Colombage v Minister for Immigration and Multicultural Affairs & Anor B57/2000 [2001] HCATrans 178 (4 May 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B57 of 2000

B e t w e e n -

MICHAEL MARASALYN GRIFFITH FERNANDO WARNAKULASOORIYA COLOMBAGE

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

G. BREWER (IN HIS CAPACITY AS A MEMBER OF THE REFUGEE REVIEW TRIBUNAL)

Second Respondent

Application for special leave to appeal

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 MAY 2001, AT 11.10 AM

Copyright in the High Court of Australia

MR W. SOFRONOFF, QC: May it please the Court, I appear for the applicant with my learned friend, MR D.C. RANGIAH. (instructed by Nicol Robinson Halletts)

MR P.G. BICKFORD: May it please the Court, I appear for the first respondent. (instructed by the Australian Government Solicitors)

KIRBY J: Yes, thank you. I have a certificate from the Senior Registrar certifying that she holds a letter from the Australian Government Solicitor on behalf of the second respondent, G. Brewer, in his capacity as a member of the Refugee Review Tribunal, advising that the second respondent does not seek to be heard in this application and will abide by the orders of the Court save as to costs.

Mr Sofronoff, can you elevate the microphone or point it in such a way - there is just a little difficulty. As you get older, you do not hear everything, and I would not want to miss a single word of yours or anyone else, for that matter.

MR SOFRONOFF: Can your Honour hear me now?

KIRBY J: Only just. You will have to speak up.

MR SOFRONOFF: Is that better, your Honour?

KIRBY J: Much better.

MR SOFRONOFF: Thank you. Your Honours, could I ask you to go to section 430 of the Migration Act 1958 ? Your Honours, it is our submission that section 430 not only sets out what the Tribunal must do after it makes a decision but it establishes what a Tribunal must do before it makes a decision. That is because section 430 obliges, for example, the Tribunal to set out, in the written reasons that it must prepare, its reasons. It follows, in our submission, that if it is to set out the reasons for the decision, the section assumes the existence, the antecedent existence of reasons for the decision.

Similarly, there is an obligation to set out, in the written statement that is to be prepared, the "findings on any material questions of fact", and it follows that there must be, in existence, before the decision, findings on any material questions of fact. Could I ask your Honours to notice the use of the expression "material questions of fact" rather than the other phrase that occurs in this area of law, "material" considerations. I will come back to that in a moment.

In our submission, then, section 430 confirms what is implicit in other provisions of the Act, such as section 414(1), section 415(1), which obliged the Tribunal to review a decision that it must look at the material, must consider it, must consider the claims made by the applicant and must make a determination first, whether the matters raised, the questions raised by the applicant are material and, if so, whether the Tribunal accepts or rejects the matters so raised by the applicant.

Your Honours, in making that submission, we do not seek to challenge the decision of Justice McHugh in Durairajasingham, where his Honour determined that the making of the written statement, the preparation of the written statement, is something that followed the making of the decision. Our submission is different. But section 430, while obliging the preparation of a written set of reasons, implicitly assumes the pre-existence of a set of reasons, otherwise, of course, any decision reached would be arbitrary.

KIRBY J: You are probably aware that this Court has had full argument on the substantive legal questions in the case of Israelian and Yusuf, and the matter stands for judgment and will be delivered in due course. But one looks at Justice Callinan's reasons in this case and I must say to you, they appear very persuasive that in the particular circumstances of your client's case, that the relevant findings of fact were made by the Tribunal, in particular, the fact that your client secured a new passport, did he not, in the interval after he had left Sri Lanka?

MR SOFRONOFF: Yes. Your Honour, could I go to those - - -

KIRBY J: And that all of this seems to make this case, even assuming anything is left over when Israelian and Yusuf are determined, a very unpromising case for lifting into this Court. You have to get leave to appeal.

MR SOFRONOFF: Yes. Could I go immediately to Justice Callinan's reasoning via the Tribunal's reasons? But before I do, could I say that this is an application for leave to appeal, an interlocutory order, not for special leave to appeal.

KIRBY J: We realise that. It is leave to appeal, but it is still leave.

MR SOFRONOFF: It is still leave, your Honour, but - - -

KIRBY J: You still need leave and you have to, therefore, show some error that would lift the matter - warrant lifting it into this Court, and I have to say to you, the facts seem very unpromising.

MR SOFRONOFF: Could I go directly to that, your Honour, because my submission is, yes, that is what we have to show, that your Honours ought not be satisfied firmly, adversely, to the existence of any error? That is the test, in our submission, and could I seek to demonstrate why we say that is so? Your Honours, the best place to find the material questions of fact, that is, those questions that were raised by my client for determination by the Tribunal, is at pages 26 and 27, which contains the reasons of the original delegate of the Minister. One can divide up these questions in issue in a number of ways, and without seeking to make more of them than they deserve, could I submit that there are 10 of them that he raised, relevantly, for consideration.

