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High Court of Australia Transcripts |
Sydney No P16 of 2001
In the matter of -
An application for Writs of Certiorari, Mandamus and Prohibition against the REFUGEE REVIEW TRIBUNAL
First Respondent
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Second Respondent
Ex parte -
A
Applicant/Prosecutor
KIRBY J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
FROM PERTH BY VIDEO LINK TO CANBERRA
ON WEDNESDAY, 21 NOVEMBER 2001, AT 5.04 PM
Copyright in the High Court of Australia
MS C.M. CHANG: May it please your Honour, I appear for the applicant/ prosecutor. (of Verschuer Edward Solicitors)
MR M.T. RITTER: May it please your Honour, I appear for the second respondent. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes. I have a certificate from the Deputy Registrar which indicates that - by the Australian Government Solicitor, the Refugee Review Tribunal, the first respondent, has notified the Court that it does not propose to be heard on the application and will abide by any orders of the Court save as to costs. Now, I directed that the case be called by the initial of the applicant; I think it would be wise if the initial were used. I think an application to that effect was made in the Federal Court, is that correct?
MS CHANG: Yes indeed. On both occasions the applicant was referred to as "H" in the single judge proceedings, your Honour, and referred to as "A" in the Full Court proceedings. So if I could ask again for a suppression of the applicant's name.
HIS HONOUR: Would you like him to be known as "CMC" or as "H", or what would you like?
MS CHANG: As "A", your Honour.
HIS HONOUR: "A", very well.
MS CHANG: Yes, "A".
HIS HONOUR: The applicant will, therefore, be known as "A". Now, you might identify the material that you move the Court upon in order to secure the relief that you seek. Would you just identify the affidavits that you are relying on?
MS CHANG: I will, your Honour, and thank you. May I apologise firstly for the late filing of submissions. I think I have made known to the Court about the unavailability of counsel in this matter, at the last minute. So I do apologise for that. Moving then to the record, I rely principally on the affidavit of myself, which contains various exhibits.
HIS HONOUR: Just let me make sure that I have that.
MS CHANG: It is an affidavit, your Honour, of myself sworn of 10 May 2001.
HIS HONOUR: This is an affidavit of Christina Marie Chang sworn 10 May 2001.
MS CHANG: That is correct.
HIS HONOUR: And it has a large number of exhibits that are referred to in it.
MS CHANG: Indeed, your Honour.
HIS HONOUR: Very well. You wish to read that affidavit?
MS CHANG: Yes, I do.
HIS HONOUR: Yes, very well. Is there any other affidavit that you are placing before the Court?
MS CHANG: Yes, there are documents which are important to the matter - has not been exhibited to my affidavit. They are, firstly, the transcript of the Refugee Review Tribunal proceedings. I have faxed the transcript to - - -
HIS HONOUR: Yes, I have a memorandum from the Deputy Registrar in connection with these proceedings, which I received today, which annexes seven categories of documents: the transcript of the hearing before the Tribunal; the judgment of the Full Court of the Federal Court; the transcript of the applicant's interview with the delegate; the protection visa application; the primary decision of the delegate; the application to the Tribunal; and documentary evidence which is said to have been presented by the applicant to the Tribunal. Do you tender all of that material?
MS CHANG: I tender all of that. I do not believe that my friend will have any objection to those being tendered, as they were admitted in the Federal Court proceedings.
HIS HONOUR: Very well. Is that the entirety of the evidence that you will be relying upon?
MS CHANG: Yes, indeed, your Honour.
HIS HONOUR: I might just ask Mr Ritter whether or not he has any objection to the affidavit or to the documents just identified.
MR RITTER: Thank you, your Honour. There is no difficulty in relation to the affidavit of Ms Chang of 10 May 2001. The seven categories of documents that my learned friend refers to does occasion some difficulty in that those documents do not appear to have been forwarded to my instructing solicitor today when they were forwarded to the Court, so it may create a difficulty of a practical nature if we do not have them here. My instructing solicitor is checking as to that. It may create a substantive difficulty if there is going to be reliance on some passages of those documents which we are not able to respond to today. I think that some of the documents that were referred to are annexed to the affidavit of Ms Chang in any event, so those categories of documents may not cause a problem.
HIS HONOUR: Do you have a list of the documents which I identified or not - the seven categories?
MR RITTER: No, I do not, your Honour. We did not receive that list so far as I am aware.
HIS HONOUR: Can I just go through it again so that you or your solicitor can take a note and then, if there is any unfairness to you, I will have to protect you in respect of that. Item No 1 is the transcript of the hearing before the Tribunal.
MR RITTER: I do not believe we have that in Court, your Honour, but my instructing - - -
HIS HONOUR: You do not have that?
MR RITTER: No. My instructing solicitor is - - -
HIS HONOUR: The second is the judgment of the Full Court of the Federal Court. You would probably have that I would think.
MR RITTER: We do have that. That was annexed to the affidavit of Ms Chang as well.
HIS HONOUR: Very well. The third is the transcript of the applicant's interview with the delegate.
MR RITTER: My instructing solicitor is checking. I am not aware that we have that in Court at the moment.
HIS HONOUR: The fourth is the protection visa application.
MR RITTER: That was annexed to Ms Chang's affidavit.
HIS HONOUR: The fifth is the primary decision of the delegate.
MR RITTER: That was annexed to the affidavit of Ms Chang.
HIS HONOUR: The sixth is the application to the Tribunal.
MR RITTER: Yes, that was also annexed to the affidavit.
HIS HONOUR: The seventh is documentary evidence presented by the applicant before the Tribunal.
MR RITTER: That was not annexed to the affidavit and my instructing solicitor is just checking as to whether we do have that.
HIS HONOUR: It looks as though of the seven items, you have item 2, item 4, item 5 and item 6 and, therefore, the only items that you do not have are the transcript of the hearing before the Tribunal, that is item 1, the transcript of the applicant's interview with the delegate, item 3, and the documentary evidence presented by the applicant to the Tribunal, item 7. So would you just let me know whether you have those documents, in which event I will admit the documents which you have in Court as exhibit A and the individual documents, if necessary, can be referred to as A2, A4, A5 and A6. But I will not at this stage admit the first, third and seventh category of document because I do not think it is reasonable that you should have to deal with material that you do not have and has not been given to you on notice. It is not as if this is a case that has not had a history. It has been before the Court before.
MR RITTER: Yes. Your Honour, whilst on my feet, could I mention one other matter. That is that my instructing solicitors forwarded to your Honour's associate today the reasons for decision of the Refugee Review Tribunal which did not seem to be otherwise before the Court.
HIS HONOUR: Yes, I have that.
MR RITTER: That, with respect, would be a document relevant to the matter before the Court today.
HIS HONOUR: Very well. You would wish to tender the reasons of the Tribunal?
MR RITTER: That would be appropriate, yes, your Honour.
HIS HONOUR: Very well, I will mark that exhibit 1. I take it you have no objection to that, Ms Chang?
MS CHANG: Not at all, your Honour, thank you.
EXHIBIT: Exhibit 1.....Reasons of Tribunal
HIS HONOUR: Very well. May I ask you why copies of these documents were not sent to the solicitor for the second respondent at the time that they were sent to the Court.
MS CHANG: Yes. I must admit, your Honour, in all honesty, I thought they had been forwarded. I certainly made a direction to my staff to do that. Clearly, it has not been. I cannot explain why it has not been.
HIS HONOUR: No, I will just have to protect the second respondent in respect of those matters because if they have not got them and were not on notice it is a bit unreasonable to ask them to deal with them today.
MS CHANG: Yes. I must say my concern with that, your Honour, is if that were the case I will be relying on many parts of the transcript, as well as the delegate interview, to establish the grounds for the order nisi. If you cannot admit that into evidence, certainly the applicant's case before you this afternoon, I believe would - - -
HIS HONOUR: How can I admit it into evidence if the respondent has not received it and has not had time to look at it, consider it, and does not even have it in Court to look at when you are referring to it?
MS CHANG: Indeed, yes. I appreciate that difficulty. I was going to say, your Honour, if you are minded, that because these documents are so important to the applicant's case; and clearly, they have not been provided to the respondent; and clearly, they will then suffer prejudice as a result; I am wondering whether your Honour would be minded to grant an adjournment of this matter at the applicant's cost, in view of that.
