time. The Tribunal, on the second branch, is assessing objective fear as at the time here, now, in Australia, when this application has been made. It is a long time later. In the meantime, the evidence is the structure of government in Bolivia has changed, and changed significantly in a systemic fashion.

MR GWOZDECKY: Yes, your Honour, and in relation to that point, the applicant's main point about "my name is not on the list" was something that the Tribunal considered when they were considering the objective element because, as your Honour has said and as my friend has also submitted, that at the bottom of page 8 point 9 of the reasons, they accepted his subjective fear, and then went on to deal with his objective fear on page 9 and that is particularly when the points that we say they erred, they did not take into consideration.

Now, your Honour, there was two witnesses that were at the Tribunal hearing that gave support to the applicant's case. One was a brother-in-law who was also involved with that particular group.

HIS HONOUR: Now, you are starting to deal with matters in reply you did not deal with in-chief.

MR GWOZDECKY: I am sorry, your Honour. So, your Honour, the evidence that we are talking about does go to the finding of objective fear because that is when they deal with it and it is when they deal with it on page 9 of their reasons, the last page of the reasons, where they make the three fundamental, we say, errors that go to jurisdiction by saying there was no evidence. Your Honour, the information was provided, it was before them, and we say that they had an obligation when it was before them to at least acknowledge or to at least deal with it and that clearly was not done on this specific point. As I say, that specific point went to the heart of the issue.

Your Honour, in dealing with the case, there was also the evidence the group set and the torture that occurred before this last group in 1988 and the Shultz incident and that, your Honour, goes also to this gentleman's subjective fear because part of the evidence was that once you are a member of one of these group and you then leave, you are then, in effect - well, branded as a traitor and you are - - -

HIS HONOUR: Yes, I understand all that. That is Trotsky's problem.

MR GWOZDECKY: Yes. So, your Honour, we say that definitely went straight to their consideration of the objective fear and we say that is something that they had an obligation to do; they did not; and that forms the basis of the application and the constructive error of jurisdiction.

HIS HONOUR: Yes. I will take a short adjournment.

AT 3.20 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.38 PM:

HIS HONOUR: The applicant, by his next friend, seeks orders nisi for prohibition directed to the Minister and for certiorari and mandamus addressed to the Refugee Review Tribunal ("the Tribunal"). Thus this is a matter falling within the description in section 75(v) of the Constitution as regards prohibition and mandamus. Jurisdiction in respect of certiorari is then attracted, or the power is conferred, by section 33 of the Judiciary Act. An extension of time would be required for the making of the application for mandamus. This is a result of the two month limitation period in Order 55 rule 30. It would be a ground for refusing the extension of time that, in any event, the order would not be made on the merits.

On 27 April 1999 the Tribunal published written reasons for its conclusion which it expressed as follows:

"Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the Applicant does not satisfy the criterion set out in s.36(2) of the [Migration] Act for a protection visa.

DECISION

The Tribunal affirms the decision not to grant a protection visa.

The applicant is a citizen of Bolivia who arrived in Australia on 11 July 1995. On 30 September 1998, he lodged an application for a protection visa. He claimed persecution, in the necessary sense, for reasons of political opinion. On 20 November in that year a delegate of the Minister refused the grant of a protection visa. Thereafter, on 18 December 1998, the applicant sought review of that decision by the Tribunal.

On 23 May 2000, after the decision of the Tribunal, another Justice of this Court was presented with an application for similar relief to that now sought. His Honour dismissed the application for the orders nisi. At that stage, the applicant was legally unrepresented. The applicant now appears by counsel. The application for the orders nisi is resisted partly on the ground that, as a matter of discretion, the matter already having been before the Court, it should not be reagitated.

One matter that would go to the exercise of discretion would be weight of the merits on the substantive application for orders nisi. If the Court were to reach the view that in any event plainly the grounds relied upon did not have sufficient prospects of success to warrant the grant of orders nisi, it would be unnecessary to go on to consider the discretionary grounds put in opposition to such relief. Accordingly, I will direct myself, as counsel were invited to do, first to the substance of the matter.

The substance of the applicant's grounds for relief by way of orders nisi in respect of the decision of the Tribunal is a constructive failure to exercise jurisdiction by reason of its treatment and findings on factual matters. In order to explain the way the matter is put, it is necessary to refer briefly, by way of outline, to the structure of the reasons given by the Tribunal. The Tribunal began by referring to the decisions construing the meaning of the Convention definition of "refugee". It then went on, on pages 3 and following, to deal with the applicant's claims, stating that they were set out in written submissions to the Department and to the Tribunal and also in oral evidence which was given to the Tribunal on 14 April 1999.

The Tribunal referred to differences in the accounts given at various stages in these proceedings of the applicant's past in Bolivia and his present apprehensions. The Tribunal said that it had difficulty in eliciting the applicant's oral evidence, but that whilst it had grave doubts about his credibility due to significant contradictions and confusions in that evidence, the Tribunal would give him the benefit of the doubt. It accepted that the applicant had some mental or physical disability which made it difficult for him to give a clear and consistent account of his claims. It accepted his assertion that his oral evidence was true.