Firstly, as paragraph 5.4.1.4 on page 26 shows, he contended that he had been violently seized while blindfolded and taken away against his will. Secondly, he claimed he was "transported to an unknown location". Thirdly, then he was accused of "notifying the Tamils of the army's arrival", which indicated to the army that he was their supporter, that is, they imputed to him a political stance. This is in distinction to the earlier matter in 5.4.1.3, that there was a suggestion that he warn, now it became an accusation that he warned and that, therefore, he was a supporter. Fourthly, he had a rifle pointed at him.

Fifthly, he was threatened with death if he did not tell the truth. Sixthly, he was only able to avoid further such treatment by escaping. Seventhly, he was so frightened that he hid not only himself, but hid his wife and child. Eighthly, in the next two days, before he returned home, within a short period, in other words, of his detention and escape, his house and business were damaged by the army. Ninthly, he began to live, for safety, 150 kilometres away and, finally, while he and his wife were away the army sought to establish their whereabouts by quizzing their relatives. Now, those are the claims of the prosecutor.

KIRBY J: Do you not have to add, eleventhly, that after he was questioned he was able to obtain a passport; twelfthly, that he made a voluntary return to Sri Lanka, as he did not have to, on that passport; and thirteenthly, that he passed through the customs and immigration checks that are, presumably, enforced there, without any let or hindrance; and that is what Justice Callinan concentrated on. Looking at the matter practically, they seem to be the relevant material facts because they do cast doubt on the fear, the legitimacy of the claim of fear and persecution.

MR SOFRONOFF: It is fair, your Honour, to put as you put, that those are additional questions in issue, that the Tribunal was obliged to consider and take into account if it wanted to, and to making findings about, if it considered them to be material, and it is also fair to conclude that the Tribunal did consider those matters that your Honour mentioned, to be material, and it did make findings about them and draw conclusions as to the ultimate issue about them. However, what it neglected to do, and one can see this if one goes to page 42, is to consider the questions of fact, determine their materiality - they are plainly material in our submission - and then to make a determination whether it accepted or rejected those matters that had been raised by the claimant. Now, Justice Callinan - - -

HAYNE J: Thus the premise for your submission is that the identification of material facts depends upon the way in which the applicant for a protection visa puts the claim.

MR SOFRONOFF: Your Honour, it will almost always partly depend upon the way an applicant puts a claim because an applicant will put forward what he or she contends to be the primary matters agitating the fear of persecution.

HAYNE J: The material questions of fact thus are broader than, or different from, the questions of fact which, in the opinion of the Tribunal, are material to its decision.

MR SOFRONOFF: Yes. In my submission, the questions of fact are those thrown up, which the Tribunal is obliged to consider, perhaps to reject them as immaterial, perhaps to accept them as material if proved and then to reject them as not proved but, nevertheless, they are questions of fact which the Tribunal, unless there is some other proper reason, is obliged to engage upon. Now, these matters were, in our submission, plainly matters that if they were accepted, if they were considered and accepted, no Tribunal could have considered them immaterial. What the Tribunal failed to do here was to consider them at all with respect to gauging their materiality or whether to accept them or not.

Where we are at odds with Justice Callinan is that he saw in a single sentence of the Tribunal's reasons and a global treatment of these issues of fact. Could I take your Honour's to that sentence that his Honour acted upon? Your Honours will find it in his Honour's reasons at page 59, firstly. At the foot of the page, the 10 matters that I have encompassed - I do not mention the matters that your Honour Justice Kirby put to me because the Tribunal did consider them, obviously regarded them as material and took them into account, made findings about them and took them into account.

HAYNE J: And found they were conclusive against your client.

MR SOFRONOFF: Well, your Honour, in the absence of consideration of the other matters, found that they were conclusive against my client. Now, if your Honours look at the sentence at the foot of page 59, the Tribunal member - - -

KIRBY J: I think it is a little unfair of you to say in the absence of consideration. In the absence of finding is your criticism. But consideration could hardly have been avoided given that the whole point of referring to the three additional material facts was that they tended to cut away your 10 points at their legs. The whole point of referring to - - -

MR SOFRONOFF: But, your Honour, if you would look at the sentence at the foot of page 59, what the member did was to place those three or four adverse matters against a view that the applicant had been merely questioned about matters such as the background of his employees and their:

activities as a normal part of an investigation to establish what if any official action should be taken against them.

There is not a word in the set-out of the claims which the member sets out at pages 42 to 43 or then in his section on discussion of evidence and findings where he begins to analyse the claim.