HIS HONOUR: Well, what is your attitude to that application, Mr Ritter? It is said that these documents are essential and that the applicant cannot really present his case without having the documents, and the applicant - - -
MR RITTER: Your Honour, I can give you an update on what we have. My instructing solicitor has now located amongst his bundle of documents the Refugee Review Tribunal transcript and the transcript of the interview by the delegate. My instructing solicitor is still unsure whether he has document No 7. We are placed in a difficult situation, as your Honour will appreciate, not having been given notice that these documents were at all relevant to these proceedings, let alone key documents. We have not had the opportunity to study them and prepare answers to any submissions which may be made to the submissions of the applicant, so that there is certainly potential prejudice to the respondent. Having said that, the respondent - - -
HIS HONOUR: Yes, but if you have it in court, that sort of prejudice is the kind of matter that I could deal with and protect you in respect of any submissions that you have to make later.
MR RITTER: Yes.
HIS HONOUR: The only document, therefore, in exhibit A which you do not have is the documentary evidence presented by the applicant to the Tribunal. That is the only one that you do not have. Now, perhaps I can ask Ms Chang how substantial that compilation is, that is to say, item 7. Is that a very large document, Ms Chang?
MS CHANG: Yes, it is, because part of that evidence relates to the applicant's activities in Australia, which finds his fear of persecution were he to be returned to Myanmar - Burma. It includes, for example, photographs of the applicant's participation in various anti-Burmese Government activities whilst he has been in Australia. So it relates to the application - - -
HIS HONOUR: Is that something that preceded the decision of the Tribunal?
MS CHANG: It was also before the Tribunal. Those photographs were tendered to the Tribunal by the applicant. It relates to the applicant's claim for - - -
HIS HONOUR: These documents are not paginated and, therefore, I have to try to work out where the documentary evidence begins. The documents are numbered, but the numbers appear to relate to earlier - - -
MS CHANG: Yes, I believe, your Honour, those numbers might relate to the numbering of the appeal book, as the documents that you have there were incorporated into the appeal book in the Federal Court proceedings.
HIS HONOUR: I think I have now found, amongst all of this material, item 7, documentary evidence presented by the applicant to the Tribunal. Does that begin with a certificate by Dr Kyi Kyi Sann? Is that the first item in that collection, that is to say documentary evidence presented by the applicant to the Tribunal?
MS CHANG: Yes, your Honour, and then they comprise also - - -
HIS HONOUR: If I look at that, that is only about seven or eight pages. That is the only document which Mr Ritter does not have. So would it not - - -
MS CHANG: Your Honour, I am not sure whether Mr Ritter also has - and I think I have brought it to the Court - photocopies of the photographs as well as correspondence - - -
HIS HONOUR: Yes, they are amongst - they are not particularly clear, but there are photocopies of photographs in what is item 7 of the attached documents that were sent to this Court today. So there are nine pages constituting item 7, documentary evidence presented by the applicant to the Tribunal. Could you make that available to Mr Ritter now?
MS CHANG: Yes, your Honour.
HIS HONOUR: Perhaps his solicitor could have those photocopied so Mr Ritter has those in Court.
MS CHANG: Your Honour, I am pleased to advise that Mr Ritter has now found those documents and he has them.
HIS HONOUR: So he has all of the documents that you sent to the Court today, is that your understanding?
MS CHANG: Yes, your Honour.
HIS HONOUR: Perhaps I might just ask Mr Ritter to confirm that.
MR RITTER: That appears to be the case, your Honour. My instructing solicitor has found one of the appeal books, which was presented to the Full Court, which appears to contain all of the documentary evidence that my learned friend is referring to.
HIS HONOUR: So that the result is, after this somewhat tiresome inquiry, that all of the items in exhibit A that were originally tendered, including items 2, 3 and 7, are in your possession?
MR RITTER: That would appear to be so, yes.
HIS HONOUR: I will admit all of those documents as exhibit A.
EXHIBIT: Exhibit A.....Documentary evidence presented by the applicant to the Tribunal.
If in the way in which the applicant deals with them the second respondent is in any way disadvantaged, or if you have not had the full opportunity to consider the documents and need time, I will protect you in that regard.
MR RITTER: Thank you, your Honour.
HIS HONOUR: Do you have any other evidence that you wish to place before me save for exhibit 1, which is the decision of the Tribunal in this case?
MR RITTER: No, thank you, your Honour.
HIS HONOUR: Very well. Do you have any evidence in reply, Ms Chang, to the material that has been tendered by Mr Ritter?
MS CHANG: None, your Honour.
HIS HONOUR: So, that is the entirety of the evidence?
MS CHANG: Yes.
HIS HONOUR: I should perhaps ask Mr Ritter: you said that there was no trouble in the receipt of the affidavit of Ms Chang. Perhaps I should formally ask you to indicate whether or not you wish to ask any questions of Ms Chang on her affidavit.
MR RITTER: No, I do not, your Honour.
HIS HONOUR: Very well. We have the evidentiary foundation for the case. What do you say, Ms Chang? In so far as you asked for an adjournment, I refused the adjournment because it is not necessary, having regard to the fact that the second respondent has in Court all of the documents, but you have heard me say that if as a result of the late tender of those documents there is any unfairness to the second respondent, I will have to grant an adjournment and that will have to be at the cost of your client.
MS CHANG: Indeed, I am obliged to your Honour.
Your Honour, if I could move now, then, to the matter before you. There is, of course, the preliminary issue as to whether or not the applicant cannot succeed simply because of the time limits.
HIS HONOUR: Do I understand the time consideration to be that the decision of the Full Court of the Federal Court was on 19 April 2001 and the application to this Court was on 10 May 2001, that is to say, within a period of about three weeks of the decision of the Full Court?
MS CHANG: That is correct, your Honour.
HIS HONOUR: Yes. For the moment, I think you should proceed on the basis that I would, pending any argument by Mr Ritter, not be inclined to hold the delay against the applicant because, otherwise, the logic of that is that in every case people have to bombard the High Court of Australia with applications which should properly be proceeding in other places, not here.
MS CHANG: Indeed, that was the very point that I was going to make, your Honour, if my friend had pursued the time argument. Certainly the delay here is not unwarrantable. It has only been three weeks. The applicant has exhausted all avenues in so far as the Federal Court is concerned and he now no longer has - - -
HIS HONOUR: I do not wish to appear to be ungrateful for the jurisdiction which the Parliament has ensured comes to this Court by virtue of the provisions of the Migration Act. However, where it is possible for the matters to proceed in the Federal Court, it certainly would be my preliminary view that that is where they should proceed and not in the High Court of Australia. We have enough to do.
MS CHANG: Indeed, your Honour, thank you.
HIS HONOUR: Yes, what do you say?
MS CHANG: Right. If I could now go through what the prosecutor or should I say applicant seeks before you. Firstly, we seek a writ of prohibition directed to the Minister, prohibiting him or his agents or delegates from acting upon or enforcing the Tribunal's decision, which confirms the original decision of the delegate refusing the protection visa. Secondly, we are seeking a writ of certiorari, seeking to quash the decision of the Tribunal, dated 12 November 1999.
HIS HONOUR: Yes?
MS CHANG: Yes, and thirdly, we seek a writ of mandamus directed to the Tribunal to grant the visa to the applicant or, alternatively, to redetermine the applicant's case before a differently constituted Tribunal according to law. I have also sought a further order for declaration that the Tribunal's decision, dated 12 November 1999, is also invalid.
Now, what turns on that is if the application of the applicant is ultimately successful, the Federal Court proceedings also falls away - the decision of the Federal Court, including the Full Federal Court, will also fall away.
HIS HONOUR: Yes. I have seen the form of the draft order nisi and I understand the relief that you seek.
MS CHANG: Thank you, your Honour.
HIS HONOUR: In order to obtain an order nisi from me you have to show that that relief, or some other relief which is within the ambit of that relief, is reasonably arguable before this Court.
MS CHANG: Yes, indeed, your Honour. There are two main grounds that the applicant relies upon to found the application, if I could turn to each of them in turn. Firstly, the ground relied upon is one of breach of natural justice. There are two main instances here where the applicant argues that there has been a breach of procedural fairness, or put differently - - -
HIS HONOUR: Are these matters that could be and were dealt with in the Federal Court, or by virtue of section 476 of the Act are they excluded from the jurisdiction of the Federal Court?
MS CHANG: Yes, they were, however, it does not exclude this honourable Court from hearing that ground, your Honour, and I rely on the - - -
HIS HONOUR: What are the grounds of natural justice that you rely on? What is the evidence?
