Perchine & Anor, Ex parte - Re MIMA & Ors S228/2001 [2001] HCATrans 666 (18 December 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S228 of 2001

In the matter of -

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

First Respondent

GILES SHORT sitting as the Refugee Review Tribunal

Second Respondent

JOHN GODFREY sitting in his capacity as acting Principal Member of the Refugee ReviewTribunal

Third Respondent

Ex parte -

ANDREI PERCHINE and EKATERINA PERCHINA

Applicants/Prosecutors

McHUGH

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 18 DECEMBER 2001, AT 10.15 AM

Copyright in the High Court of Australia

__________________

MR C.D. JACKSON: Your Honour, I appear for the applicant. (instructed by Roach & Halligan)

MR M.A. WIGNEY: May it please the Court, I appear for the first respondent. (instructed by Clayton Utz)

HIS HONOUR: I have a certificate from the Deputy Registrar that he has been informed by the solicitor for the second and third respondents that they do not wish to be represented at the chambers hearing and will submit to the order of the Court save as to costs. Yes, Mr Jackson.

MR JACKSON: Yes. Does your Honour have a copy of the submissions that were faxed - - -

HIS HONOUR: Yes, I have read all the documents.

MR JACKSON: Yes. Well, I do not think there is any dispute as to the appropriate test to be applied, but the gist of my submissions is that it is one thing, and a very necessary thing, to raise matters of concern to the Tribunal and to point out difficulties and to express doubts and it is one thing to get cross with an applicant, as occurred in AB's Case, but that it is quite another thing - and obviously it is inappropriate but, in my submission, it is more than inappropriate to make controlled sarcastic remarks along the lines of, "And then again maybe your story isn't true". So at the heart of the applicants' case really is that - - -

HIS HONOUR: Your case, I think, has to stand or fall on this issue: on the basis that a distinction has to be drawn between the investigatory stage and the decision-making stage and that when a tribunal of this sort appears to make findings of fact during the investigatory stage it gives rise to a reasonable apprehension of bias when it comes to the decision-making stage. I think that has to be your case, has it not?

MR JACKSON: That is my case, that it is one thing, and quite appropriate, to tentatively express doubts and to test the evidence and to say, "Well, I have this problem and I have that problem", but it is quite another thing to make a remark of the kind that the Tribunal did. All that the applicant has to establish is that it is possible that - - -

HIS HONOUR: Yes. On an order nisi you have to show that there is a reasonably arguably case that a court could find that it is possible that there was an apprehension of bias here by an ordinary member of the public.

MR JACKSON: Yes.

HIS HONOUR: Now, your order nisi has no particulars in it. It just simply asserts a denial of natural justice and that would need amendment to specify what is the particular breach of natural justice that you require.

MR JACKSON: Yes.

HIS HONOUR: But reading the reasons of the Tribunal and the transcript of evidence, have you given consideration to whether or not you should raise another aspect of natural justice, namely, a Mahon v Air New Zealand point? Are you familiar with Mahon v Air New Zealand [1984] AC 808?

MR JACKSON: The only thing I am familiar with, your Honour, is the expression "an orchestrated litany of lies" in the original - - -

HIS HONOUR: The Tribunal made four findings of fact in this case. It is one thing to reject an applicant, but the Tribunal made four positive findings and they appear between pages 16 and 18 of the transcript. I will see if I can pick them up. At 16 point 6 of the reasons, I think it is - when I said the transcript, I meant the reasons. The second sentence in the second-last paragraph on that page:

I consider that the new claims which the Applicant raised at the hearing before me are embellishments to his original evidence. I consider that the course which the Applicant has followed . . . indicates an attempt on his part to alter his claims in an attempt to bring himself within the terms of the definition of a refugee in the Refugees Convention.

And 17 1:

I consider that the Applicant has fabricated his account of the advice he was given by the policeman -

and so on, and at 18 point 2 there is a reiteration of one of the earlier claims about six lines in:

As I have indicated above, I consider that the Applicant made these claims in a deliberate attempt to bring himself within the definition of a refugee in the Refugees Convention -

Now, in Lord Diplock's advice to Her Majesty in Mahon v New Zealand [1984] AC at 821 he said that the second rule of natural justice that was relevant to that appeal:

requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value -

Now, with the possible exception of the police claim, there does not seem to me anything in the transcript which would indicate that your client was given any notice that he was going to be found guilty of fabricating evidence, a deliberate attempt to bring himself within the definition of "refugee". It may be, given the extreme nature of the findings in this case, that Mahon's Case might extend so far as to require some notice that your client could have almost every statement of fact rejected by the Tribunal. In 40 years of practice I cannot ever recollect such a devastating rejection of anybody's evidence, applicant, plaintiff or anybody else, and arguably he should have been given some notice.

Similarly, it may be that this is a case where the Tribunal ought to have made some inquiries, particularly given the fact that he named the journalist and named the newspaper. That evidence was rejected out of hand, or his statements were rejected out of hand without any inquiries. There are some cases in the Federal Court which say that natural justice in some circumstances will require a tribunal to make inquiries.

The other thing you might give some consideration to is whether or not the Tribunal acted without or in excess of jurisdiction in that it made findings that no reasonable tribunal should have made. I have in mind in particular the statement that given that Finland is a signatory to the Refugees Convention the Tribunal did not accept the evidence about what the policeman said and arguably that is a non sequitur and it is a large jump from suggesting that because Finland is a signatory to the Convention, you cannot accept what a particular policeman might say about political or other asylum.

MR JACKSON: Yes.

