Cassim, Ex parte - Re Minister for Immigrtion & Ors C8/2000 [2000] HCATrans 520 (7 September 2000)

IN THE HIGH COURT OF AUSTRALIA

Registry No C8 of 2000

In the matter of -

An application for Writs of Prohibition, Mandamus and Certiorari and an Injuncttion against the MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ELIZABETH JENSEN sitting as THE REFUGEE REVIEW TRIBUNAL

Second Respondent

DR PETER NYGH in his capacity as Acting Principal Member of THE REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte -

ABDUL RAHMAN MOHAMMED CASSIM

Prosecutor

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 SEPTEMBER 2000, AT 9.29 AM

Copyright in the High Court of Australia

_________________

MR J. McD. EVANS: I appear for the applicant with MS T.A. WARWICK. (instructed by City First Solicitors)

MR P.J. HANKS: If your Honour pleases, I seek leave of the Court to appear for the first respondent, the Minister. (instructed by the Australian Government Solicitor)

HIS HONOUR: Yes, have you any objection to the grant of leave?

MR EVANS: No objection.

HIS HONOUR: Yes, leave is granted, Mr Hanks.

MR HANKS: Your Honour will probably have noted that there would be a letter from my instructing solicitor - - -

HIS HONOUR: I am about to - - -

MR HANKS: Yes, your Honour.

HIS HONOUR: I have a letter from the Deputy Registrar certifying that he holds a letter from the Australian Government Solicitor which advises that the Australian Government Solicitor has received instructions to act for the second and third respondents in this proposed action and that they will submit to any order of the Court in this matter, save as to costs. Yes, Mr Evans.

MR EVANS: Your Honour, the prosecutor has filed written submissions - - -

HIS HONOUR: Yes, I have read those. I have read the affidavit, I have read your submissions, I have read the reasons in the court below, I have read the respondent's submissions and I have read, very quickly, the transcript. I cannot say I have read every word in the transcript, but I have read a good deal of it, in fact I have gone through every page. So on that basis, you proceed.

MR EVANS: Your Honour, the arguments of the prosecutor are essentially that there has been a denial of natural justice in the Tribunal below on various grounds, initially by denying the prosecutor legal representation by the Tribunal, failing to inquire or ascertain material facts.

HIS HONOUR: Well, as to the question of denial of representation, the rules of natural justice are very flexible and they must give way to the terms of any statutory enactment to the contrary. Here you have 427(6) of the Act specifically denying legal representation. It is very difficult in the face of that command of the federal Parliament to say that there has been a denial of natural justice.

MR EVANS: We submit that by virtue of that denial there has been an increase in the duty on the Tribunal to make inquiries, because the representation is denied. As you say, the rules are flexible and that creates the issue of a greater obligation being placed on the Tribunal to inquire.

HIS HONOUR: Yes. The Tribunal considered that issue and came to the view that the persons that you nominated could not be regarded as independent people and that there were problems about communicating with the authorities. That being so, how could that possibly be a denial of natural justice, even assuming in your favour that dicta in the Federal Court is correct when it says that the failure to make inquiries can be a breach of the rules of natural justice?

MR EVANS: We would submit that there is in terms of the Federal Court and in other decisions. There is a recognition of circumstances in which the duty to inquire arises and that that duty arises in those circumstances where material issues are at stake.

HIS HONOUR: But it is not the role of the Tribunal to conduct your case for it. In Abebe Justice Gummow and Justice Hayne made it clear that it is for the prosecutor to put what material it thinks fit in support of it or his or her claim, as the case may be, and at a very early stage, back in April 1999, the applicant's solicitor was informed that the member of the Tribunal had considerable doubts about the authenticity of the documents. There was a reply from the applicant's then solicitor. Again, in May the Tribunal notified the applicant that it was not prepared to contact the two persons that your client had asked to be contacted.

I think there was a further occasion in November when the applicant was told that his student visa application had indicated that he had been employed and living in Colombo from 1991 until he departed in 1995. Then in December your solicitor or your client's solicitor responded. Now, in those circumstances how can it seriously be contended that there was a breach of the rules of natural justice?

