Gnanasambanther & Anor v MIMA S116/2001 [2002] HCATrans 76 (5 March 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S116 of 2001

B e t w e e n -

KANAGARATNAM GNANASAMBANTHER

First Applicant

PATHMAVATHY GNANASAMBANTHER

Second Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GAUDRON J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 MARCH 2002 AT 12.53 PM

Copyright in the High Court of Australia

MR G.R. KENNETT: May it please the Court, I appear for the respondent. (instructed by Blake Dawson Waldron)

MR E.N. RAJADURAI: May it please the Court, my name is Edilbert Rajadurai, and I helped the applicants at first instance, before the learned judge. I also helped them on appeal before the Full Court of the Federal Court. I seek leave to make some oral submissions on behalf of the applicants. The applicants are unable to attend, because they are in their early 80s, your Honours, and I leave it to the Court.

GAUDRON J: Mr Rajadurai, the applicants state in their application for special leave that they did not seek to supplement their summary of arguments with oral arguments as all the relevant issues had been covered in the statement.

MR RAJADURAI: That is correct, your Honour.

GAUDRON J: And now you appear. The difficulty I have is, where is your authority? I mean, if Mr and Mrs Gnanasambanther were here, they could, I daresay, say, "Yes, we want Mr Rajadurai to speak for us." But in the face of what is there said, what can I do?

MR RAJADURAI: That is correct, your Honour, because when I prepared these written submissions and when I handed them over to the Court, sometime in October I had to leave this country and I thought that when the hearing takes place - - -

GAUDRON J: No, but it is not signed by you. It is signed by K. Gnanasambanther.

MR RAJADURAI: Yes, that is correct.

GAUDRON J: It is what he said. I assume that is Mr Gnanasambanther.

MR RAJADURAI: Yes, yes.

GAUDRON J: It is what he says.

HAYNE J: We seem to have a difficulty, do we not?

MR RAJADURAI: Yes, your Honour.

HAYNE J: One which is not capable of ready solution, save, I think, by us working, and working only, from the written submissions.

MR RAJADURAI: On appeal too, your Honours, I helped the applicants, so I would humbly seek leave of this Court to make - - -

GAUDRON J: Yes. Well, I rather gathered that you did, but in a similar position, if counsel appeared, somebody might say, "Where is your authority to appear?" I mean, I suppose it does not - yes, Mr Rajadurai, I think the proper course is if you would simply tell us what you would wish to say, bearing in mind, of course, that the purpose of people appearing in these - is simply to supplement the written material.

HAYNE J: If we were to give you leave, what would you tell us?

MR RAJADURAI: Initially, I would refer this Court to page 12 of the application book, lines 25 and 35, and the paragraph between those lines:

We are afraid to return to Colombo because we will face persecution by the Sri Lankan Armed Forces. We moved to Colombo in March 1996 and we remained living there until 15th June 1998.

GAUDRON J: Yes, thank you.

MR RAJADURAI: And the last three lines of that paragraph:

They asked us many questions about the LTTE and we were under suspicion for helping the LTTE as we were from the area of Veemankamam, which was known as being an LTTE area.

By making these statements, your Honours, the applicant made a case for himself on the basis that he came from a particular place which was considered to be an LTTE stronghold. This particular claim of possible persecution was not addressed by the Tribunal. The Tribunal decision does not make any reference to this particular claim. It does not say, "Yes, the applicants will face persecution." Nor does it say, "The applicants will not face any persecution." With that being the case, your Honours, there should be a distinction between making a case and a duty to inquire.

If there is evidence of a possible head of persecution, then it was incumbent on the Tribunal to make further queries on this particular claim, and the Tribunal should have, to some extent, referred to this particular claim. From the statements the applicants made to their advisers and subsequently to the Tribunal, the applicants give some description of Veemankamam as to why it was significant. The applicants said that it was close to the harbour and was subsequently announced by the LTTE to be a no-go zone.

There are two views on the question of duty to inquire. The court sometimes is reluctant to enforce a duty to inquire on the Tribunal, and there are, in fact, cases in which the court found the Tribunal erring because it did not elicit further information on a particular claim. The views of the courts, or the court, are found in A3, in the document marked A3, in the list of authorities, and that is taken from the textbook "Immigration and Refugee Law in Australia". I refer the Court to page 3 of that document. The pages are numbered on top right-hand corner. I beg your Honours' pardon, page 4, "The extent of the duty to inquire". Halfway through that first paragraph:

The traditional view was that the rules of procedural fairness do not require a decision-maker to either assist applicants in the presenting of their case, or embark on independent inquiries into matters not raised directly by the applicant -

This is not such a case, your Honours, because the applicant explicitly raised a head of possible persecution. If I may refer the Court to page 6 of that same document, second paragraph from the top:

The common thread running through both these older cases and the more recent examples is the requirement that there be some factor to enliven the duty to inquire. In the refugee cases, the Federal Court has held consistently that there is no general duty in the RRT to make further inquiries. There must be some obscurity raised by the evidence before the Tribunal that goes to an issue that is critical to the determination of the refugee claim.

