Applicant S10/2002 v MIMA S10/2002 [2002] HCATrans 368 (9 August 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S10 of 2002

B e t w e e n -

APPLICANT S10/2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 AUGUST 2002, AT 12.28 PM

Copyright in the High Court of Australia

MS S KAUR-BAINS: If the Court pleases, I appear for the respondent (instructed by Blake Dawson Waldron).

KIRBY J: You are the applicant in these proceedings?

MR E. RAJADURAI: No, your Honour. I am a law student and I seek leave from this Court to make oral submissions on behalf of the applicant S10.

KIRBY J: Is this something that the applicant asks you to do on his behalf?

MR RAJADURAI: Yes, your Honour.

KIRBY J: Yes. Is there any objection to that course, Ms Kaur-Bains?

MS KAUR-BAINS: Your Honour, my instructions are that it is a matter for the Court.

KIRBY J: Yes, we will give you that leave to make the submissions which the applicant would make. The applicant may sit down at the Bar table next to you. Is there an interpreter present?

MR RAJADURAI: Yes, your Honour.

KIRBY J: Is it necessary for an interpreter to be sworn for the purpose of interpreting what the Court says to you so that it can be translated to the applicant?

MR RAJADURAI: Yes, your Honour.

KIRBY J: Very well.

SONIA ABEL, sworn as interpreter:

KIRBY J: The applicant can sit down and the interpreter can sit beside him and you can interpret what is said, both by the representative for the applicant and also the representative for the Minister. Yes.

MR RAJADURAI: First of all, I thank this Court, your Honour, for granting me leave to make oral submissions. I also thank counsel for the respondent for not objecting. The applicant in this case is a Sri Lankan Tamil and he resided in Sri Lanka until he was 22 years old. Later he left Sri Lanka and lived in a number of other countries for more than 21 years. On page 4 of the application book, your Honour - - -

KIRBY J: Is this a case in which there is a statutory declaration which was sent in?

MR RAJADURAI: Yes, your Honour.

KIRBY J: Is that something that was before the courts below because otherwise except in so far as it relates to matters of the importance of the case we would not receive fresh evidence?

MR RAJADURAI: No.

KIRBY J: It is dated 28 February 1996, so I assume that this was before the courts below. Is that correct?

MR RAJADURAI: Yes, your Honour, that is correct. That was part of the court book at first instance and on appeal.

KIRBY J: Yes, all right. Is there any objection to the Court receiving the statutory declaration of the applicant which is dated 28 February 1996?

MS KAUR-BAINS: Your Honour, I have not seen a copy of that statutory declaration. I need to obtain instructions on that.

KIRBY J: Is this essential to the applicant's case, the statutory declaration?

MR RAJADURAI: No, your Honour.

KIRBY J: Well, maybe it is best for you not to rely on it because that might lead to delays in dealing with the application.

MR RAJADURAI: I understand, your Honour.

KIRBY J: Yes, very well. Can I take it that you withdraw the tender of the statutory declaration?

MR RAJADURAI: I do withdraw the statutory declaration of - - -

KIRBY J: All right. Well, you proceed with your submissions.

MR RAJADURAI: On page 4 of the application book, the first paragraph on the top, your Honour. In that paragraph the Refugee Review Tribunal correctly identifies two Convention reasons upon which the applicant sought refuge in this country. The first reason is imputed political opinion and the second reason is his race as a Tamil.

The applicant made a number of statements in relation to his brothers and police mistreatment, arrest and so on. All those statements were rejected as implausible by the Tribunal. The relevant portion of the Tribunal decision is found on page 13, second-last paragraph, paragraph 54:

I reject the applicant's claims in their entirety.

All the preceding pages of the Tribunal decision, starting from paragraph 36 up to 54, deal with the applicant's claims on the basis of imputed political opinion, and this is the only conclusive statement made by the Tribunal in relation to his claim based on race, and that was the basis of judicial review at first instance as well as on appeal.

On appeal, the Full Court of the Federal Court gave an interpretation for that particular statement which I referred to on page 13. The Full Court said that only Tamil people can be imputed with a political opinion of LTTE and therefore - - -

KIRBY J: Well, the Full Court said that where the Tribunal referred to your client not having - or the applicant not having a well-founded fear of persecution for a Convention reason, it was referring in a shorthand sort of way to a well-founded fear of persecution for the reasons of his race. So that was a conclusion. The point you are raising for the applicant, or that the applicant is raising, is a very, very narrow one, that by referring to "for a Convention reason", the Full Court did not sufficiently indicate that it directed attention, and the Tribunal did not sufficiently indicate that it directed attention to persecution for the reasons of race. In the context, why would one not read it in that way, given that that was what your client was propounding, or what the applicant was propounding?

MR RAJADURAI: Starting from page 8 of the application book up to page 13 of the application book - - -

KIRBY J: Page 8 or 13 are you referring us to?

MR RAJADURAI: From 8 to 13, your Honour.

KIRBY J: Yes.

MR RAJADURAI: The Tribunal dealt with the applicant's claims in detail. It referred to each and every aspect of the applicant's claim in relation to his brothers and arrest and so on. The complaint now is that in the same way the Tribunal dealt with the applicant's claims in relation to imputed political opinion, the Tribunal ought to have dealt with the claim of his race, too. I am saying this, your Honour, because there have been instances in Sri Lanka, one in 1977 - - -

KIRBY J: Well, you cannot tell us facts that are not in the record, I am afraid. The Court has said that on these applications it is a strict appeal, so we are dealing only with what is in the documents before us. You cannot add to the record.