MS CHANG: All right. Firstly, if I could turn to the primary decision of the delegate - - -
HIS HONOUR: Is that in your affidavit or is that in exhibit A?
MS CHANG: That is in the exhibits before you agreed upon this afternoon.
HIS HONOUR: Yes, very well.
MS CHANG: The instance there is that - - -
HIS HONOUR: Just a moment, I will have to get the document. Is that a document that starts "Protection Visa Decision Record"?
MS CHANG: Yes, that is right, and I will also refer to the transcript of the delegate interview, your Honour.
HIS HONOUR: Let us take it step by step. First of all, what is the ground of breach of the rules of natural justice or procedural fairness that you are relying on?
MS CHANG: All right. We believe that there has been an actual bias on the part of the decision-maker in that there has been a pre-judgment of the whole matter. I turn now also to the decision of the single judge, his Honour Mr Justice French, on page 3 of his Honour's decision, in the penultimate paragraph - - -
HIS HONOUR: Where do I find that? That is exhibit 6 to your affidavit, is it?
MS CHANG: Yes.
HIS HONOUR: It is page 61. Now, what page of the affidavit? It begins at page 61. What page are you referring me to, of Justice French's reasons?
MS CHANG: If I could ask you to refer to page 66 of my affidavit, your Honour.
HIS HONOUR: I am sorry, I did not hear the page.
MS CHANG: Page 66, your Honour.
HIS HONOUR: Page 66, very well.
MS CHANG: If you look at the second-last paragraph on that page - - -
HIS HONOUR: That is paragraph 5 of the decision of Justice French?
MS CHANG: Yes, I believe so, and it says and I quote:
The interview as it appeared from the transcript was notable for the intrusive and challenging approach taken by the delegate. Given the tone of the interview, a decision adverse to H could confidently have been anticipated.
Now, from that, it can be seen that there is some evidence of prejudgment on the part of the decision-maker, so much so that even his Honour Mr Justice French had noted that in his decision.
HIS HONOUR: But can it be said that the fact that there was a provision for application for review to the Tribunal from the decision of the delegate, and that you took advantage of that facility, that the fact that the delegate was in any way antipathetic to the applicant is irrelevant, because it could be fixed up by the proceedings before the Tribunal?
MS CHANG: Indeed. However, I think what has to be remembered here is that my client was not legally represented in the Tribunal proceedings. He had to make the application on his own. He is not a professional litigant. He was not legally represented and could not be seen to have competently argued the point of law at the Tribunal.
HIS HONOUR: No, but that would not be the sort of matter that the Tribunal could fix up anyway, I do not think, is it? The Tribunal simply reviews the matter by proceeding to make its own decision. If you had an objection of a procedural fairness kind, that would be the type of objection which would have to be brought to this Court, given that the Federal Court cannot intervene.
MS CHANG: That is right, yes. Hence, we are here before you today, raising what would appear to be a new ground pursuant to section 75.
HIS HONOUR: You have an objection to the procedural fairness of the proceedings before the Delegate but, given that the grant of constitutional relief is discretionary, why would I grant constitutional relief to go over this old field, which is such a long time ago, when in the meantime the matter went before the Tribunal and you do not make any complaint about the procedural fairness of the proceedings before the Tribunal?
MS CHANG: I think this is where there is the argument that we are dealing here with somebody seeking asylum and we need to be mindful of the human rights issue. That is quite evident in applications of this nature. It would be a sad day really if my client is forced to return to Burma and faces persecution, perhaps even torture or death, simply on a technicality that an issue was not taken previously.
HIS HONOUR: Your client has apparently been twice granted a Burmese passport by the Burmese Government, which no doubt you will deal with in due course, but that rather suggests, as has been found in the proceedings below, that he is not really subject to the intervention of the Burmese Government against him. They are hardly likely to give a passport to somebody who is on their list of political activists.
MS CHANG: Yes. However, your Honour, if I can direct your attention to that part of the applicant's case where he says the reason he had the passport was he had to pay money, and there is a widespread practice of corruption where persons such as the applicant are able indeed to obtain a passport simply through - - -
HIS HONOUR: Is this proved in evidence before me or not?
MS CHANG: I will refer to that part of the evidence as I go through my submissions with you, your Honour.
HIS HONOUR: In any case, I think there are some things said in Miah's Case or in Aala's Case about the right of a person to have a correct primary decision as well as correct review decisions. For the moment I will just make a note that your first complaint is of actual bias on the part of the delegate and you put in support of that the finding which Justice French mentioned in paragraph 5 of his reasons. You said that you had two complaints of natural justice. What is the second one?
MS CHANG: The second complaint now relates to the actions of the Tribunal itself. The basis of that complaint is that the Tribunal considered in evidence extrinsic evidence. By that I mean it relied on country reports and the Department of Foreign Affairs and Trade tables as to whether or not the applicant would face a chance of being subjected to persecution if he were to return to Burma. When the applicant was before the Tribunal he was not given any opportunity whatsoever to respond to such evidence. It was not put to him, the effect of the country reports or the tables.
HIS HONOUR: He was not given a copy of the cable before the Tribunal?
MS CHANG: No. There is no evidence of that having been done, in any of the materials before the court or the Tribunal.
HIS HONOUR: He was not told the substance of the material in the cable?
MS CHANG: It has not been mentioned in the transcript in the Refugee Review Tribunal proceedings, your Honour.
HIS HONOUR: Do I have the transcript before the Tribunal before me, that is exhibit A1, is it?
MS CHANG: Yes, indeed, your Honour.
HIS HONOUR: Yes, very well.
MS CHANG: Now, for that ground I rely on the case of Akpata, a decision of his Honour Justice Mansfield dated 20 November 1998.
HIS HONOUR: Yes. Do I have a copy of that decision?
MS CHANG: No, I am sorry, your Honour, you do not. I apologise for that.
HIS HONOUR: What does Justice Mansfield say?
MS CHANG: If I could read from that decision, your Honour. It was held that the extrinsic evidence was material to findings made by the Tribunal in that case. The applicant ought to have had the opportunity to comment on and respond to this evidence and, by its failure, the applicant had been denied procedural fairness. In that case the Refugee Review Tribunal had considered extrinsic evidence including media reports regarding the state of political affairs in Nigeria. The applicant in that case was not given the opportunity to respond to that piece of evidence. Certainly the evidence, as in this case, also added weight to the Tribunal's findings that his claims for refugee status lacked credibility.
HIS HONOUR: Are you familiar with the case of Miah v The Minister?
MS CHANG: Yes, I am, your Honour.
HIS HONOUR: Is that the case from Bangladesh?
MS CHANG: Yes.
HIS HONOUR: My memory may be playing me tricks, but I thought that was a case in which there were some departmental cables which painted a picture of the conditions in Bangladesh which, it was argued, ought to have been drawn to the notice of the applicant so that the applicant could respond to them. Is that not a decision of this Court rather than one of a single judge of the Federal Court? Would we not do better to have a look at what Miah says about the matter?
MS CHANG: I think that case could be distinguished, your Honour, on the basis that there was no evidence presented by the applicant of another perception of matters in his country of origin. In this case, the Tribunal - - -
HIS HONOUR: But Miah is a case where the High Court granted relief.
MS CHANG: Yes, on other grounds, as I understand that decision. Certainly in this case, your Honour, the Tribunal had ignored the evidence of two independent witnesses that attended the Tribunal hearing, namely the applicant's sister, and also the evidence of - - -
HIS HONOUR: Yes, in any case, that is the second basis for natural justice.
MS CHANG: Yes, indeed, your Honour.
HIS HONOUR: Do you accept that it is necessary for you, in order to get a constitutional writ, to show that there is a jurisdictional error that has occurred?
MS CHANG: Yes, indeed.
HIS HONOUR: Very well, natural justice has been held to be jurisdictional error and, therefore, if you can make good one or other of those two arguments that you put before me as reasonably arguable, then that would give a foundation for the grant of the order nisi.
MS CHANG: Yes, that is correct, your Honour.
HIS HONOUR: What are the other grounds? You said, I think, that you had eight grounds, is that correct?
MS CHANG: I had the other grounds for jurisdictional errors, that is right. I do not know whether - does your Honour have a copy of my outline of submissions in which I have - - -
HIS HONOUR: Yes, that arrived at a very late stage.
MS CHANG: Yes, again, I apologise for that, your Honour. If I could turn to page 5 of the outline.
