WADT of 2003; Ex parte - Re RRT & Anor [2003] HCATrans 420 (23 October 2003)

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WADT of 2003; Ex parte - Re RRT & Anor [2003] HCATrans 420 (23 October 2003)

Last Updated: 31 October 2003

[2003] HCATrans 420

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P51 of 2003

In the matter of -

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

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

Ex parte –

WADT of 2003

Applicant/Prosecutor

HEYDON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 23 OCTOBER 2003, AT 9.02 AM

Copyright in the High Court of Australia

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

MR P.R. MACLIVER: If it please your Honour, I appear for the respondents in this matter. (instructed by Australian Government Solicitor)

HIS HONOUR: The title for the draft order nisi, is it correct to have the name of the Minister? The actual name is wrong now but - - -

MR CAMERON: I was proposing to ask for an order that henceforth in respect of these proceedings that he be known as WADT.

HIS HONOUR: Your client, yes.

MR CAMERON: Yes.

HIS HONOUR: I was going to raise that, but since you raised it we might as well deal with that now. Is that satisfactory, Mr Macliver?

MR MACLIVER: It is, your Honour.

HIS HONOUR: WADT is the correct - - -

MR CAMERON: Of 2003.

HIS HONOUR: Right. I make that order.

MR CAMERON: Thank you.

HIS HONOUR: What about the name of the second respondent though? Is it not normal just for the second respondent to be known as the Minister for Immigration et cetera rather than the actual person who holds the office?

MR CAMERON: My understanding was with constitutional writs it is usual to name the holder of the office, but I may be incorrect on that and I am quite happy if it is simply the Minister. There has been a change in Minister - - -

HIS HONOUR: Yes, quite. Mr Macliver, do you know what the correct position is?

MR MACLIVER: Your Honour, I think the practice has varied, but generally it would appear that in relation to constitutional writs the Minister is simply described as the Minister.

HIS HONOUR: Well, the heavens are not going to fall.

MR MACLIVER: No.

HIS HONOUR: I think until further order the second respondent will be the Minister for Immigration and Multicultural and Indigenous Affairs. Now, the affidavits that are relied on - - -

MR CAMERON: There is perhaps an explanation with the affidavits. I was in some difficulty because the applicant is in fact in Baxter and I do not have an instructing solicitor and was dealing with people in South Australia who are unqualified. In fact, an affidavit was filed on 26 August, which was not in the correct form, and subsequently an affidavit in support of the application was signed on 6 September, which is in the correct form, and I would be relying on that affidavit. There should also be a further affidavit of the applicant in support, also dated 6 September, and that annexes the decision of the Tribunal which was not correctly annexed in the original affidavit.

HIS HONOUR: So just going back to the beginning then. You rely on an affidavit which is six pages in length, although they are not numbered, dated 6 September and filed on 26 September of the applicant?

MR CAMERON: Yes, your Honour.

HIS HONOUR: And then you rely on a further affidavit of the applicant, the operative pages of which are two in number, which has an annexure consisting of the Refugee Review Tribunal’s reasons?

MR CAMERON: Yes, that is correct.

HIS HONOUR: You rely on that. Very well.

MR CAMERON: And there is also an affidavit in support by Mr Kevin de Souza.

HIS HONOUR: Yes.

MR CAMERON: That explains why it was necessary for him to file an affidavit.

HIS HONOUR: And that was - - -

MR CAMERON: That was on 29 August.

HIS HONOUR: Yes, that is dated 29 August and was filed on that day.

MR CAMERON: Yes.

HIS HONOUR: Now, Mr Macliver, do you object to any of the evidence that Mr Cameron has just identified?

MR MACLIVER: No, we do not.

HIS HONOUR: Those affidavits are in evidence and the material annexed and exhibited is in evidence also. Ground 1 of the draft order nisi does not really raise jurisdictional error, does it, Mr Cameron? This is paragraph (h)(i), which is at the bottom of the third page of the draft order nisi.

MR CAMERON: Yes, I would have to concede that.

HIS HONOUR: I think I might call on Mr Macliver now, thank you, Mr Cameron. Mr Macliver, your position is essentially that the orders nisi should not be granted because all the matters raised are either raised in the special leave application and draft notice of appeal or the submissions in support of the special leave application, or could have been.

MR MACLIVER: Could have been, with the one exception, your Honour, of the - - -

HIS HONOUR: Natural justice.

MR MACLIVER: - - - natural justice ground, yes.

