Pirapakaran v MIMA S16/2001 [2001] HCATrans 598 (20 November 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S16 of 2001

B e t w e e n -

INTHUMATHY PIRAPAKARAN

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 20 NOVEMBER 2001, AT 10.35 AM

Copyright in the High Court of Australia

MR B.M. ZIPSER: I appear for the applicant. (instructed by Jamnadas & Associates)

MR N.J. WILLIAMS, SC: I appear with MS N. OBRART for the respondent. (instructed by the Australian Government Solicitor)

GUMMOW J: What is put against you appears, perhaps, most strongly on pages 78 and 79 of the application book. That is to say, to make out your points you would be agitating matters that were not agitated below and, in particular, were not agitated before the Tribunal.

MR ZIPSER: Our response to that is that at the time this matter was before a single judge of the Federal Court in the Full Court, the High Court's decision in the Minister v Yusuf had not been handed down and the High Court's decision, in effect, changed the way in which issues of reviewable errors of law can arise. The arguments that are being put on this application to the High Court are similar.

GUMMOW J: Why could you not have put these arguments before Yusuf? Why would they have been out of Court before Yusuf was decided? Why do they only get in Court because of Yusuf?

MR ZIPSER: Prior to Yusuf - - -

GUMMOW J: This is a jurisdictional point, is it not?

MR ZIPSER: Prior to Yusuf it was unclear whether - - -

GUMMOW J: Well, yes.

MR ZIPSER: I cannot go further and say that it was contrary to the law.

GUMMOW J: No, that is right.

KIRBY J: Was Yusuf decided after the matter was before the Full Court?

MR ZIPSER: Yes. Yusuf was decided in May, I believe, 2001, and the matter was before the Full Court in November or December 2000.

GUMMOW J: Yusuf was handed down on 31 May 2001. It was argued on 15 and 16 November which is before the decision of the Full Court. I am not sure when the Full Court matter was argued. Mr Williams has some information.

MR WILLIAMS: 16 November, your Honour.

GUMMOW J: 16 November, yes.

MR ZIPSER: My submission is that following - - -

KIRBY J: This is the case where the suggestion is that your client could have relocated to Colombo and you are seeking to raise a suggestion that there is a failure to take into account the possibility that the rebels might seize control of Colombo. It seems a bit thin, is it not? If you have lost Colombo you have lost the island.

GUMMOW J: I think so.

MR ZIPSER: The submission is also that in considering the question of relocation to a place within a country, it is not sufficient for the decision-maker to merely consider the immediate present, the decision-maker should also consider the foreseeable future.

GUMMOW J: Foreseeable future?

MR ZIPSER: Yes.

KIRBY J: It is a bit hard to say it is a foreseeable future that Colombo will fall. Colombo is the very centre of the island and of the Sinhala majority.

MR ZIPSER: It was also put in previous argument that there is also a possibility that should have been considered, that even if Colombo does not fall the LTTE could gain a stronger presence in Colombo, such that a risk of extortion or forced recruitment of Tamil families would arise for Tamils in Colombo.

GUMMOW J: Who was going to raise this point, and who was going to use material to show what was likely to happen?

MR ZIPSER: It is a matter that the Tribunal should have considered.

GUMMOW J: What, off its own bat, without being asked to?

MR ZIPSER: Yes, your Honour.

GUMMOW J: It makes life impossible, really.

MR ZIPSER: On the basis that it volunteered to make a finding on relocation. As part of the finding on relocation it should have considered matters into the foreseeable future. It was free to make a decision on the evidence before it, however, the error that was asserted below and it is asserted on this application, is that it failed to make a decision on that matter in that way. Either it ignored relevant material or it misunderstood and misapplied the relocation test, which would give rise to an error under section 476(1)(e), as it was then.

The applicant, on this application for special leave, had two sets of submissions. One set of submissions concerned two arguments to raise on the special leave application. One set of arguments involved the finding on relocation, the other set of arguments involved the Tribunal's findings in response to a claim by the applicant wife that when she returned to Sri Lanka in mid-1995, the LTTE demanded money from her and threatened to forcibly recruit her daughter.

GUMMOW J: Yes.

MR ZIPSER: The claim that is made in this Court in respect of the Tribunal's dealing with that matter is that it fell into jurisdictional error in one of two ways. In relation to the first way, the matter can be most conveniently dealt with by looking at the Tribunal's reasons as extracted by Justice Nicholson in the Full Federal Court at page 54 of the application book.

GUMMOW J: That is Justice R.D. Nicholson? Page?

MR ZIPSER: Yes, your Honour, at page 54. The Tribunal had accepted the applicant wife's claim that the LTTE had demanded money from her, or otherwise threatened to forcibly recruit her daughter, and the Tribunal then dealt with a matter in the passage that runs from the top of page 55. Relevantly, the manner in which the Tribunal dealt with the matter was to consider whether the applicant wife had been approached because she was Tamil or, alternatively, because she was wealthy.

The Tribunal quoted an extract from a report that appears at the middle of page 54, which states that:

". . . the British Refugee Council states that Tamils returning from abroad are at particular risk of extortion -

and then it continues a little further, and the Tribunal then concluded from that passage, towards the bottom of page 54:

that the Applicants were targeted for financial demands because, living and working overseas, they were perceived to be wealthy -

The applicant's claim in this Court is that the Tribunal selected a particular passage from a document and gave it an interpretation that if one considered the passage in its context, then - - -

GUMMOW J: Other people might construe it differently, but where, then, is the error?