MR EVANS: In terms of arguing that the propositions put by the Tribunal were essentially that, "I won't believe your independent witnesses." The proposition - - -

HIS HONOUR: Well, the Tribunal took the view that the witness - are you talking about the witness called or are you talking about these two people?

MR EVANS: No, the information that would be obtained from Sri Lanka, that there was doubts about that. The proposition was put to the Tribunal, "Well, if you make the inquiries, then you will be able to ascertain the information and there will not be that same problem that if we make the inquiries there is always the doubt that has been expressed."

HIS HONOUR: I appreciate the way you put it, but the Tribunal took the view that in the circumstances it was not appropriate to do so. Now, it does not seem to me that involves any denial of natural justice, even assuming that in some cases it is necessary for a tribunal to make inquiries. There are statements to that effect in the Full Court of the Federal Court in Teoh and, again, by Justice Wilcox in Singh's Case, I think, and Justice Hely has recently summarised the authorities and it is very much a question of fact and it does not seem to me these facts get anywhere near making a case of requiring the Tribunal to make the same - applicants cannot expect the Tribunal to conduct its case for them.

MR EVANS: There is a problem, we submit, that if the focus is on the applicant producing the information, which is the position, that in the absence of representation at a hearing that they are unable to adequately convince or advocate their cause in such a way as to provide the Tribunal with the necessary confidence to overcome - - -

HIS HONOUR: Yes, but you are not talking about an applicant from some war-torn country who has got no communication with anybody. Here is a well educated applicant with a father-in-law who holds an important position, who is well connected, who has got legal practitioners, or at least lawyers in his family and who has been in fairly constant communication with people in Sri Lanka. Now, in those circumstances, why could not he have provided this independent information?

MR EVANS: In the correspondence from the Tribunal to the applicant there is a suggestion, an indication that evidence from the father was questionable, so it raises a problem for the applicant that if the evidence of the father is questionable any evidence or any information obtained by the father would suffer that same problem. So, the making of independent inquiries through the Tribunal's powers can overcome that problem.

HIS HONOUR: The legislature has given the Tribunal a discretionary power to seek further information. It is reading a great deal into it to say that in effect it is obligatory then, and a denial of natural justice for it to fail to exercise a power to make inquiries. I have to tell you I have grave doubts about the validity of the dicta in those Federal Court decisions but, assuming in your favour that they are correct, it does not seem to me that this case legitimately invokes them. It does not meet the criteria stated even in those decisions.

MR EVANS: It is our submission - I will move on but it is our submission that there is scope for an additional category, that - - -

HIS HONOUR: As Justice Hely said in a recent decision of his, that it is not the task of the Tribunal to verify the authenticity of documents that are put before it. He asserted that they were obliged to make inquiries in certain circumstances where information is readily available but the Tribunal took the view that it was not readily available and if it did, that was a fact found by it within its jurisdiction. Anyway, you were going to move on.

MR EVANS: Yes. The next point that is raised by the applicant is that there was a central proposition contained in the Tribunal's decision and from which the Tribunal makes other findings about credibility and that is that the Tribunal found that the applicant was not the kind of person who would work where he claimed to work, and that appears in the reasonings of the Tribunal as being a key issue.

HIS HONOUR: Yes, I know, but I must say there seems to be a lot said for that view but even if the Tribunal got it wrong, how is that an error, a jurisdictional error? At best, from your point of view, it is an error within jurisdiction.

It does seem rather remarkable that this reasonably well-educated man, born in Kandy, with a family in Colombo, well educated with a business degree or some sort of business certificate, is going to take himself off to the east where all this fighting is going on. It does not seem very likely, in a job that he describes is rather menial, and then when you compare that with his application in support of his student visa, all of which rings true and which he is then forced to say is now a deliberate lie. Well, it is hardly surprising that the Tribunal took the view it did concerning these claims of his.