HIS HONOUR: And to perhaps put your complaint around another way, the special leave application was adjourned so that natural justice grounds could be raised which were not available to be taken in the Federal Court, but we find rather more than natural justice being raised.

MR MACLIVER: Yes, a kitchen sink-type application, if I might - - -

HIS HONOUR: Do you oppose the orders nisi being granted on the basis of (iv) and (v), which are the two interlinked natural justice grounds? I think the answer to my question is you do oppose it for the reason you gave in oral argument and you have given again in written submissions.

MR MACLIVER: Yes, and in written submissions, your Honour. Even putting the applicant/prosecutor’s case at its highest, if such notice had have been given to him at the time and if he had then taken the opportunity to put in a response to having received that notice and if, as a result of that response, the Tribunal had reached a different conclusion, had reached a conclusion that the applicant was a homosexual, that would not have affected the decision because the Tribunal went on in any event to consider the applicant’s position and his claim to have a well-founded fear of persecution on the basis that he was a homosexual.

So this, we would say, is one of those clear cases where the alleged breach of procedural fairness could not have affected the result and, therefore, it was not a breach in those circumstances or, if it was, it was not a breach that amounts to jurisdictional error.

HIS HONOUR: Yes. Can I just raise this. What you say would be correct if the claim were limited solely to persecution on the ground of homosexuality, but the claim now made – and it may not be one made before the Refugee Review Tribunal in terms – is a sort of rolled up homosexuality plus positive HIV status. It will take a bit of piecing together of different parts of the Tribunal’s reasoning fully to put as a knockout point the argument you were just putting. It might at the end of the day be a correct argument, but I am not sure of the rather generous or low height of the hurdle which Mr Cameron has to jump over. It is a conclusive point at this stage.

MR MACLIVER: Your Honour, I note that, yes, my learned friend does raise these additional bases of HIV positive status and alludes to the possibility of some additional subgroup. Of course that is true. That was not dealt with or, indeed, was not raised before the Tribunal. But nevertheless on this particular natural justice point, which is a very narrow one, it is simply the point being that the Tribunal did not give any advice or warning to the applicant that it proposed to make a finding that he was not homosexual despite his HIV positive status.

We would nevertheless submit that in relation to that very narrow natural justice point that that could not have changed the Tribunal’s result because the Tribunal then went on to consider the applicant’s claim based upon an assumption, contrary to its finding, that he was a homosexual. So we say in that respect, your Honour, that alleged breach of procedural fairness could not have changed the result of the Tribunal’s decision.

HIS HONOUR: Yes. I just see a difficulty there. The right hand and the left hand sort of wash each other. Everything is tied up. In order to sort of evaluate the legality of what happened in front of the Tribunal you have to consider every possibility. The Act prevented the Federal Court from looking at the totality of possibilities. I think if some of the other arguments that are, perhaps properly speaking, only in support of the special leave application, but some of those other arguments taken with this breach of natural justice as it happened might not – it might not inevitably be the case that the result would have been the same. That is my difficulty.

MR MACLIVER: Yes. I do not think I can take the point any further, your Honour.

HIS HONOUR: Just one other thing. If the orders were made, you submit it should be remitted to the Federal Court. I think Justice Gummow’s thinking on the special leave application, or the thinking that he expounded, was that in view of the fact that the special leave application had not been rejected but had not prevailed, it was best that this Court consider both the special leave application and the orders nisi together. To send it back to the Federal Court would rather cut against that. There is the additional problem that sending it to the Federal Court, one could scarcely send the substance of the special leave application back to the Federal Court because no error has been shown yet in what the Federal Court did.

MR MACLIVER: No. That is true, your Honour. Your Honour, we are suggesting this option of remittal because that was an option that was followed by this Court in another matter, the matter of....., to which we made reference in our outline of submissions – I think P76 and P77/2002, your Honour – where there was both a special leave application and then, prior to the hearing of the special leave application, an application brought in this Court’s original jurisdiction – again, because there was perceived to be an issue of natural justice, which, of course, could not be brought in the Federal Court under the old Part 8 of the Migration Act.

The two matters, the order nisi and the special leave, were listed together, and the Court – I think it was his Honour Justice Hayne and his Honour Justice McHugh - followed the procedure which we have suggested in this case, namely, to remit the - - -

HIS HONOUR: The natural justice matter.

MR MACLIVER: - - - natural justice issue in the order nisi to Federal Court and to simply stand over the special leave application.

HIS HONOUR: I suppose every one of these procedural decisions depends on its own circumstances. It just seems to me that this one – it is probably going to be cheaper and quicker and more efficient in the long run if it goes to the Full Court of this Court, rather than to the Federal Court. Do you have any submission about that, Mr Cameron?

