Applicant S154/2002, Ex parte - Re RRT & Anor S154/2002 [2002] HCATrans 286 (11 June 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S154 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

PHILIP RUDDOCK, in his capacity as MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte -

APPLICANT S154/2002

Applicant

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 11 JUNE 2002, AT 11.55 AM

Copyright in the High Court of Australia

MR J.M. PATEL: May it please your Honour, I appear for the applicant. (instructed by the applicant)

MR S.B. LLOYD: I appear for the Minister, your Honour. (instructed by the Australian Government Solicitor)

HER HONOUR: Yes, thank you. Mr Patel.

MR PATEL: Your Honour, I am sorry, but I got my instructions rather late in this matter because only on Thursday I was delivered some paper and I was given to understand that the prosecutor would be present in Court to assist me and, on that basis, I accepted instructions that I would appear for her and assist her in any way I can. I did not have opportunity to really digest the written submissions filed by the Minister in these proceedings and my preliminary impression is that the prosecutor has a primary difficulty with the preliminary point of law taken by the Minister that these matters were before the Federal Court. That is paragraphs 13 and 14 of the written submissions - - -

HER HONOUR: Just wait a moment. Do you want to go on without your client here?

MR PATEL: No, the reason I thought I would just outline my position in this matter, because as I see it, she has a lot of problems overcoming those legal points and if we can get past that threshold preliminary point of law, then there would be substantial matters to argue. What I propose, your Honour, is that if it is convenient perhaps this matter could go over to 8 July or something that would give me opportunity to peruse the relevant decision and background material.

HER HONOUR: Do you understand what is your client's ground of challenge, what it is that she is challenging and the ground of it? She is challenging the Tribunal's decision.

MR PATEL: That is right. She is challenging the Tribunal's decisions on a number of grounds. Some of these grounds apparently were taken when this matter went to the Federal Court for review under the Migration Act. I have a copy of the judgment that was - - -

HER HONOUR: You see, the only grounds of review that would be available here would be 75(v) grounds.

MR PATEL: Yes.

HER HONOUR: Yes.

MR PATEL: I think there is some overlap under 75 and what is perhaps some of the - - -

HER HONOUR: But what do you say is the 75(v) ground? How would you formulate it?

MR PATEL: I think the Tribunal did not consider the aspects of - that she was married to a Muslim and at the hearing they were still married but before the hearing proceeded he left and he went to Pakistan and these aspects were not considered in the decision, how it would impact on her. It could impact in two ways, in our submission. One is the question of subjective and objective fear because initially one of the things which influenced the Tribunal was that she had gone to Sri Lanka, she had made a number of visits and, on that basis, it concluded that she did not have genuine fear to return to Sri Lanka.

Now, that was in the context of the fact that her husband was - at that time he was a de facto, but he was there, plus he had some family support. So the element of fear had to be looked at in that context which changed at the time when the Tribunal was considering its decision. By that time - - -

HER HONOUR: It is really a failure to consider amounting to a constructive failure to exercise jurisdiction, but is that any different from what was considered in the Federal Court?

MR PATEL: Yes, because it was not put in the way we propose to argue before your Honour, that what was proposed at that stage was that this consideration was not taken and it constituted a separate ground of persecution, that because she had married a Muslim and the argument taken was a narrow one and whether or not she - - -

HER HONOUR: All right, I think we can stop you there. If you wanted to argue that, you need to make your draft order nisi somewhat clearer, I think, and perhaps give particulars.

MR PATEL: That is true, your Honour.

HER HONOUR: What do you say? We might as well let this one go until 8 July too, do you think?

MR LLOYD: Well, your Honour, I guess I do not consent. Maybe - - -

HER HONOUR: I know. I would not expect you to. I would not expect you to but - - -

MR LLOYD: For the assistance of your Honour and perhaps for my friend if it goes to an adjournment, perhaps I should read an affidavit so he can see the mountain he has to face. It is an affidavit from my instructing solicitor which just attaches the original application as filed, the application as amended and the reasons of his Honour Justice Wilcox. In my submission, the point that my friend seeks to raise is precisely the point which was raised before the Federal Court and there was a res judicata on that point and if he wanted to raise other points going to jurisdiction, given the history of the matter, there would be an Anshun estoppel and that the cases I have referred to in my written submissions indicate that this kind of thing would be a res judicata if it is the exact same cause of action and that an Anshun estoppel would apply if it is a matter that could have been argued at the time.

Now, that would include virtually everything, with the exception of natural justice or unreasonableness, but that is not how it is put. So it seems it is a very high burden, but it is a matter for your Honour whether you want to adjourn it or - - -

HER HONOUR: Yes. Well, it does look as though that point was taken in the Federal Court, does it not?