HIS HONOUR: Yes. You have indicated to me the jurisdictional error based on breaches of the rules of natural justice. What is the second basis?
MS CHANG: I am sorry, your Honour, I did not catch that.
HIS HONOUR: You have indicated the two aspects of the breaches of the rules of natural justice that you rely on, namely the actual bias on the part of the original delegate and, secondly, the breach by the Tribunal of the rules of natural justice in failing to draw to the notice of the applicant new material concerning the country situation in Burma. That is your first ground. What is your second ground?
MS CHANG: The second ground relates to jurisdictional errors committed by the Tribunal, your Honour.
HIS HONOUR: What is that error?
MS CHANG: There are numerous errors and I would turn to my affidavit in which I have outlined in each case various failures of the Tribunal to look into the matter properly.
HIS HONOUR: You will have to identify exactly what the grounds are that you are relying on, because I have to be satisfied that there is a reasonably arguable case, otherwise I do not grant an order nisi on that ground.
MS CHANG: Very well, your Honour. If I could turn then to each case of jurisdictional error. Firstly, we would argue that the Tribunal had failed to take into account various considerations in deciding whether or not the applicant has a real chance of persecution and that his fear of persecution is indeed well founded. That is the first matter. The second matter is that the Tribunal has failed to take into account various considerations.
HIS HONOUR: I think we will just deal with them one by one, so you tell me the evidence that supports that first jurisdictional error that you assert.
MS CHANG: If I could perhaps turn to page 4 of my affidavit. I have outlined a number of matters in that affidavit which included the failure of the Tribunal to consider the evidence of the applicant's activities since his arrival in Australia.
HIS HONOUR: What are those activities and where do I find them proved?
MS CHANG: They are contained in the exhibits which are the photographs of the applicant's participation in activities in Australia with the Tribal Refugee Welfare.
HIS HONOUR: Were they placed before the Tribunal?
MS CHANG: Yes, indeed.
HIS HONOUR: Do you say they are not mentioned in the Tribunal's decision?
MS CHANG: No, they are not.
HIS HONOUR: There is a question as to whether you can establish a well-founded fear by reason of events that have occurred after you have sought the protection visa. My recollection is that that question has been decided in the Federal Court and there was a challenge by the Minister to the proposition that you could rely upon post-visa application conduct that was due to come before this Court, special leave having been granted, in Perth in October but the applications were withdrawn so that the Court did not proceed to hear the application. Do you know anything about that, or not?
MS CHANG: No, I am not aware of that, your Honour.
HIS HONOUR: May be Mr Ritter or those instructing him will know about the state of authority on post-protection visa application conduct in Australia as a foundation for a well-founded fear of persecution upon return to a country of origin.
MS CHANG: Yes. I think what must also be mentioned in this case, your Honour, is that certainly the applicant's involvement in such activities was not made simply to find an application for refugee status. I think is some of the cases that you refer to the applicant had knowingly participated in the activities so as to make himself liable to persecution. He created his own - - -
HIS HONOUR: You say that, but you will understand that one objection to this type of argument is that it represents a "boot straps" proposition, namely, that a person can come to Australia, claim a protection visa without, as it may be assumed any merit, and then to try to get merit by conducting himself or herself in Australia in such a way as to put the person in peril if they return to their country of nationality, so that is the area of debate.
MS CHANG: Yes, but in this case, your Honour - - -
HIS HONOUR: Why should a person be able to put themselves in to a better position than they were when they made their application for protection visa by reason of their post-arrival conduct, as distinct from the situation of their state of fear at the time they left the country of nationality?
MS CHANG: Yes, but are we not forgetting though, your Honour, that in this case he had engaged in similar conduct from Burma, when he was in Burma. It was not a matter where he did not fear persecution in Burma, then came along to Australia and then participated in anti-government activities so as to render himself to persecution. That is not the case here. He has always participated in anti-government activities for which he claims he was detained, and tortured, and put under surveillance. He comes to Australia seeking asylum and whilst in Australia continued those activities.
HIS HONOUR: Yes, very well, that is the first of the grounds. Is there anything else? Failure to take into account various considerations relevant to a real chance of persecution?
MS CHANG: Yes, your Honour. The next ground is that - - -
HIS HONOUR: Where are you reading from?
MS CHANG: I am reading from my submission, your Honour, if I could refer to point 4.
HIS HONOUR: What paragraph?
MS CHANG: Paragraph (iv), that begins, "The Tribunal erred in law".
HIS HONOUR: Paragraph (iv)?
MS CHANG: Yes.
HIS HONOUR: On what page?
MS CHANG: On page 5.
HIS HONOUR: What page?
MS CHANG: Page 5, your Honour.
HIS HONOUR: I see, it is small roman 4.
MS CHANG: Yes, that is right.
HIS HONOUR: Yes.
MS CHANG: Now, we say, the Tribunal had committed an error of law in failing to identify inferences from material facts and which might have established a real chance of persecution. In this case, the inferences can be drawn from the evidence of the sister that the authorities had been looking for the applicant and, also, the inference can also be drawn from the evidence of the other witness, that said: applicants who are returned to Burma can sometimes face persecution. If I can turn now to small roman - - -
HIS HONOUR: Where do I find the evidence of those witnesses?
MS CHANG: In the transcript of the Refugee Review Tribunal proceedings.
HIS HONOUR: Is that part of exhibit A? That is exhibit A1.
MS CHANG: Yes, your Honour.
HIS HONOUR: What page of that transcript?
MS CHANG: Page 16, your Honour.
HIS HONOUR: Whereabouts on that page?
MS CHANG: At two-thirds of the way down the page, your Honour.
HIS HONOUR: This is the evidence of the applicant.
MS CHANG: Yes, that is right.
HIS HONOUR: Well, would one not infer that the Tribunal did not accept this evidence on the part of the applicant?
MS CHANG: It certainly has not made a finding on that, your Honour. It has not mentioned that it has rejected the evidence, in its decision.
HIS HONOUR: Well, it may not have said so in terms, but is it not inevitable, on its findings, that that is the view that the Tribunal took? That, on this matter, it would not accept what your client said.
MS CHANG: Yes, but since that is so crucial to the applicant's claim - that were he to be returned to Burma, he would be persecuted - that is a material fact, which it must make a finding.
HIS HONOUR: Very well. What is next?
MS CHANG: The next item, your Honour, is that the Tribunal had acted beyond its jurisdiction to give adequate weight to the whole of the applicant's claims and evidence in support of them.
HIS HONOUR: Is this part of the failure to take into account various considerations, or is this a new and separate jurisdictional error?
MS CHANG: It is an overlapping argument, your Honour. It is the cumulative effect of the applicant's claims - - -
HIS HONOUR: What is this ground?
MS CHANG: That the Tribunal acted beyond its jurisdiction in failing to give adequate weight to the cumulative nature of evidence presented by the applicant.
HIS HONOUR: I am sorry, I am not hearing the latter part. I heard you say that the Tribunal acted beyond its jurisdiction.
MS CHANG: Yes, by its failure to give adequate weight to the applicant's claims and evidence in support of them.
HIS HONOUR: But that appears to be not an argument of a jurisdictional error, but simply the weight that is given. That seems to be, if anything, a complaint about the exercise of jurisdiction, rather than the erroneous failure to exercise it or going beyond it.
MS CHANG: Yes, but I suppose the argument can be phrased in this way, that by not looking at the totality of evidence, it has not exercised its jurisdiction or it has exercised it improperly and, hence, in excess of its jurisdiction.
HIS HONOUR: Yes, what is the next ground?
MS CHANG: That completes the jurisdictional grounds, your Honour.
HIS HONOUR: Yes. Are there any other grounds that you rely upon?
MS CHANG: They are all the grounds I rely upon.
HIS HONOUR: So that your grounds are all jurisdictional. Breach of the rules of natural justice are jurisdictional grounds. But you divide your case into two parts, as I understand it, the natural justice case and the other case.
MS CHANG: Yes, indeed.
HIS HONOUR: The natural justice case is related to alleged bias on the part of the delegate and the failure of the Tribunal to reveal the DFAT cable and the other grounds relate to the failure to take into account considerations which you say bear upon the real chance of persecution and the failure to identify inferences from materials that were before the Tribunal and the failure to give adequate weight to the totality of the evidence before the Tribunal.