It is always difficult to fully appreciate another country's culture but as the Tribunal pointed out the terms of the documents themselves strike one as certainly not what you would expect from Australian police or English police. I mean, they just seem, as the Tribunal said, contrived and not very well contrived.

MR EVANS: In respect of the first finding by the Tribunal about the plausibility of his story and their belief that he is not the kind of person who would do it, that proposition was not put to him and there was no evidence about the employment patterns of people with those backgrounds and we submit that the story is correct.

HIS HONOUR: But his whole case was put in. I mean, his credibility was very much on the line. It was specifically put to him on 26 November 1999 that the information in support of his student visa indicated that he had been employed and living in Colombo from at least 1991 until he left and he was invited to comment. Well, what is that other than an attack on his whole story, that between 1991 and November 1994 he was working in the east. I mean, it was squarely raised. There is no doubt about that.

MR EVANS: And a response was provided by the prosecutor's solicitor as to the reasons for the information on the student visa and reasons for that information being provided to enable him to leave the country.

HIS HONOUR: Yes.

MR EVANS: The issue we raise is that filing or putting the onus squarely on to the Tribunal is that it has made that decision of fact that it did not believe him because he did not believe this kind of person would do these kinds of things. Flowing from that is the rejection of the other issues and it comes up later - is that if that is the initial finding upon which all other findings were made, that proposition was not put to him. It is a proposition that may arise subsequently, but it was not put in that way in the Tribunal's decision and it comes up when we refer to the issue of bias that the observer of the proceedings might apprehend of the impartial - - -

HIS HONOUR: Yes, well, I have read your submissions on bias but, really, to say that there is a reasonable apprehension of bias in this case seems to me approaching the boundaries of what can legitimately be put. I just cannot see, with great respect, anything at all that would suggest there was a reasonable apprehension of bias. True it is that the Tribunal obviously was sceptical of certain parts of your client's evidence and that is plain enough from the fact that at various times he was informed or his solicitor was informed that certain matters that he had put raised considerable doubts in the Tribunal's mind; but, Mr Evans, that does not mean that there is a reasonable apprehension of bias. It is a necessary concomitant or consequence of this particular system which is an inquisitorial system, rather than a strict adversary system. But, anyway, I read what you said about it, so - - -

MR EVANS: The subsequent points go to what are under the heading of "jurisdictional errors" and they too relate to the earlier submissions. In that regard I refer back to the - - -

HIS HONOUR: One thing that puzzled me is that in your solicitor's supporting affidavit he stated that a document - at paragraph 26 he said:

To the best of my knowledge the cable CL847 of 3 April 1998 (CX29541) was not provided to the Prosecutor nor was the Prosecutor given an opportunity to comment on its content.

Am I wrong in thinking that your client's solicitor in fact supplied that cable?

MR EVANS: No.

HIS HONOUR: He did not.

MR EVANS: No, I am sorry, your Honour, but my client's solicitor did not provide the cable. The cable is referred to in a decision - - -

HIS HONOUR: I am sorry, referred to, yes.

MR EVANS: - - -relied upon and held by my client, but my client's solicitor never saw the contents of that cable. So that the decision, where the Tribunal refers to that cable, the contents of that cable not seen by the prosecutor at all.

HIS HONOUR: Yes, well, that is drawing a long bow to say that you provide the Tribunal with a document which refers to another document and then you say that the Tribunal cannot rely on that document.

MR EVANS: The Tribunal was referred to a decision, but the actual document was not forming part of that decision.

HIS HONOUR: Well, it is referred to it in it and if it is referred to in it, it must be taken to refer to everything that is in the document, either by necessary implication or expressly referred to, but anyway.

MR EVANS: Well, the reference to the document, I would submit - the decision was referred to in the context of a process of reasoning by a Tribunal member. During the course of that, they referred to a document, but the applicant is not bound by the evidence of that case nor should he be held to whatever is provided in that case in terms of the primary evidence. It creates a problem - - -

HIS HONOUR: No, but if he is going to rely on the document and he puts it forward in support of his case, then he has to take the bane with the antidote. If he wants to make any comment on parts of it that do not support his case, then it is up to him to make the comment.