MR PATEL: Yes, your Honour. That is why - that was the reason I did not ask for an adjournment straightaway because I do appreciate that we have a high mountain to climb, whether or not it would be wise for me to sort of waste this Court's time in arguing points that are unarguable. My only concern was that if it can get past these questions of estoppel, which I am not quite certain, I admit, if the prosecutor can take up matters that were not taken up before the Federal Court, then she has some - I would submit that she has good grounds.

HER HONOUR: Well, they would really have to be matters that could not have been advanced in the Federal Court by reason of the limited grounds of review, would they not?

MR PATEL: That seems to be the case because the way I read the judgment, it appears that the counsel seems to have made it clear that he wishes to rely one ground. Now, whether that creates an estoppel to raise any matter in subsequent proceedings is a moot point. At this stage I am inclined to - - -

HER HONOUR: Well, it is an interesting point in relation to 75(v).

MR PATEL: Because natural justice and that - so that it would seem to overlap because what we are saying is that if the application of law was incorrect and if it was a material aspect that how her change in relationship was going to impact on her return to Sri Lanka whether or not - what the Tribunal's decision was based on, the circumstances existing at the time when she was visiting Sri Lanka, what the Tribunal had not taken into consideration was how these changes in circumstances - - -

HER HONOUR: But that was exactly, it seems from this affidavit - well, I think, Mr Patel, you are going to have to go very carefully through the Federal Court proceedings, are you not?

MR PATEL: Unfortunately the judgment itself does not assist much because it is only effectively a one-page judgment where the claim was dismissed on the basis that the Tribunal - I think my understanding is that his Honour took the view that this matter was not raised before the Tribunal, this second basis of the claim, but apart from that, as Mr Ben, the counsel for the applicant, in that case had not sought to argue what we are proposing to argue, so that matter was never raised. Perhaps for reasons best known to him, he was happy to put all his eggs in one basket and say that this was the second ground of persecution which was not conceded.

What we are trying to raise is a ground that could - I am not quite sure whether it could have been raised or not because in a way it could have been raised but it would not have the broader ambit as it would have before this Court because there it could have said that, "Look, this was an error of law - a wrong application of the law to the facts."

HER HONOUR: Well, you have to go beyond that in some way in this Court and you have to show that it could not - I think in the circumstances you have to show that it could not have been raised in the Federal Court. That is to say really that the grounds of review that were then available to your client did not permit that ground to be raised, do you not?

MR PATEL: Yes. The only way I can put it is that it is labelling - when it comes before this Court it would come under the label of natural justice, that - - -

HER HONOUR: Yes, and you could not take that, you say, in the Federal Court?

MR PATEL: It could be taken in a different form, in a limited form, under a statutory provision where the scope of the argument probably would not be as wide as under the natural justice that can be argued before the Court. But I am not saying that it would completely preclude them from pursuing the same argument in a different format before that court. The only thing is that this Court would - it probably could be pursued in a bit more broader basis than it could be pursued in the Federal Court, but I would not - - -

HER HONOUR: But you could not proceed - well, perhaps I will clear this up with Mr Lloyd. You could not take procedural fairness in the Federal Court at the time

MR LLOYD: That is so, your Honour. That is my recollection anyway.

HER HONOUR: Yes. Are you saying now that you want to make a case on procedural fairness?

MR PATEL: Yes, natural justice; the procedural fairness that - - -

HER HONOUR: Yes. Well, you are going to have to amend the grounds of appeal and you are going to have to have affidavit evidence as to what happened before the Tribunal that you say constitutes a denial of procedural fairness.

MR PATEL: Yes. Your Honour, I would like to make it clear at this stage that these are my preliminary thoughts but upon proper consideration, I could advise the client if I find that it is not advisable, then I might advise, "Look, this is a thing we cannot argue any further."

HER HONOUR: Very well. What I shall do is that I shall adjourn the matter until 8 July but I should tell you that if there is to be any amendment of the grounds of the application, then that amendment and all documentary evidence relevant to it should be filed in the Registry within 14 days of today's date. Should there be such material filed, and you wish to put on any material in reply, it should be filed within seven further days. Is that acceptable, Mr Lloyd?

MR LLOYD: Yes, your Honour.

HER HONOUR: I think that having been said, the appropriate course really is to adjourn it until 8 July, and to certify for the attendance of counsel.

MR LLOYD: May it please the Court.

MR PATEL: If it please the Court.

HER HONOUR: Yes, thank you.

AT 12.11 PM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 8 JULY 2002