MS CHANG: Yes, that is right. Importantly on that is the Tribunal made a finding of the applicant's credibility because he could not remember, for example, certain dates as to when the matters had occurred, therefore, ignoring the evidence that the applicant may have been traumatised and psychologically affected and, therefore, gave evidence perhaps not as well as one might have hoped. Certainly that would appear to be the case here because I have annexed in my affidavit the report from the association of the traumatic torture survivors which shows that the applicant's demeanour in the proceedings can be explained by the fact that he had been tortured and, therefore, his recollection of certain events are not clear.
HIS HONOUR: Where is the finding by the Tribunal? I have the Tribunal's decision and reasons for decision. What page is it that the Tribunal refers to the credibility of the applicant?
MS CHANG: It refers to it in a number of areas. If I could just give you some examples. If I could turn to page 10 of the Tribunal's decision.
HIS HONOUR: Yes, which paragraph?
MS CHANG: Paragraph 3, your Honour.
HIS HONOUR: Does that begin:
The Tribunal does not accept that the applicant was involved with or a member of the NLD, or any student group under the NLD, nor that he campaigned on their behalf in 1990.
MS CHANG: Yes, your Honour. Now, for example, the Tribunal had formed the view that the Tribunal finds that it was implausible for the applicant to have said that he could not get an identity card, and the Tribunal also concluded that because the applicant did not know who U Tin Oo was, that somehow he was not a member of the student group. The Tribunal would expect someone who was involved with the NLD to know that U Tin Oo was the founder of the NLD and has spent lengthy periods of imprisonment because of his involvement with the NLD.
HIS HONOUR: Would that not be like asking an Australian, who said he was a member of the Young Labour Movement, who did not know of Mr Whitlam? One would have expected that if he were involved, he would know the name of the founder of the NLD, would one not?
MS CHANG: Yes, but again I come back to what I said earlier. We have here somebody who does not speak English, has been traumatised and tortured and, therefore, would possibly suffer from memory lapses. There may also be a question that he did not properly understand the question that was put to him. I do not think we can expect an asylum seeker to be so perfect in their claims, otherwise really nobody would ever be granted asylum. They would need to be legally trained before they would be granted asylum.
HIS HONOUR: It is now after 6 o'clock in eastern Australia. I will, therefore, excuse the officers of the Court if they wish to go. The only one who cannot go is the sound recorder. They can leave when it is convenient to them.
MS CHANG: Thank you, your Honour.
HIS HONOUR: Yes. There was a complaint in the Federal Court about the fact that your client asserted that he had been tortured and that the Tribunal did not deal with that aspect of his assertions. Is that the case?
MS CHANG: That is correct.
HIS HONOUR: Where that could be - - -
MS CHANG: Although it accepted that he was arrested and detained.
HIS HONOUR: It accepted that he was arrested and detained. Where is that?
MS CHANG: That is on page 9 of the decision, your Honour:
The Tribunal accepts that he was arrested for his involvement -
but simply did not accept the length of time that he was detained, finding that my client was not a high level organiser.
HIS HONOUR: Yes, and it simply does not mention the question of torture.
MS CHANG: Yes.
HIS HONOUR: Where did your client say that he was tortured? Is that in the transcript of the hearing before the RRT?
MS CHANG: It was part of the claims put forward by the applicant in the initial application.
HIS HONOUR: Where is that? Is that part of exhibit A?
MS CHANG: Yes, it is, your Honour. If you bear with me I will find the - - -
HIS HONOUR: I think that is exhibit A6.
MS CHANG: That is correct.
HIS HONOUR: Where does he mention that he was tortured?
MS CHANG: If I can turn to the transcript on page 7, the applicant had replied:
When they interrogated me I give no response to them and they tied and beat me and [I was] unconscious and thinking that I will die when they sent me back home.
HIS HONOUR: If it is alleged that the Tribunal committed jurisdictional error by failing to refer to a matter so important as torture, then I want to have the foundation for that argument. I am looking at pages 6 and 7 of the transcript of the applicant's evidence before the Tribunal and I cannot see there any specific reference to torture. Similarly, when I look at the actual application which the applicant lodged in support of his application for a protection visa at the outset which is amongst exhibit A, I cannot see any reference there to torture. If you are relying on this, you will have to help me by referring to the evidence.
MS CHANG: Very well, your Honour. If I could refer again, please, to page 7. This is a question posed by the member to the applicant.
HIS HONOUR: Whereabouts is this?
MS CHANG: About five lines from the bottom, your Honour.
HIS HONOUR: I see:
they tied and beat me and [I was] unconscious and thinking that I will die when they sent me back home.
That sounds like police misconduct which was quite common in Australia until quite recently. It does not sound like torture.
MS CHANG: I do not think being tied and beaten up is not torture. The fact is torture can mean mental torture. The fact that you are tied up and beaten simply - - -
HIS HONOUR: But they sent him home. They gave him a hiding and sent him home, which is what police used to do in this country until quite recently. Some people think they should still do it. I do not, but some people do. However, that is the torture that you rely on, is it?
MS CHANG: Yes, indeed, your Honour.
HIS HONOUR: It does not seem a very prolonged or substantial example of torture, given the kinds of cases that one sees here. However, that was not mentioned in the applicant's handwritten application which he originally made.
MS CHANG: No, it was not but, again, we are not dealing here with somebody who is trained in how to fill in an application.
HIS HONOUR: Yes, all right. Is that the whole of the grounds upon which you rely?
MS CHANG: Yes, your Honour, that is correct.
HIS HONOUR: Yes, very well. Is there anything else that you wish to say in support of the application for the order nisi?
MS CHANG: That is the substance of my argument, your Honour, thank you.
HIS HONOUR: Yes. I will hear what Mr Ritter has to say.
MS CHANG: Thank you.
HIS HONOUR: Mr Ritter, first of all, having regard to the way in which Ms Chang has presented the case, are you at a disadvantage in dealing with the evidentiary materials in exhibit A upon which Ms Chang has relied belatedly?
MR RITTER: There are some elements of disadvantage, your Honour, in particular in relation to the suggestion by my learned friend that the failure by the Tribunal to put country information before the applicant constituted a denial of natural justice.
HIS HONOUR: We do have the transcript, apparently, of the proceedings before the Tribunal.
MR RITTER: We do.
HIS HONOUR: They will either reveal that the Tribunal brought the substance of country information contained in the DFAT cables to the Tribunal, or it did not.
MR RITTER: That is so. My disadvantage is that I cannot assist your Honour with that process today, not having previously received that material or being aware of the substance of that part of the argument.
HIS HONOUR: Do you accept that if the Tribunal does not bring to the notice of an applicant the substance of up-to-date country information which is produced to the Tribunal by one side, or by the Department or the Secretary, in opposition to the claim for the protection visa, that that would constitute a breach of the rules of procedural fairness?
MR RITTER: No, we do not accept that, your Honour.
HIS HONOUR: Why not?
MR RITTER: Two reasons: one is that is a general comment; another is the particular circumstances. The general proposition relates to the particular powers which the Refugee Review Tribunal has in relation to the conduct of hearings such as this one and, in particular, section 424A, involving the requirement to provide certain information to applicants.
HIS HONOUR: But was this not a matter that was considered in Miah's Case, the case of the man from Bangladesh, or am I confusing it with another case?
MR RITTER: I hope I am not confusing it, your Honour, but my recollection of Miah's Case was that it involved the decision of the delegate, as opposed to a decision of the Refugee Review Tribunal, and that these specific types of powers that I am now referring to were not considered by the Court in Miah.
HIS HONOUR: What does section 424 say?
MR RITTER: It is section 424A. What that section provides for is that the applicant is to be given certain information, and then it creates an exception that says, in subsection (3):
This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member;
Now, I accept that, from the structure of that section, that subsection is in terms of an exception to a general rule, which is that the applicant must be given certain information. If I could read the relevant part of subsection (1) to your Honour, it provides that:
Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review;
And then (b) and (c) contain machinery provisions as to how the Tribunal is to do that.
HIS HONOUR: I do not have the Act before me - I have sent for the Act. Given the large number of these applications that now come before the Court, it looks as though the Migration Act, despite its size, has to be in the compilation of statutes that all of the High Court Justices have at their bedside at all times of the day. As you read it out to me, section 424A appears to lay down certain matters that the Tribunal must provide to the applicant, and then a derogation from that - - -
MR RITTER: That is so.
HIS HONOUR: - - - but that would not seem to be an expulsion of the obligations of the common law, where procedural fairness requires it, to ensure that a person has a fair opportunity of meeting a consideration that is before the Tribunal and is relevant to its determination.