MR EVANS: Assuming that the contents of the document were available to the prosecutor, as I understand it, and I submit they were not.

HIS HONOUR: Then perhaps he should have said that he did not know anything about it. But it is really stretching things to say, if an applicant refers the Tribunal to a document which refers to another document, then the Tribunal is under some duty to give the prosecutor or the applicant the opportunity to comment on the contents of that other document.

MR EVANS: The Tribunal uses quite significant sections of that cable in its decision making itself and that is the complaint in these proceedings, that the Tribunal states words to the effect that the cable does not support the applicant and then quotes significant sections from it without the applicant actually having had the opportunity - - -

HIS HONOUR: But, in any event, it is all an irrelevancy, is it not, once the Tribunal rejects your client's claim that he was ever in the East?

MR EVANS: If the rejection is based on the fundamental flaw that we submit is the case and the assumption that was made, it is relevant to the extent that it is a similar problem of information that the applicant was unable to deal with being used against him and that is the basis of that submission.

It is an error that is capable of granting prerogative relief and, as I submit, it was also in that context in terms of the sur place claim that we submit that there has been an error which goes back to the issue of the Tribunal making inquiries and on this occasion rejecting the request because of the sur place issue and we submit that there is an inconsistency in that. If the Tribunal's conclusion that there is no well-founded fear of persecution is correct, then the making of inquiries, we submit, should not give rise to the sur place claim.

HIS HONOUR: Yes, but your client sent off an extract of a decision, an earlier decision of the RRT. That extract referred to and relied on that DFAT cable and your solicitor's submission relied on that earlier RRT decision to say the fact situation in that case was similar to that of the applicant. Now, in those circumstances, how could there be any denial of natural justice by the Tribunal taking account of the facts in the cable to say that in its view the fact situation was or was not supportive of your client's case.

MR EVANS: The fact situation in the decision relied upon - I am sorry, the cable and the information contained in that cable are what the complaint is about. To hold the prosecutor to the contents of that cable, even though he has no knowledge of it, is in the same ground as the ground in....., that the evidence that is being used is not evidence that he has seen or been able to comment upon itself, but it is relied upon by the Tribunal in reaching in its adverse findings about him. So that in another sense it is like relying upon any case in any tribunal and being held to the evidence that was before the decision maker in the case that you are relying upon. The evidence that is before the Tribunal must be the evidence that is dealt with and secondary evidence or holding someone to secondary evidence as if it was primary evidence is what we complain of.

I refer to the proposition we make about the sur place claim and the failure as we submit of the Tribunal to inquire on that basis which is in its decision and, as I stated, we submit there is an inconsistency in that approach.

HIS HONOUR: If there is an inconsistency, at worst it is an error within jurisdiction, is it not?

MR EVANS: I apologise, your Honour.

HIS HONOUR: No, Mr Evans, you take your time. Do not be stressed or rushed.

MR EVANS: The proposition we put is that it is a jurisdictional error rather than within jurisdiction and I relied on the decision in Craig such that the Tribunal in this case has relied on irrelevant material to make an erroneous finding and has ignored relevant material by virtue of the rejection of the inquiries because of the sur place claim. That is the proposition we put.

HIS HONOUR: Yes.

MR EVANS: I take it no further, but just a sentence to finish, that it is inconsistent to reject something that we submit is fundamental evidence on the basis of the giving rise to sur place claims. If the Tribunal is correct that there is no well-founded fear of persecution, then the making of the inquiries should not give rise to that claim such that a sur place claim would not exist in respect of well-founded fear of persecution.