HIS HONOUR: Now, this applicant has been in person in the Full Court in the Federal Court and there are enough matters that I find disturbing about this case that ought to be, I think, investigated a little more thoroughly. Now, it may be that in the end he has a weak case on persecution itself because it may be that in the end, even if you accept everything he says, that it is a question of whether or not you can sheet this home to the governmental authorities. After all, there seems to be no suggestion that whatever has happened to him is a product of government policy. It may well be that his case will have to stand or fall on whether or not the government has acted to protect a person in this particular - now, subject to hearing what Mr Wigney says about this matter, I thought that it is a matter that ought to be looked at in a little bit more detail than it has hitherto been looked - or appears to have been considered and, subject to hearing Mr Wigney, I was proposing to give you an opportunity to consider some of these matters.

MR JACKSON: Yes. Your Honour raises points that were of concern to the Full Federal Court. At the time that I first looked at this application those reasons were not published but I accept what your Honour is saying and they are certainly matters that would require careful thought and argument from the point of view of the applicant.

HIS HONOUR: Yes. I think some consideration also needs to be given to some of the relief sought, for instance, as to why a writ of prohibition should not be issued out of the Court directed to the first respondent, who is the Minister, is he not?

MR WIGNEY: Yes, your Honour.

HIS HONOUR: I do not see how prohibition can go to the Minister. I have spoken about this in cases at other times and it is rather difficult to see how any form of injunction could go to the principal member of the Tribunal. There is no suggestion that he has breached his duty or is threatening to breach any duty that is owed to him. So these are matters that might be given some consideration to.

MR JACKSON: Yes, your Honour.

HIS HONOUR: Well, Mr Wigney, you have heard what I have said. This is a rather disturbing case in some ways I find.

MR WIGNEY: Yes, as did her Honour Justice Mathews and at least Justice Madgwick in the Full Court.

HIS HONOUR: The case may fail ultimately, but there are matters that I find rather disturbing.

MR WIGNEY: Yes. Well, we obviously would have to accept, your Honour, that they were far-ranging findings of fact based really on a credibility assessment based on some inconsistencies in accounts given at various times.

HIS HONOUR: Yes.

MR WIGNEY: We, of course, would nonetheless say in due course that they were open to the Tribunal to make and the like, but I must say I have come here to try and defend the case on the basis of an apprehended bias application. That is what I perceived to be the case, as your Honour would have gathered from our written submissions.

HIS HONOUR: Yes.

MR WIGNEY: I must say if your Honour is minded to give the applicants further time, I do not think there is anything I could say in opposition to that course and it would be a better course than for me to respond in a cursory way to the matters that your Honour has raised with that - - -

HIS HONOUR: Yes, or for Mr Jackson to be attempting to deal with the sorts of matters I have raised. On examination he may not think there is much in the points, but anyway they were points that occurred to me reading the material yesterday and last night.

MR WIGNEY: Yes. Being familiar, to a certain extent, with the decision, I would be able to provide some response to the matters your Honour has raised but there is little point in doing so if your Honour thinks the matter should be given more attention. We obviously will not suffer any prejudice as a result of any delay so - - -

HIS HONOUR: No. Now, the question of convenience. I am duty Judge this week and I will be here in the first two weeks in January. What is counsels' convenience?

MR WIGNEY: I would have to say that January is not a convenient time for me, though for personal reasons rather than professional reasons, as your Honour would imagine.

HIS HONOUR: Yes, I understand that. Well, there is no great urgency about this matter. After all, it was almost two years, was it not, between the filing of the application and the ultimate decision of the Tribunal?

MR WIGNEY: Yes.

HIS HONOUR: How long do you think it would take you to give consideration to these matters, Mr Jackson? I assume - do not answer this if you do not want to - you are acting pro bono in some way in this.

MR JACKSON: Well, I am not acting pro bono but for a reduced - - -

HIS HONOUR: Yes, that is all right. But how long would you need to consider these matters? Have you any time this week or next week, Mr Wigney?

MR WIGNEY: Fairly limited time, I must say, but I do have some time. I could not say I have no time.

HIS HONOUR: Yes. What about your commitments, Mr Jackson?

MR JACKSON: They are not heavy leading up to Christmas from this point and then I am then away for the first two weeks of January.

HIS HONOUR: Right. Do you think you could have something done within 48 hours, perhaps by Thursday?

MR JACKSON: I would appreciate a little longer than that. The issues that - - -

HIS HONOUR: Yes. Well, I do not want the matter to just wander off. Well, Mr Wigney, in some respects I am concerned to protect your interests, or your client's interests, but given the time of year and my own commitments, what about 11 February, which is a Monday? Do you have any problems about - you see the High Court will be sitting from early in February in Canberra.

MR WIGNEY: Yes. I do not have my diary with me. I think off the top of my head that the 11th is okay.

HIS HONOUR: Yes. Well, perhaps we might adjourn this to 11 February. If there is any problem about it, then an application can be made, but I expect the matter to be ready to proceed on 11 February. Is there anything further that is required?

MR JACKSON: No, your Honour, although perhaps leave to file an amended order nisi.

HIS HONOUR: Yes, I give you leave to file an amended - but I think I ought to put some time limits on you because Mr Wigney is entitled to have some notice of this. Mr Wigney, if amendments were filed by Friday, 1 February, would that be sufficient from your - - -

MR WIGNEY: Yes, I think so.

HIS HONOUR: Yes, right. What I propose to do is I order:

1. That this application be adjourned until Monday, 11 February 2002 at 10.00 am;

2. That the applicant have leave to amend the order nisi and, if necessary, to file any further affidavits in support of the amendment, any such amendment or affidavit to be filed by 4.00 pm on Friday, 1 February 2002.

Nothing further?

MR JACKSON: No, your Honour.

MR WIGNEY: No, your Honour.

HIS HONOUR: Adjourn the Court.

AT 10.36 AM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 11 FEBRUARY 2002