MR RITTER: Well, we would rely on that subsection as indicating an intention of the legislature to say that the failure by the Tribunal to do that does not breach the rules of natural justice. That is the general point that I mentioned, and that could be supplemented by reference to other powers that the Tribunal has.
HIS HONOUR: Has that matter been decided by this Court?
MR RITTER: I am not aware that it has, your Honour, I do not think, and my submission is that Miah does not cover that proposition, although I have not specifically re-read Miah with that proposition in mind.
HIS HONOUR: We do have standing reserved two cases, the application of Ms Lie and of - I forget the name. There were two Indonesian applicants, and Ms Lie is one of them, and they relate to the suggested failure of the Tribunal, I think, to make available to the applicant DFAT cables. So that issue may well be still a live one. In terms of principle, given that this is a tribunal that does not have a contradictor, it would seem at least arguable that in order to exclude the obligation to provide to an applicant matters, or at least the substance of matters, that are important and new for the decision, you would need to have a very clear provision in the Act that would exclude that requirement, it being one that will be otherwise conducive to lead to errors and bad decision-making, because you do not get any comment, evidence, contradiction, response, different point of view from the applicant. You simply get one side, or one side of the equation, and you do not get anything from the point of view of the person who is affected by it. Do you understand the way I am thinking?
MR RITTER: I do understand that, your Honour. In our submission, the proposition can be put this way, that the Tribunal, as you point out, does not have a contradictor. The Tribunal is to conduct an inquiry and the relevant sections of the Migration Act tell the Tribunal how it is to conduct that inquiry. Now, the section that I have referred to, section 424A, provides for the Tribunal having to give to the applicant certain materials. Now, we would say that if one was left to have recourse to the common law on the subject of giving materials to the applicant, there would have been - the intention of the legislature is to make legislative provision for that matter. If the matter was left simply to the common law, then it may have been that the common law would oblige those sorts of materials covered by (1)(a) to be provided to the applicant. But our point is that the legislature specifically deals with that subject matter in section 424A and provides that the Tribunal does not have to provide certain materials such as country information to the applicant.
HIS HONOUR: Now, was the applicant in immigration detention here, I am referring to section 424A(2)?
MR RITTER: My instructions are that he was not.
HIS HONOUR: This is "non-disclosable" information, is it?
MR RITTER: No.
HIS HONOUR: I am referring to subsection (3)(c).
MR RITTER: Yes. No, it was not non-disclosable.
HIS HONOUR: It is not (b) which the applicant gave for the purpose of the application, so it is a question of whether it falls within paragraph (a) and, even if it does, whether that expels the common law obligation of procedural fairness.
MR RITTER: That is so. Could I mention one caveat to the proposition your Honour just put which is this, that, again, not having had the opportunity to consider the factual materials, I cannot say or agree with your Honour necessarily that it did not emanate from the submission or anything else that the applicant said.
What we have in this instance is the Tribunal relying in part upon country information which contained in certain cables from DFAT and other materials. Now, we would say that this is not a situation such as I recall in Miah where there was recent country information as to a change of political circumstances in Bangladesh. This was country information which had been in existence for some period of time. Some, if not all of it - - -
HIS HONOUR: But how would that matter, given your argument about the construction of section 424A? There is nothing in that which exclude recency or novelty or surprise, it talks of categories. So the inference is that in Miah the Court thought that this section, if it was applicable in Miah, did not expel the justice of the common law.
MR RITTER: That is so, your Honour. In the last submission I think I was drifting to the second flank of our argument, the second flank being that if, in a particular case, the rules of natural justice could apply, then this is a case where it did not apply because of the nature of the material. Now, in part, that is an area on which I cannot give full submissions to the Court on today because of the circumstances in which this argument was presented today. But I mention - - -
HIS HONOUR: Yes, but I can protect you by allowing you to make submissions on that in writing subsequently.
MR RITTER: I think that is what I would seek, with respect, your Honour. Could I mention though today in addition section 427(1) of the Migration Act, which gives the Tribunal various powers and in particular perhaps paragraph (d):
the Tribunal may . . .
(d) require the Secretary to arrange for the making of any investigation, or any medical examination -
et cetera. Paragraph (1)(d) and the other sections of section 427 give wide discretionary powers to the Tribunal. In addition to that, I would mention to your Honour section 425 of the Migration Act.
HIS HONOUR: I do not see what the relevance of 427(1)(d) is relating to medical or other investigations. What is the relevance of that to this case?
MR RITTER: The relevance of that is that it allows for the Tribunal to require the Secretary to undertake certain investigations and receive the report of that, but there is no requirement within that section for that report to necessarily be provided to the applicant.
HIS HONOUR: But that does not apply in this case. You just say that it is an example that the Tribunal does not necessarily act on what one would take to be the normal rules of procedural fairness in a court; is that the point you are making?
MR RITTER: That is so; that is the point.
HIS HONOUR: But that is a very specific exception and it cuts both way. The other way to look on it is that where Parliament intended to exempt an obligation of providing material that is relevant to the decision, it makes it fairly clear by express and specific treatment of the matter, whereas it is said that section 424A, at least arguably, may not be of such a broad ambit as to exclude the very important consideration that a person before being affected by material which is unknown to that person should have an opportunity at least to know the substance of it unless for reasons of high policy it is secret or confidential, which is covered by the non-disclosable provision which is not applicable here. If that has not been the subject of a decision by the Court and is not already covered by the matter which stands reserved in Lie, I must say that I would presently be inclined to think that that is an important question.
MR RITTER: Could I add for your Honour's consideration reference to section 425 of the Act in relation to the Tribunal's obligations, in so far an invitation to appear to the applicant, go? Again, the way in which we refer to this section, and in particular subsection (1), is to say that the legislature has very clearly specified what the Tribunal must do.
HIS HONOUR: I think this has a resonance with Mr Tracey's argument in Miah, where he asserted that these provisions in the Act constituted a code of procedural fairness which expelled, in toto, the common law, but that was not accepted by the Court in Miah's Case. It could hardly stand with the outcome in that case which, had that been the conclusion of the Court, would have prevented the provision of relief in that matter.
MR RITTER: Yes. Could I mention this, your Honour, that our argument on this point is, perhaps, a little more specific than Mr Tracey's argument. That is, that the legislature has specifically made reference to the point of the non-provision as an obligation of the sort of material that it is being suggested that had to be provided if procedural fairness was afforded. At section 425, if you like, feeds into that argument by again specifying what the obligations of the Tribunal were. We say that within section 424A which, as I recall Miah's decision, is not a section that was considered by the Court in Miah, but the legislature has intended to cover the field in so far as what the Tribunal is obliged to do by way of the provision of information to an applicant. It has seen fit to specifically accept from that obligation the provision of country information of the type that is relevant to this particular case.
HIS HONOUR: Is there anything in section 425 or 425A that specifically refers to country information?
MR RITTER: No, your Honour.
HIS HONOUR: You say that it simply represents a scheme for the decisions of the Tribunal which is incompatible with the operation of the ordinary common law principle that a person, before being affected by an administrative decision on material that is not known to that person, will be given an opportunity to respond to, comment upon, make submissions about, the substance of the material?
MR RITTER: That is so.
HIS HONOUR: It would need, speaking for myself, a very clear indication that that was the Parliament's purpose because, quite apart from procedural fairness to an applicant, the provision of an opportunity to comment upon, respond to or make submissions about material of an evidentiary kind, tends to promote good decision making. Unless you hear the other side, then you may make a warped, or biased, or unjust decision. You remember the case in England, I cannot remember the name of it, where it was pointed out that even God gave Adam the opportunity to be heard before he was banished from paradise, and this a very fundamental principle of the common law and of basic justice. It needs very clear indications as to why it does not apply in a particular case.
MR RITTER: Yes.
MR RITTER: Yes.
HIS HONOUR: Anyway, I think I understand the argument and I will protect you in relation to your making written submissions to supplement the argument by reference to the evidence that Ms Chang has placed before me.
MR RITTER: Yes, I am obliged, your Honour. I think we commenced that discussion on the basis that your Honour asked me whether I was disadvantaged by the way in which the application was made and my short answer to that, which became a long answer and a discussion was in relation to that particular point. I think that is the only area, though, where we do suffer from that type of disadvantage. The other matter - - -
HIS HONOUR: Come back now to the way in which Ms Chang presented the case. She presented it, really, in two ways. The first was what she called the breach of natural justice points and there were two points there, as you will remember. Do you accept that if a breach of natural justice can be established as reasonably arguable, that that amounts to jurisdictional error which would attract the grant of the constitutional writs?