The submissions that follow that relate to unreasonableness and the proposition is that we do not submit that the decision is unreasonable because we do not like it. We submit that it is unreasonable because, as a result of the errors we refer to, then the decision is not one that a reasonable tribunal would have made. That is based on the comments of Justice Gummow in Eshetu's Case. Under the heading of "Errors of Law", but it should be a heading of its own, is the breach of statutory duty in respect of the use of video link for the applicant's appearance in the Tribunal. We submit that whilst video link has become a common practice in all courts it is not an appropriate practice where the applicant is unrepresented, is, as often as not, appearing in a forum which they are not used to or are unaccustomed to and which the language used will not necessarily be their first language.

HIS HONOUR: This is really turning the legislation on its head, is it not? The very purpose of the video link is so that the Tribunal can fulfil its duty under section 420 to have matters heard expeditiously and inexpensively. What is the alternative? The applicant is asked then to come to Melbourne to give evidence or is the Tribunal supposed to go to Brisbane?

MR EVANS: As I understand it, there is provision in the migration regulations for up to 100 members of the Refugee Review Tribunal and it raises the possibility of the placement of Tribunal members - and I have no submissions on this - but where refugees are likely to be. In this case, there is a Tribunal member in Melbourne hearing an application from an applicant in Brisbane. It is our submission that having a Tribunal member in Brisbane or in another major city is not inappropriate and it does not necessarily detract from the need for an expeditious or speedy resolution of these claims.

HIS HONOUR: In any event, even if there was a breach of statutory duty, and I do not think there is anything like a breach of statutory duty, the fact is that it would be a breach within jurisdiction, would it not?

MR EVANS: It would be a breach in that regard. It is included in this application because it is necessary to deal with all these issues in one hit. It would be something that could be dealt with by the Federal Court itself as opposed to the other matters we raise here.

HIS HONOUR: Well, you withdrew your application in the Federal Court.

MR EVANS: The application before the Federal Court was withdrawn to ensure that there is no duplication of proceedings and deal with them, as I say, in one hit, even if that means that some elements of this are remitted, and depending upon the outcome of that remittal, the remainder may not proceed. But it is my submission that it is the only element of this application that is capable of remittal because it is an error that can be dealt with, or it is a failing or a flaw, that can be dealt with by the Federal Court under its jurisdiction, especially given the decision of this Court in Abebe and also comments in Eshetu.

In terms of the actual application today, it is unfortunate that we have to bring this application here but it is the nature of the statutory regime that the issues we raise can only be dealt with here. It cannot be dealt with in the appropriate forum. So that what we - - -

HIS HONOUR: You have got a constitutional right to seek a remedy under 75(v) of the Constitution. The legislature has cut off most of your rights in respect of these matters to go to the Federal Court. That being so, you have got nothing to apologise about, Mr Evans. You put your submissions.

MR EVANS: The submissions we make are concerned with establishing that there is an arguable case and I have made reference there to a decision of Justice Kirby in Re Carmody. It is my submission that the arguments do have substance such that an order nisi should be issued and especially given that there is no other remedies available for the applicant on this occasion, apart from the one element of statutory duty which you have commented upon, that is the order we would seek today. If it please, your Honour.

HIS HONOUR: Yes. I need not hear you, Mr Hanks.

Having regard to the time, it is not possible for me to give my reasons today. I am required in the Full Court at 10.15 and I could not complete a judgment within that time. However, I do not think that the applicant should be under any stress concerning the result of this decision. I have carefully considered the material filed on his behalf and I have heard today the oral submissions of Mr Evans on behalf of the applicant. In my view, these applications for an order nisi for writs of prohibition, certiorari, mandamus and injunction must be refused and I will provide my reasons as soon as I can, probably next week some time.

MR HANKS: Yes, your Honour. There will be an application for costs on behalf of the Minister.

HIS HONOUR: Yes. What do you say about that, Mr Evans?

MR EVANS: The application - in the normal course of events costs follow the events. There is not much I can say about that.

HIS HONOUR: Yes, there is nothing about it you can say. Yes, thank you, Mr Evans.

MR HANKS: May it please the Court.

HIS HONOUR: Yes, the application is dismissed with costs.

AT 10.03 AM THE MATTER WAS CONCLUDED