MR CAMERON: My submission in respect of that, your Honour, would simply be that it would be appropriate that it go to the Full Court, in the same way as occurred in Dranichnikov with the special leave application. The history of the matter is set out in paragraph 36 of Justice Kirby’s decision in Dranichnikov, where his Honour says:

Having failed in a challenge to the Tribunal’s decision in the Federal Court of Australia, the applicant applied to this Court for special leave to appeal. That application was referred to the Court as now constituted to be heard as on the return of an appeal. Concurrently with those proceedings, and in case the complaints fell outside the relief available under the Act as it then stood, an application was brought in the original jurisdiction of this Court for relief by way of mandamus and prohibition and for certiorari to make such relief complete.

It would be my submission that it is appropriate, in the circumstances of this case, that that course be followed here as well.

HIS HONOUR: Very well. Thank you, Mr Cameron.

MR CAMERON: So far as the natural justice point is concerned, does your Honour wish to hear me on that?

HIS HONOUR: Perhaps I should hear you - - -

MR CAMERON: I can make it brief. So far as the natural justice point is concerned, in my submission, one must have regard to the fact that the Tribunal found that the applicant was homosexual and accepted his account of the incident which led to his departure from Iran. Now, in my submission, where the Tribunal proposed to affirm the decision on the basis which was entirely different, as a matter of procedural fairness, it would be incumbent upon the Tribunal to warn the applicant that she may find that he was not homosexual. That is particularly in the case where the Tribunal referred to him for comment, punishments under Shariah law and information available from third parties as to the attitude toward homosexuals in Iran. That would lead, in my submission, an applicant to believe that the fact of his homosexuality was being accepted by the Tribunal.

In those circumstances, where the Tribunal proposed to depart from that and find that he was not in fact homosexual, then in fact it was incumbent upon the Tribunal to warn the applicant of that fact, and he could respond in an appropriate manner. One of the appropriate manners which would be available would be to call his brother as a witness, not as to the incident but as to the applicant’s homosexuality and the fact that he had been a practising homosexual over a period of years.

So that, in my submission, is a natural justice point so far as the fact of homosexuality is concerned. Getting to that point, the Tribunal would then have to take into consideration whether in fact, as a homosexual who was also HIV, he may not in fact receive treatment for his HIV/AIDS status on the basis of his homosexuality - - -

HIS HONOUR: And you say that is persecution or - - -

MR CAMERON: I would say that that is certainly persecution and the denial of medical treatment would certainly be persecution.

HIS HONOUR: Yes.

MR CAMERON: So the two do go together. He has to be seen, firstly, as homosexual and, secondly, as an HIV positive homosexual. In that respect he resembles the applicant in Dranichnikov where, of course, the Tribunal decided that as an entrepreneur he would not be subject to persecution, whereas Mr Dranichnikov’s case was that he was an entrepreneur who had complained to the police about corruption.

HIS HONOUR: Very well, thank you, Mr Cameron. Just one thing. I am proposing to make the orders, but not with ground (i). Apart from that, have you got any criticism of the form of the order nisi, Mr Macliver?

MR MACLIVER: It is perhaps in a slightly unusual form, your Honour.

HIS HONOUR: Yes. It struck me that paragraphs (a) to (g) were unusual, but on the other hand (h)(ii) to (vii), whether or not they have validity do seem - - -

MR MACLIVER: Yes, (h)(ii) to (vii) raise issues.

HIS HONOUR: They raise questions, yes.

MR MACLIVER: Yes, questions. But, yes, as you say, the previous paragraphs seem to partly go into submissions, if you like. Your Honour, the only other comment perhaps I could make is that while some of the material that was before the Tribunal has been put before this Court in the annexures to the affidavits of the applicant, that is not the full material. I think the full material that was before the Tribunal should be before this Court. So that would necessitate perhaps the second respondent filing an affidavit to annex the balance of the material that is before the Court. Perhaps, if it was considered relevant after listening to the tape of the hearing, it might be relevant to annex a transcript of part of the hearing.

HIS HONOUR: What, there exists a tape and a transcript, or only a tape at the moment?

MR MACLIVER: Only a tape at the moment, your Honour.

HIS HONOUR: Yes, all right. The Deputy Registrar has certified that he holds a letter from the solicitor for the first respondent stating that the first respondent will abide by the decision of the Court save as to costs.