MR RITTER: Perhaps we would put it this way, your Honour, could, subject to any discretionary consideration, attract the constitutional writs.
HIS HONOUR: Yes.
MR RITTER: The other ground of breach of natural justice was said to be a bias ground and it was said to be based upon a comment of Justice French in his decision that one could have confidently predicted the outcome of the delegate's decision by reference to the transcript.
HIS HONOUR: He thought the delegate was too interventionist and antipathetic to the applicant's claim. I have not read the transcript yet, so I do not know whether that is a fair impression that I would myself reach. What is your submission?
MR RITTER: My submission on that is firstly I would seek the leave of the Court to add that to our written submissions with respect to the substance of what is in the transcript. But secondly on that, we would say that in any event, here there is not grounds for constitutional writ because this is a case in which not only was there the decision of the delegate, but there was a full review de novo by the Refugee Review Tribunal and that decision has been subject to the scrutiny of the Federal Court by way of single judge in Full Court.
HIS HONOUR: This came up in Miah, I recollect, because as I think you pointed out, Miah was a case about the delegate because Mr Miah's solicitors, you will remember, got out of time for prosecuting the application for review to the Tribunal and they then had to scramble to try to get into this Court which, by three Justices to two, they only just managed to do, I think. But in that case, it was argued that the decision by the delegate was overtaken by events and by the fact that had only Mr Miah been in time, he could have gone to the Tribunal and I think that I pointed out that an applicant is entitled to have the decisions made correctly at every stage of the process because often an adverse decision in the first stage is going to warp the process that follows. Now, as I understood Ms Chang's decision, that is what she says on behalf of the applicant, that if you start from a position of a biased decision, then you really decrease the chances of the applicant getting up in the Tribunal because the antipathy will poison the well.
MR RITTER: We would make two answers to that, with respect, your Honour. The first is that the application before this Court is with respect to the decision of the Refugee Review Tribunal and not with respect to the decision of the delegate. We would submit that an allegation of bias as against the delegate does not provide grounds for a constitutional writ to be directed towards the decision of the Refugee Review Tribunal. That is the first point.
The second point is that the discussion in Miah's Case was at a more theoretical level than the issue in this case because, as your Honour has outlined, there was no decision of the Refugee Review Tribunal in Miah because of the time difficulties. In this case, we have a decision of the delegate and we have a decision of the Refugee Review Tribunal that it take place, and we have the subsequent judicial review proceedings to the Full Court, which ended up in the Full Court. So it is a matter which is distinguishable from Miah because - - -
HIS HONOUR: Well, that is true. The Full Court, however, could not have dealt with the natural justice points, nor could the single justice in the Federal Court, could they?
MR RITTER: That is so. The question, in part, for your Honour, is whether this case is different from Miah, because here we are not talking about a theoretical right to a de novo hearing which could not be exercised, but a right to a de novo hearing which was exercised and which was heard by the Refugee Review Tribunal. We would submit that it is not appropriate simply to assume that there was some poisoned chalice in the Tribunal receiving the application and then determining it, given the way in which the delegate may have decided matters. Unless the applicant can point to a particular possibility of bias, or more than that - a reasonably arguable case of bias by the Tribunal itself, as opposed to the delegate - we would submit that that limb of the natural justice grounds relied on by my learned friend is not arguable before the Court.
HIS HONOUR: Well, in fact, Ms Chang did present an argument of breach of natural justice by the Tribunal, and that was related to the use of the DFAT cables. You have already dealt with that in part in responding to my question about prejudice. Is there anything else that you want to say on that question, relevant to discretionary considerations or otherwise?
MR RITTER: No, if I could reserve my position on that, in relation to being able to view the transcript of the hearing before the Tribunal and of the interview by the delegate, and make submissions on those matters in writing subsequent to today.
HIS HONOUR: Yes, very well, I will allow you to do that. Now, that brings us, therefore, to the second basis upon which the applicant puts his case, through Ms Chang. These are the so-called other jurisdictional error assertions. The first of these is that the Tribunal failed to take into account various considerations relevant to the real chance of persecution. What do you say - - -
MR RITTER: Your Honour, one of those grounds that was mentioned was in relation to the applicant's activities in Australia. In relation to that, we would submit that that proposition is not tenable if one has regard to page 13 of the reasons of the Tribunal which is part of exhibit 1 your Honour received into evidence earlier. Your Honour will see at about point 3 a heading in italics, "Activities in Australia".
HIS HONOUR: Yes, I see that.
MR RITTER: The Tribunal there details the evidence which was before it on those issues and it refers particularly, as I recall, to photos of his attendance at various demonstrations. That appears at about points 4 or 5 where the Tribunal refers specifically to that matter in this way:
Although the applicant has provided photos of his attendance at various demonstrations, the Tribunal finds that he has only been involved in the TRW at a minor level.
So we would say that, quite contrary to the submission put by my learned friend, the issue of activities in Australia was specifically considered by the Tribunal up to and including the conclusion on that issue at page 15 of the reasons. There the Tribunal says at about point 3 that it:
accepts that the Burmese authorities monitor the activities of their nationals in Australia. However, the material quoted above indicates the authorities are concerned about people who are involved with political activities over a period of time, not with low level participation.
We would say, your Honour, that the Tribunal specifically did take into account as a consideration the applicant's activities in Australia. We would say therefore that in this application at least, one does not get to the more problematic issue which your Honour referred to as whether that could in any event constitute grounds for the grant of a protection visa. On that issue, for your Honour's assistance - - -
HIS HONOUR: So you say that whatever may be the principle in respect of the use of post-application conduct in Australia, that on the facts found by the Tribunal which were open to it, this is a very low level of involvement, that such a low level of involvement would not on any reasonably arguable view give rise to a real fear of persecution when the applicant is returned to his place of nationality?
MR RITTER: That is so, but we would say whatever is the law on that issue, in this case the Tribunal did take that into account as a consideration.
HIS HONOUR: Are you familiar with the cases that were listed in the Court's sitting in Perth that were abandoned by the Minister?
MR RITTER: Familiar in so far as I can give your Honour this information, that your Honour's recollection as to what happened to those applications is correct. I think there were two applications which were to be heard together by the Court sitting in Perth in October and the Minister decided to withdraw both applications. I understand that the reason for that was that legislative - - -
HIS HONOUR: There has been an amendment to the Act, I think, and that dealt with a matter in the future, but we are here stuck with a case where it is pre-Act and we are looking at the matter in the same terms as were the cases before the Court. Presumably because the cases were withdrawn by the Minister, that rather implies - I do not recollect, although I did sit on one special leave application - that the Federal Court must have found the point of principle in favour of the applicant for refugee protection, otherwise it would not be for the Minister to be withdrawing the applicant for visa protection case before the High Court. Do you know the names of those cases or of the Federal Court decision in those cases?
MR RITTER: Could I just speak to my instructing solicitor? I think he may have them.
HIS HONOUR: Yes, certainly. Thank you, Mr Ritter.
MR RITTER: Your Honour, I cannot assist with references but I can with names. There were two decisions of the Full Court. One was Mohammed and the other was Fraahanipour. We could, as part of our subsequent submissions, your Honour, give you the names and references properly with respect to those.
HIS HONOUR: Yes, if you would that, please. I will just have a look at the principle that the Full Court of the Federal Court has established in those cases. You say it is irrelevant on the facts, because of the finding of the Tribunal and in any case has been considered by the Tribunal, and that on discretionary grounds it is not a matter which would attract the intervention of this Court.
MR RITTER: That is so, yes, your Honour.
HIS HONOUR: That is that aspect of the other jurisdictional claim. What do you say in respect of the - the second complaint was a failure to identify inferences from material facts relevant to the "real chance" test of persecution.
MR RITTER: With respect to my learned friend, I found some difficulty in following that submission. We would answer it in this way though, to say that it was for the Tribunal to determine matters of fact. It was for the Tribunal to determine the credibility of the applicant, and what weight it may have placed on the evidence of the applicant, witnesses and documentary evidence. One question which emerged during my learned friend's submissions, and which your Honour discussed with her, was the question of the torture that may have been applied to the applicant during his period in detention.