MR ZIPSER: The submission is that the proper construction of - - -

GUMMOW J: What proper construction? The only construction?

MR ZIPSER: The proper construction that should have been formed - - -

GUMMOW J: That elevates what comes from these documents in to some legal matter. It is as if you are construing a document and ruling on matters of law, construing a statute.

MR ZIPSER: Documents can be interpreted, and they have interpretations, and the submission is that the - - -

GUMMOW J: Administrators will look at many documents and there will be various views open as to what might be taken from the document, and one may disagree or agree with it if one had been doing it oneself, but that does not make reviewable error.

MR ZIPSER: However, if a Tribunal - - -

GUMMOW J: Different, of course, if it is in the Wednesbury area, where it is quite unreasonable what has happened, but I do not think that is what is being put.

MR ZIPSER: However, if a decision-maker was to interpret part of a document and if a court, on review, was satisfied first that other parts of the document were relevant to the interpretation of the first part, and second, that the decision-maker had ignored the other parts of the document in deciding how the first part should be interpreted, then it is submitted that that can give rise to a jurisdictional error through ignoring relevant material in making a decision.

KIRBY J: In the Full Court Justice Tamberlin took a slightly different view but he did not dissent from the order, did he? He reached the same view as the other members of the court?

MR ZIPSER: That is not correct.

GUMMOW J: Why not?

MR ZIPSER: On this particular issue, Justice Tamberlin - - -

KIRBY J: Just help me to understand the difference between the judges in the Federal Court.

MR ZIPSER: I am about to do that. One point to note is that the judges of the Federal Court, at this time, were using the language of section 430(1)(c) and (1)(d).

GUMMOW J: That is right.

KIRBY J: They were following Singh.

GUMMOW J: Yes.

MR ZIPSER: Yes, and the argument I am putting is a little different to the argument that was being put in the Full Court.

GUMMOW J: Yes, we understand that.

MR ZIPSER: The difference of opinion between Justice Tamberlin who was in the minority, and Justices R.D. Nicholson and - - -

GUMMOW J: He joined in the order, did he not?

MR ZIPSER: He joined in the order - - -

GUMMOW J: How can you say he is in the minority?

MR ZIPSER: The reason is, and as I - - -

GUMMOW J: It may be a minority on some grounds but not on others, that is what you are being asked about.

MR ZIPSER: Yes, your Honour. In the Full Court the appellant had to succeed on two issues in order to succeed on the appeal. The second issue, which your Honours have heard, is the issue of relocation and the first issue was the issue of whether one of the applicants had a well-founded fear of persecution, for Convention reason, based in their home town of Jaffna.

GUMMOW J: Yes.

MR ZIPSER: The appellant lost because all three judges agreed that there was no error on the relocation issue, however, on the question of whether the Tribunal had failed to make a material finding of fact, to use the language that was the appropriate language to use then, Justice Tamberlin favoured the appellant's argument.

GUMMOW J: Why did he not find in your favour?

MR ZIPSER: Because he agreed that there was no error in relation to the relocation finding.

GUMMOW J: So this was not a freestanding ground?

MR ZIPSER: That is correct.

KIRBY J: Was it supplementary to the arguments put on the relocation issue?

MR ZIPSER: No, it was not. The two grounds are entirely separate.

KIRBY J: His Honour must have been of the view that although there was an error on that matter, it was not one which affected the outcome of the case?

MR ZIPSER: That is correct. Again, on this application, the High Court, or your Honours, would probably need to be satisfied that there were arguable - - -

GUMMOW J: We would have to be happy about the relocation issue, I think, to be realistic Mr Zipser.

MR ZIPSER: Yes, yes, your Honour. Does your Honour want to hear more on the jurisdictional issue?

GUMMOW J: You take you own course.

MR ZIPSER: In which case I will continue to say a few more points. I was stating earlier that the applicant's complaint on this application is that - and if your Honours turn to page 54 of the application book, line 35, there is an extract from a report which the Tribunal relied on in making a finding adverse to the applicant. At page 55, at line 40, Justice R.D Nicholson sets out the context in which that extract appears.

GUMMOW J: If we had lights, the orange light would be on now.

MR ZIPSER: Yes, your Honour, in which case I will mention briefly that I have mentioned one form of jurisdictional error arising from the Tribunal ignoring this passage, and a second ground in which jurisdictional error is asserted is that the applicant wife's claim was that the demand that was made to her was that, "If you do not provide us with money we will forcibly recruit your child".

At page 24 of the Tribunal's decision, at line 33, the Tribunal accepted, or noted its awareness, that the LTTE recruited from Tamil youths. On the basis of that evidence, it is submitted a claim - or it was open to the Tribunal to find that the extortion demand made to the applicant wife was made because she was Tamil. That could be extortion or persecution for Convention reason but the Tribunal did not consider that claim and it is submitted that that also gives rise to jurisdictional error.

GUMMOW J: We do not need to call on you, Mr Williams.

The applicant suggests that special leave should be granted on the basis that the primary judge and the Full Court of the Federal Court of Australia did not have the advantage of the later decision of this Court in Minister for Immigration v Yusuf [2001] HCA 30; (2000) 180 ALR 1. Assuming that it was appropriate for the applicant to reserve the matters that counsel now wishes to argue, we are not convinced that any error has been shown in the Full Court of the Federal Court on what has been called the relocation issue. It is conceded that the applicant must succeed on that issue to secure special leave.

In our view, there are no reasonable prospects of success on the relocation issue. Accordingly, special leave is refused with costs.

AT 10.55 AM THE MATTER WAS CONCLUDED