The applicant arrived in Australia on 30 October 2000. On 21 March 2001 a delegate of the second respondent refused a protection visa. On 22 August 2001 the Refugee Review Tribunal affirmed that decision. On 20 December 2001 Justice French in the Federal Court of Australia dismissed an application for judicial review. On 8 May 2002 the Full Federal Court dismissed an appeal from Justice French. On 29 May 2002 the applicant applied for special leave to appeal to this Court. On 8 August 2003 that application was heard and stood over so that the applicant could apply for relief under section 75(v) of the Constitution in relation to an alleged breach of the rules of natural justice, that being a ground of review not available in the Federal Court by reason of section 476(2)(a) of the Migration Act 1958 as it stood at the relevant time.

On 29 August 2003 the applicant applied for orders nisi under section 75(v). The applicant identified seven alleged jurisdictional errors in support of the orders nisi. Only two of those, namely those numbered (iv) and (v), relate to the matter on the basis of which the special leave application was stood over, namely a breach of the rules of natural justice.

In my opinion alleged error 1 does not justify the grant of an order nisi. The applicant argued:

9. It appears to have rejected his claim to sexual orientation substantially, if not entirely, on inconsistencies between the account given by the applicant and his brother as to the names of their sexual partners involved in the incident, and as to the colour of the underwear worn by each. It said: “These contradictions go to matters which lie at the very heart and substance of their claims for refugee status, and are therefore highly material. I place weight on the inconsistency of the brothers naming the actual partner with whom they had sexual intercourse. In my view if such an event had occurred the identity of such a person would not be mistaken especially as both brothers had such vivid recollection of so many other details. Their incorrect responses to the colour of the underwear and the identity of the sexual partner satisfies me that these brothers fabricated their story in order to enhance their claims for refugee status. [decision at p. 15] {emphasis added} The evidence in relation to the inconsistency is set out in the Application Book at page 13, ll 24-28.

10. The Tribunal fell into jurisdictional error when it identified names and underwear as lying “at the very heart and substance of their claims for refugee status.” The real issue for the Tribunal was whether the Applicant was homosexual as claimed, and whether he would suffer persecution as a consequence of that, either standing alone or coupled with his uncontested HIV positive status.

There is no jurisdictional error at “the very heart and substance” of the applicant’s claim for refugee status. It was a claim that he was a practising homosexual and that a key reason for believing that there would be a risk of persecution on that ground was the incident referred to in the submissions set out above. If that incident never happened, the applicant’s claim would be radically weakened. An analysis by the Tribunal of the circumstantial detail of the incident was within jurisdiction. Different minds might have reached other conclusions, but if there was an error in the circumstantial evidence it was not a jurisdictional error. The attempt to characterise it as jurisdictional depends on a play on words, and in oral argument this morning counsel for the applicant disavowed reliance on error 1.

It is convenient to turn to the other grounds. Ground (ii) is identical with ground (b) in the draft notice of appeal dated 7 August 2003, relied on in the special leave application. Ground (iii) is arguably one which was not raised before the Tribunal. Grounds (iv) and (v) are identical with ground (a) in the draft notice of appeal dated 7 August. Grounds (vi) and (vii) were raised in paragraph 12 of the applicant’s summary of argument, dated 7 August 2003, relied on in the special leave application.

The second respondent submits that no order nisi should be made on the ground that all the alleged jurisdictional errors were either the subject of the special leave application or could have been raised in it, apart from the natural justice grounds. While in a sense that is so, the alleged jurisdictional errors reviewable in the Federal Court are clearly closely interconnected with those reviewable in an application for section 75(v) relief.

So far as the natural justice grounds are concerned, the second respondent contends that even if there were a breach of natural justice, it would not have affected the outcome because the Tribunal was prepared to assume, to the contrary of its earlier conclusion, that the applicant was a homosexual and to consider whether persecution ought flow. That might, at the end of the day, be a complete answer, but it is not so clearly correct as to disentitle the applicant to the relief presently sought. That is because it is not entirely clear whether the Tribunal addressed the position the applicant would be in as a homosexual who had HIV positive status and who might therefore be persecuted, in particular, on the ground of not receiving proper medical treatment.

Ideas of that kind underlie ground (iii). Many minds might think that the complaint underlying ground (iii) places too heavy a burden on the Tribunal unless it can be established that the applicant himself had raised the point, but again minds differ on the precise scope of the duties of the Tribunal in this type of context.