KIRBY J: Well, it may have been better - views may differ on this - that that was done. But when you look to what material ultimately became, what was ultimately material were the findings of the three critical points that happened subsequently, which tended to show that the matters of which your client complained and which we said gave rise to their reasonable fear or the fear of persecution, were not really material because of the fact that events occurred which were not really in contest. He had the passport, he did return home and he was not stopped, which suggest that they were not in the result material.

The points you raise as to what the general principle is will presumably be dealt with by this Court and conclusively determined in Yusuf and Israelian. So the issue is whether this case, to get leave, adds something new or different. It is not very promising territory in which to seek to lift up for a second look something that has been fully argued in two cases and will be delivered in due course.

MR SOFRONOFF: Your Honour, it is true that the Court does not need yet another opportunity to consider the question that I identified at the beginning of my submission. However, if the Court determines Yusuf in whatever manner it determines the major question in that case, if we are able to point to an arguable appeal in this case, then, in our submission, leave ought to be granted. If we are unable to point to an arguable error in his Honour's reasons - - -

KIRBY J: Yes, we understand that.

MR SOFRONOFF: Yes, but, in my submission, the question whether the points in Yusuf should be reargued ought not concern your Honours because Yusuf will undoubtedly - - -

KIRBY J: Take its course.

MR SOFRONOFF: Yes. Your Honours, your Honour Justice Kirby puts to me that the Tribunal evidently concluded that his apparently free coming and going from Sri Lanka indicated that he was not - any fear of persecution that he held was not well grounded. Those are matters - - -

KIRBY J: Well, it is not only the coming and going, it is the seeking of the passport.

MR SOFRONOFF: Yes.

KIRBY J: Which is hardly something that a person with fear of persecution will normally do of a country which he thinks is going to persecute him.

MR SOFRONOFF: Your Honour, that is true so far as it goes - - -

KIRBY J: At least it is a material fact relevant to - and supports that conclusion.

MR SOFRONOFF: Of course it is, your Honour, but if the task had been properly done, the Tribunal may have concluded that since my client is not alleged to be the leader of a terrorist group, merely an unfortunate who has been dragged up and accused of being a sympathiser, that it would be consistent with the existence of a well-grounded fear of persecution, that his name did not pop up at the international borders. That it is consistent with the army having taken him, his fear of returning to his home, the destruction of his, or damage to his business premises and his house, it is consistent with that that being a small fish, the international borders were not closed to him. Now, it did not undertake that exercise because it never considered the important bases upon which he claimed to possess the fear.

Your Honours, it is often said that a tribunal in the position of this Tribunal need not engage in an analysis of the kind that one is used to observe a court engaging upon when a judge determines a matter in court. Nevertheless, giving the greatest latitude to the task that the Tribunal had to perform and the much lower standard of analysis that one expects to read in reasons, in our submission, one cannot discern, in the sentence identified by Justice Callinan, or anywhere else in the material, a consideration of those matters that had been raised.

Your Honours can compare the treatment of the Tribunal of those matter with the treatment of the delegate originally who set out each of the contentions, went on to determine whether he considered them to be material or not, and then went on to consider whether he accepted them or not, accepting some, rejecting others.

KIRBY J: Well, the Tribunal was reviewing the delegate. The Tribunal, in a sense - it could well have taken the step that you suggest it ought to have but, in a sense, it went directly to what the gravamen of the issue was and that was that when you look at the three subsequent events, they really strike at the heart, mortally, of the claim that your client was presenting and, in that sense, concentrated on the essence of the matter. In that sense, these were the material facts.

MR SOFRONOFF: Your Honour, one would not complain if the Tribunal had said something to that effect. What we complain about is the absence of any evidence in its reasons which it is statutorily obliged to -statutorily required to contain that analysis if it was made, of any such reasoning that your Honour puts to me. Now, what it did was to look at three or four matters and conclude, on the strength of them, that the case was not made out. What it was obliged to do was to consider those three or four matters if they appealed, in the light of the other matters, accepting or rejecting them. Those are our submissions, your Honours.

KIRBY J: Yes, thank you, Mr Sofronoff. The Court does not need your assistance, Mr Bickford.

In this application for leave to appeal from orders of Justice Callinan in this Court it is possible, we think, to leave to one side the correctness of the several approaches taken by different judges of the Federal Court of Australia and by Justice McHugh in this Court as to the scope of the duty to give reasons envisaged by the Migration Act (Cth) section 430(1). That issue was argued in this Court in Minister for Immigration and Multicultural Affairs v Yusuf and Minister for Immigration and Multicultural Affairs v Israelian, which stand for judgment.

In our view, the question propounded by the applicant does not arise because we agree with the conclusion of Justice Callinan that, for relevant purposes, the member of the Tribunal concerned (the second respondent) did not fail to give reasons and did not fail to take into account any relevant considerations. Therefore, the application fails at the threshold. It must be dismissed with costs.

AT 11.31 AM THE MATTER WAS CONCLUDED