That is the - - -

HAYNE J: Now, these are matters, are they not, that are dealt with at pages 59 to 61 of the application book? Why should we give you leave to supplement what is said there?

MR RAJADURAI: I would submit that the question in relation to the duty to inquire is unsettled. In some cases, the court has found the Tribunal erring in law, and in some other cases, the court has not. But there are two aspects that the applicants have to satisfy in order for a court to remit a case, that is, the evidence was obscured in one way or another and, secondly, the Tribunal was misdirected. I would submit that the applicants satisfy both of these requirements. Firstly, the evidence was obscured, because the applicant said that in the past there were police visits to the house where they were living in Colombo, because they came from an area which was an LTTE stronghold.

Now, the Tribunal rejected that particular claim. The Tribunal said that there were no past police visits. But the underlying claim remains as it is, so it was incumbent on the Tribunal to see whether there would be any future police visits based on their previous residence in Veemankamam. That is the essence of ground 1, your Honours. So the question of duty to inquire seems to be unsettled, so if special leave is granted, that question will be resolved one way or another, provided that there was some evidence of a possible head of persecution. That is what I wish to say in relation to ground 1.

GAUDRON J: Well, now, that does seem to repeat - it seems to do no more than repeat what is in the written submissions.

MR RAJADURAI: It was not explicitly raised, your Honour, in the written submissions. I thought I might elaborate with the relevant authorities, because the relevant authorities were not included, I think, in the written submissions.

GAUDRON J: We have not yet, as such, given you leave to appear, but anyway - the other grounds of appeal. What would you say if you were given leave to appear in respect of those?

MR RAJADURAI: The second ground - before that, your Honours, I should mention that this case was decided before this Court gave its judgment on Yusuf, which ultimately resolved the issue of relevancy/irrelevancy in migration cases. That particular limitation applies only to one ground in section 476(1), but the Court can still identify a relevant issue in relation to subsection (1)(e). In the adviser's submission, the adviser pointed out that the applicants seek refugee status on actual and imputed political opinion.

As far as actual political opinion is concerned, there are only two requirements that have to be satisfied, that is, the applicants should have a political opinion which is defiant of the Sri Lankan Government, and that political opinion should be publicly manifested. These two elements are relevant for the purposes of this appeal, and the husband applicant explicitly said that he supported the LTTE and that should be interpreted as supporting the LTTE's ideology, which was at that time - not now - at that time, defiant of the Sri Lankan Government.

Secondly, the element that has to be satisfied is there be some public manifestation. The applicants claim that they lived in an LTTE compound, and I sincerely submit that that is sufficient to constitute that part of the test. As far as the imputed political opinion is concerned, the applicant did some work for the LTTE and there is no need of a public manifestation when it comes to imputed political opinion. But what the Tribunal said was the applicants' involvement was minor, and it did not go any further. The complaint to the Full Court was that it was incumbent on the Tribunal to see whether minor connections with the LTTE would lead to persecution for the purposes of the Convention.

I also cited a case, Perampalam, on appeal, and in that case, an elderly Tamil lady was persecuted by Sri Lankan authorities for a one-off act - just for stitching some sarongs. So I argue that although the Tribunal came to that conclusion, that is, the applicants' involvement was minor, it did not further proceed to see whether that minor connection would lead to any future persecution. So I now submit that it was an error of law on the part of the Tribunal and those were the two grounds that were agitated before the Full Court, your Honours. I also thank this Court for giving me some opportunity to make these oral submissions.

GAUDRON J: Well, thank you, Mr Rajadurai. Given that what you have said, in substance, repeats the written submissions, we think it is neither necessary nor appropriate to give you leave, but we have heard what you have had to say. Mr Kennett, we need not trouble you.

MR KENNETT: Thank you, your Honour.

GAUDRON J: In this matter, the applicants seek special leave to appeal from a decision of the Full Federal Court so that their applications for protection visas can be considered afresh by the Refugee Review Tribunal.

Given the nature of the claims made in their applications for protection visas and later in proceedings before the Refugee Review Tribunal, and given also the nature of judicial review proceedings and the grounds upon which a decision of the Refugee Review Tribunal may be reviewed, the proposed appeal enjoys no prospect of success. Accordingly, special leave must be refused.

Although the applicants seek in their written submissions to avoid an order for costs, no sufficient reason is revealed for departure from the usual practice. Accordingly, special leave is refused with costs.

The Court will now adjourn until 10.15 am tomorrow in Canberra.

AT 1.12 PM THE MATTER WAS CONCLUDED