We would submit that that matter was dealt with and properly dealt with, we would say with respect, by the Full Court, in that the Tribunal's decision and reasons made it clear that it did not accept that the applicant was detained for the period of six months, after an initial period of detention that the applicant said was no more than 24 days. The Tribunal either - put one of two ways, either the Tribunal did not accept that torture took place at all, or at least it did not accept that the specific torture that was identified as having occurred during the six-month period of detention, did not take place. That must follow, because the Tribunal did not accept that the six months of detention took place. With respect to the 24 days, my learned friend - - -
HIS HONOUR: Can I ask you this. Did the applicant actually assert in his evidence that he had been detained for six months? Because the small portion of the evidence, to which I was taken earlier, rather suggested that he was given a hiding and then sent home. I am referring to page 6 of the transcript in exhibit A. Applicant:
When they interrogated me I give no response to them and they tied and beat me and [I was] unconscious and thinking that I will die when they sent me back home.
Where is the reference to the six months? Or is that - - -
MR RITTER: I cannot assist further on that.
HIS HONOUR: There is a reference earlier on that page to "24 days in the office lock-up", and then they sent him to Insein gaol.
MR RITTER: Yes, that is correct. The finding of the Tribunal on that is at page 9 of its reasons, which give some insight into that, your Honour.
HIS HONOUR: Yes.
MR RITTER: At point 5 on page 9, the Tribunal says that it:
accepts that he was arrested for his involvement but given the low level of his involvement, it does not accept that he was detained for 6 months in Insein gaol as he was not an activist or high level organiser.
I cannot assist further in relation to the transcript of the hearing before the Tribunal to say whether there was some more specific evidence about the period of 24 days or the six months, but we would say that there is no jurisdictional error, or potential of jurisdictional error, on that point, because the Tribunal considered, as a matter of fact, whether the applicant was so detained for the period of six months and decided that he was not. In so far as the Tribunal was obliged to consider the question of torture during that six-month period, it is answered by the fact that it found the six-month period of detention did not take place. That was the matter that was covered by Justice French in the Full Court.
As to what the evidence was before the Tribunal as to torture during the 24-day period or the six-month period, that is a matter on which we will have to make submissions in our subsequent note.
HIS HONOUR: Yes.
MR RITTER: There was, at one point of my learned friend's submissions as well, some reference to the evidence of the sister. Again, I cannot be specific today in taking your Honour to any transcript of the sister's evidence, but in so far as the sister's evidence could be argued to support the contention that the applicant was detained for six months, then it would follow that implicitly the Tribunal has not accepted the sister's evidence because of the rejection of the six-month period of detention that I had referred to. The Tribunal was - - -
HIS HONOUR: Does the sister have residential status in Australia?
MR RITTER: As I understand it, the sister is a resident or a citizen now. There is some summary of her evidence by the Tribunal at page 8 of its reasons.
HIS HONOUR: Yes, very well.
MR RITTER: There was a reference, as well, by my learned friend to the argument that the Tribunal acted beyond jurisdiction in not giving sufficient weight to certain evidence. We would submit, as your Honour, with respect, correctly said in discussion, that the question of what weight was given to certain evidence is a matter for the Tribunal and not a matter on which there can be an argument of jurisdictional error. The same would apply in relation to an assessment of credibility. If authority was needed for that proposition, one could refer to the decision in Cassim, a decision of his Honour Justice McHugh, which is on our list of authorities and referred to in our written submissions.
HIS HONOUR: What is the citation of that decision?
MR RITTER: It is Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50; (2000) 74 ALJR 1404.
HIS HONOUR: Yes, very well, thank you. Have you said everything that you need to cover now, Mr Ritter?
MR RITTER: Just one other point if I could, your Honour, just to mention that the Full Court's decision on the torture issue, if I could refer your Honour in particular to paragraphs 70 and 71 of the joint judgment of Justices Lindgren and Katz, which covers the points that I endeavoured to summarise in my submissions earlier.
HIS HONOUR: Yes, thank you, I will look at those.
MR RITTER: Other than that, your Honour, we would rely on our written submissions and we would seek leave, as discussed, to put in supplementary written submissions.
HIS HONOUR: Yes. Will one week be sufficient for you to supplement what you have said with written submissions?
MR RITTER: Yes, I think that would be appropriate, your Honour.
HIS HONOUR: Yes, very well. I might mention that the name of the case that I was trying to remember which stands reserved in the Court is Muin and Lie, and the argument there related to the use by the Tribunal of DFAT cables relevant to the status of ethnic Chinese in Indonesia. The issue was argued, and your client was the active respondent in the case, and it stands for judgment.
So I will be looking at the argument in that case but, if you want to supplement anything that you have said with material relevant to that point, I must tell you that that is the point which at the moment is of concern to me, that if the Act clearly expels the common law, so be it. But it will take, as far as I am concerned, very clear provisions of the Act to expel such a fundamental principle which is not only protective of the citizen and other persons who come before administrative tribunals but also is conducive to good decision-making and, therefore, would not likely be attributed to the Parliament unless it was very clearly indicated in the terms of the legislation. So you might just have a look at those decisions and add to whatever you have said today on that point with supplementary submissions which should be provided within seven days and, of course, provided to Ms Chang on behalf of the applicant.
MR RITTER: Yes, thank you, your Honour.
HIS HONOUR: Thank you for your assistance, Mr Ritter. Now, Ms Chang what do you say in reply?
MS CHANG: Your Honour, I really cannot take my client's case any further. I think what has been evident here this afternoon, or in your case this evening, has really been the fact that this matter is certainly arguable. There is a great deal of law involved here, some of which, as you say, still stands reserved. I do not mind admitting that I have not really not done justice to the applicant's case and I am extremely grateful to your Honour for having articulated my client's case so much better than I tried earlier. I think there are certainly - - -
HIS HONOUR: I feel I should tell you now, so that you can respond to it, my present thinking. Of course, this is purely provisional. First of all, relating to the natural justice grounds, my present thinking would be that so far as any bias on the part of the delegate, assuming that to be my conclusion after reading the transcript of the proceedings before the delegate, that really the water has passed under the bridge. Your challenge is to the decision of the Tribunal and, therefore, what happened before the delegate is really not relevant to a challenge to the jurisdictional error, as it is put, on the part of the Tribunal. It is a complaint which has been overtaken by events.
So far as the complaint of breach of natural justice in respect of the Tribunal, I have already indicated to Mr Ritter that that is an aspect that does concern me and, therefore, you should attend very closely to the written submissions that he puts in and you will have a period of seven days within which to reply to those submissions, but there must be no extensions of time because it is desirable that the decision in this case, one way or the other, should be completed before the end of the term. That will mean that you both must comply strictly with the timetable.
So far as the other jurisdictional considerations which have been mentioned, I must say that I am not at the moment inclined to think that any of them are such as would attract the grant of the order nisi. Issues of credibility and issues relating to the weight that is given to evidence are, by law, really in the province of the Tribunal, and the fact that they give a different weight, or assess credibility in a way which your client does not agree with, is not a matter which would ordinarily concern the High Court as a jurisdictional error. So far as torture is concerned, it does seem that, assuming there to be some evidentiary foundation for the torture, the Tribunal either did not accept the torture that was asserted, or did not accept that it was such as to give rise to a well-grounded fear of persecution.
So, at the moment, my present thinking is that if there is anything in this case, it relates to the failure to provide to your client the DFAT cables, or the substance of them, and that, in turn, depends on whether the terms of the Act exempt the Tribunal from having to provide that material to a person such as the applicant. So that will be the matter upon which I will need most assistance from both Mr Ritter and you. Of course, what I have just said is purely provisional, and I could change my mind when I receive the supplementary submissions and when I have read more of the material that came in at a very late stage. But that is how I am presently thinking, and I think it is fair to you to bring that to your notice, so that either now, or in your written submissions, you can put anything further that you want to put before the Court on behalf of your client.
MS CHANG: With your leave, then, your Honour, I would prefer to make written submissions on that issue before you.
HIS HONOUR: Very well. The orders that I make are:
1. This matter stands for decision;
2. The second respondent has seven days within which to file and serve written submissions further to those that have already been filed and served;
3. The applicant has a further seven days after the receipt of the written submissions of the second respondent within which to file and serve any written submissions in reply; and
4. I certify for the appearance in court of the legal representatives of the parties.
I will consider the supplementary submissions, and in due course I will publish my reasons and announce my orders in this matter. The Court will now adjourn until 10.15 am tomorrow in Canberra.
AT 6.59 PM THE MATTER WAS ADJOURNED
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