MR RAJADURAI: It is also possible that a person, particularly a Tamil in Sri Lanka, can be persecuted for his sole reason of race.

KIRBY J: But that would be within "persecuted for a Convention reason" which is what the Tribunal referred to and what the Federal Court said encompassed the type of discriminations that your client was raising, the persecution, including - or on the ground of his race.

MR RAJADURAI: That is derived only from the conclusive statement, just that one sentence of - - -

KIRBY J: That is not unusual. I mean, this is an administrative tribunal and it deals with thousands of cases and it refers to Convention reason possibly because of the fact that there are a number of Convention reasons and that this is in a template which is used for the purpose of dealing with a whole range of cases. It is to be read as the Convention reason propounded by the particular applicant. At least that is how the Federal Court read it. I do not see why that was not open to the Federal Court.

MR RAJADURAI: The complaint is that if that was the case, then there have been other cases decided by the Federal Court in which the Federal Court particularly endorsed a group of persons who were Tamils who were persecuted in Sri Lanka. So what I am - - -

KIRBY J: Well, that would be so, but it is a matter to be decided in the facts of each particular case. There were elements in your client's case, including his return to Sri Lanka in order to move from there ultimately to Australia, that tended to be inconsistent with his assertion that he, the applicant, had a well-founded fear, and the Tribunal had the advantage of seeing the applicant and was satisfied that he had never experienced persecution for Convention reasons in Sri Lanka.

MR RAJADURAI: Yes, your Honour. The applicant left Sri Lanka after 1995 when war broke out in the 1990s, and it was a time that all young Tamil males from north and east of Sri Lanka were persecuted. The applicant also tendered a case.....in which the Full Court of the Federal Court endorsed the denomination of Tamils who were persecuted.

I am submitting, your Honour, that the right approach for the Tribunal would have been to identify who this Tamil was, whether he was from the north and east and then identify what type of Tamils were persecuted and what type of Tamils were not persecuted, and then to conclude whether there will be a well-founded fear of persecution.

KIRBY J: That approach, it seems to me, would run head long into repeated instruction from this Court that the Federal Court and, in respect of our own work, we ourselves should not subject the reasons of the Tribunal to a pernickety examination. It is an administrative tribunal dealing with a mass jurisdiction of thousands of people and this Court has said that it is not the proper approach of judicial review to take a word out of context, "Convention", and to subject that to a minute microscopic examination. You have to read it in the context.

MR RAJADURAI: Yes, your Honour. Finally, I would like to submit that if the Tribunal dealt with his personal claims that would have led to an imputed political opinion, the Tribunal should have also dealt with his claim of race by at least referring to it, to some extent, so that the applicant can get a clear picture as to why he will not be persecuted on the basis of his race.

KIRBY J: Yes, but the issue of persecution was interconnected. Politics and race in Sri Lanka at the time, at least, were indissoluble. They were all part of the one aspect.

MR RAJADURAI: But there were, your Honour, some instances in which Tamils, irrespective of their political opinion, were nevertheless persecuted. So quarantining race and then analysing on the basis of race was also something that the Tribunal should have paid attention to.

KIRBY J: Yes. Is that all that you wish to say for the applicant?

MR RAJADURAI: Yes, your Honour.

KIRBY J: I will just ask the interpreter if there was anything else that the applicant wanted you to say on his behalf to the Court that you have not already said. You might just speak to the representative and tell him of anything else that the applicant wanted him to say.

MR RAJADURAI: The applicant wishes to say that in the year 1995 one of his brothers went missing and - - -

KIRBY J: I think that is referred to in the book.

MR RAJADURAI: Yes.

KIRBY J: I believe I have read that, so that we are aware of that.

MR RAJADURAI: And he says that he put advertisement in the newspaper as a result of which he was - - -

KIRBY J: Yes, I remember reading that in the application book.

MR RAJADURAI: "That is one of the reasons upon which I will always fear returning to Sri Lanka."

KIRBY J: Yes, well, I think the Court understands that. Thank you very much.

MR RAJADURAI: Thank you, your Honour.

KIRBY J: Thank you for your assistance to the Court. The Court does not need your assistance, Ms Kaur-Bains.

Neither of the two questions which the applicant raises warrants the grant of special leave. The first turns on a challenge to the reference to the ground of persecution examined by the Refugee Review Tribunal. In the context, it is clear, as the Federal Court found, that the reference to a "Convention reason" included a reference to the Convention reason that the applicant was propounding, namely, race. The second, relating to a suggested failure of the Tribunal to record a material matter, was not one which the applicant raised in the Federal Court. He should not be allowed to do so now and, in any case, there appears to be no substance in that ground. Special leave to appeal should therefore be refused.

Does the Minister ask for costs?

MS KAUR-BAINS: Yes, your Honour.

KIRBY J: Is there any reason why costs should not be ordered as usual?

MR RAJADURAI: No, your Honour.

KIRBY J: The application is dismissed with costs.

AT 12.47 PM THE MATTER WAS CONCLUDED