Given that the applicant has on foot an unresolved special leave application, given that it is possible that some of the applicant’s complaints may receive support from the decision of this Court in proceedings which are presently reserved, given the difficulty of drawing a line between matters reviewable in the Federal Court and those reviewable under section 75(v), at least in the sense that the underlying factual matrix is inseverable, in my opinion it is appropriate to grant the orders nisi on ground (ii) to (vii) inclusive.

The second respondent submits that the hearing of the relief claimed in relation to natural justice should be remitted to the Federal Court, that is a practice which has been adopted in one case, to which the second respondent referred, but the contrary course has been adopted in another to which the applicant referred. In view of the fact that the Justices who heard the special leave application contemplated that if an application for an order nisi was filed and if the orders were granted the matter should be referred to the Full Court together with the unresolved special leave application, it is appropriate that that course be followed.

Counsel for the second respondent did point out that in certain respects the form of the order nisi was unusual, but did not raise any criticism of paragraph (h)(ii) to (vii), which set out the grounds. If the parties are of the opinion that the grounds on closer examination contain flaws which make them unsatisfactory for the consideration of the Full Court, they are at liberty to endeavour to reach agreement on more satisfactory grounds or to restore the matter before a single Justice. Counsel for the second applicant also contended that all the materials which were before the Refugee Review Tribunal should be available to this Court, and that not all of them had yet been proved by affidavit.

How long do you think is an appropriate time for an affidavit completing the record? Is it better that you do this, Mr Cameron, or the second respondent? Frankly, Mr Macliver, obviously Mr Cameron does have difficulties with his client. It might be simpler if - - -

MR MACLIVER: Yes, I think it would be easier and simpler if the second respondent undertook to do that, your Honour.

HIS HONOUR: Yes. Are you in close contact with Mr Cameron, or able to stay in contact with him? It might be simpler, for example, if you worked out what you thought the total file, as it were, should be and checked it with him and, if he was happy, then have a formal affidavit. Does that sound - - -

MR CAMERON: I am quite happy with the course, yes.

HIS HONOUR: Mr Macliver is not an ogre. He is perfectly reasonable, is he?

MR CAMERON: We were on excellent terms.

HIS HONOUR: Would 28 days, or whatever period - - -

MR MACLIVER: Twenty eight days would be sufficient, your Honour, yes.

HIS HONOUR: I will just propose some draft orders for comment by counsel. One will be I make an order nisi in the form of the draft order nisi with the formal changes made in orders announced at the start of this hearing, together with a deletion of paragraph (h)(i). The second order will be I direct the second respondent to file within 28 days after consultation with counsel for the applicant an affidavit proving any materials before the Refugee Review Tribunal which are not presently annexed or exhibited to affidavits.

Are those two orders satisfactory?

MR MACLIVER: Yes, your Honour.

HIS HONOUR: I will make those orders. You raised this question of the tape. I do not think the Court itself would be particularly interested in a kind of detective voyage of discovery. If either side considers something said by the Tribunal which ought to be considered by the Court, obviously where natural justice is an issue, it might well be in the second respondent’s interest to point to something which does not presently appear and, similarly, the applicant might find something of value. But can we leave it on the basis that if anything that appears on the tape is thought to be relevant by either side that part will be transcribed? Is that reasonable?

MR MACLIVER: Yes, I think so, your Honour.

HIS HONOUR: I do not think it is necessary for me to make an order. Is that satisfactory to you?

MR CAMERON: In my experience, your Honour, it is what is not said rather than what is actually said. Maybe if there is to be a transcript, it should be a transcript of the whole hearing.

HIS HONOUR: The trouble is – how many hours did the whole hearing take?

MR CAMERON: I do not know, but we could certainly get a transcript and agree on those passages which are relevant, but in my experience on natural justice points it is very often what is not said rather than what is said which - - -

HIS HONOUR: I am just reluctant to expose the second respondent to the not inconsiderable expense of preparing a complete transcript just to prove a negative, particularly if the negative - - -

MR CAMERON: I am quite happy to listen to the tapes and then liaise with the second respondent.

HIS HONOUR: I mean, one solution is, if you wish to argue that nothing was said about something, there could be an agreed fact to that effect.

MR CAMERON: Yes. We can work it out.

HIS HONOUR: I think I will leave that in the hands of counsel. I suppose I should reserve the costs and certify for counsel?

MR MACLIVER: Yes, if it please, your Honour.

MR CAMERON: Yes, your Honour.

HIS HONOUR: The next order, which I think is the third, will be that I reserve costs, and order 4 will be that I certify for counsel. If there is nothing further, the Court will adjourn.

AT 9.36 AM THE MATTER WAS CONCLUDED