The Tribunal accepted that the subjective elements of the Convention definition test were made out. However, the Tribunal went on to say that it was not satisfied that the fears of the applicant of harm, if he returned to Bolivia even now, were well founded. The Tribunal had referred to the history of the applicant in his involvement in various political groups in Bolivia. It said on page 9 of its reasons that it had decided that the fears of persecution for political opinion were not well founded:

"This is because the Applicant has not been active in any of these groups, including even the political party, POR, since 1988 and in any case, he suffered no consequences, from others in the groups, communists, the authorities or anyone else, when, over the years, he ceased his membership or involvement in each group. Furthermore, there is no evidence to suggest that the Applicant has ever come to the adverse attention of the authorities in relation to his membership of various groups or in relation to his various low key political activities, including the most recent, his very brief involvement in the Shultz incident of early August 1988. The Applicant's role in the Shultz incident was brief and minor and there is no evidence to suggest that the authorities were ever aware of his involvement. Despite the investigation of the Shultz attempt after the visit in August 1988 and the arrest of several FAL-ZW members for this and another incident in mid 1989, the Applicant was not detained or questioned by the authorities even though he remained in Bolivia until 1990 and he lived there subsequently. Those arrested FAL-ZW members, except the FAL-ZW leader, had been released by 1996 after serving their reduced sentences. Furthermore, the Applicant's witness, a former member of FAL-ZW, has not experienced any serious problems as a result of that involvement or membership on his visits to Bolivia. Also, the Applicant obtained police clearance certificates that enabled him to travel in and out of Bolivia three times between 1990 and 1995. He left Bolivia legally and he obtained a Bolivian passport from the Bolivian authorities in Argentina without difficulty in April 1995 which he used to come to Australia. There is no evidence to suggest that the authorities have since become aware of his involvement in the Shultz incident or with the long since dissolved left wing terrorist FAL-ZW. The Tribunal is not satisfied that the Applicant has a well-founded fear of persecution within the meaning of the Convention."

The reference to the Shultz incident is to a visit to Bolivia in 1988 of the then Secretary of State of the United States, Mr George Shultz.

The Tribunal also referred in detail to what it described as "independent country information" dealing with the development of a democratic system in Bolivia in recent years.

Objection is taken, for the applicant, in several respects to the passage I have set out above from the Tribunal's reasons. First, reference is made by counsel to the response by the applicant to question 37 in his original application for a protection visa, bearing date 30 September 1998. Question 37 was:

What do you fear may happen to you if you go back to that country?

The "country" in the present context was Bolivia. The answer was:

The Police had a list of suspicious guerrilla activists, most of them were killed, a few of us ran away to other countries. My name was on that List.

That matter had been developed in a statutory declaration of which there was an English translation. The declaration had been made on 20 November 1998. It contained, on page 6, the statement:

"After Mr Shultz' visit to Bolivia, the police and other government intelligence agencies began investigating the attempt on the American Secretary of State. After a period of 18 months, the police had a list of suspects on which seemingly were the names of the guerrilla group members. That frightened me in such a way that I started planning my withdrawal from the group and at the same time escape the persecution of the government's agencies. In March 1991 I deserted the ranks of the Zarate Willca LIBERATION ARMED FORCES (FUERZAS-ARMADAS DE LIBERACION - Zarate Willca) In April 1991 I went to Argentina looking for help from my relatives living abroad."

It is said that in the passage I have set out from page 9 of the Tribunal's reasons the Tribunal does not, when dealing with the objective basis for the fear, detail the existence of this list held by the police. However, the Tribunal had earlier on page 4 of its reasons dealt with the involvement of the applicant in the Shultz incident as part of its treatment of the question of his subjective fear. It added:

"After the Shultz visit the authorities investigated the unspecified attempt on Shultz; after eighteen months the police had a list of suspects which included names of guerilla group members."

The Tribunal thus was alert to this material.

However, the material that is relied upon went no further than saying that the police had a list of suspects at that time which included names of guerrilla group members and that the applicant feared his name was on that list. That is a matter of inconsiderable weight when later dealing with the objective material to which one would attach primary significance in dealing with the second branch of the Convention definition. It was up to the Tribunal to make what it wished, within the accepted parameters, of the evidentiary material before it. Its failure to deal with the question of the police list in dealing with the presence of the objective fear does not found a claim of constructive failure to exercise jurisdiction.

Complaint also is made of the statement in that extract from page 9 of the Tribunal's reasons that the applicant had lived in Bolivia subsequently to 1990. There was material in the evidence which would support such a conclusion on the part of the Tribunal. The Tribunal had earlier (on page 4 and page 5) made findings of fact on the specific point. It was open for the Tribunal to conclude as it did on the materials before it and, again, there is no ground for constructive failure to exercise its jurisdiction.

Finally, reference is made to the evident difficulties of the applicant in giving his evidence, in particular his oral evidence. The Tribunal took that into account. It did, as I have indicated, give the applicant the benefit of the doubt on the subjective branch of the Convention definition, but the Tribunal was required by section 430 of the Migration Act 1958 (Cth) to make findings of fact on material questions of fact and it did so, giving proper weight to the particular position of the applicant. Again, there is no ground made out for intervention by the Court under section 75(v) of the Constitution.

It follows that the application for extension under Order 55 rule 30 in respect of mandamus should be refused.

Is extension needed for certiorari as well?

MR GAGELER: I think not, your Honour.

HIS HONOUR: I thought it was only mandamus, is that right?

MR GAGELER: It is only mandamus, your Honour.

HIS HONOUR: I am satisfied that, plainly, the grounds relied upon do not have anywhere near sufficient prospects of success to warrant the grant of any of the orders nisi sought. Accordingly, the application is refused.

Do you ask for costs?

MR GAGELER: Yes, your Honour.

HIS HONOUR: It is refused with costs.

The Court will adjourn until 10.15 am tomorrow morning.

AT 4.02 PM THE MATTER WAS CONCLUDED