Applicants A1 of 2002 v MIMA A1/2002 [2003] HCATrans 671 (11 April 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A1 of 2002

B e t w e e n -

APPLICANTS A1 OF 2002

Applicants

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 11 APRIL 2003, AT 1.30 PM

Copyright in the High Court of Australia

MR B.M. O'BRIEN: If your Honour pleases, I appear on behalf of the applicant. (instructed by Windevere Bellman)

MS S.J. MAHARAJ: If the Court pleases, I appear for the respondent. (instructed by Sparke Helmore)

MR O'BRIEN: This is a matter that has come on three times in the appellate courts and this is the third occasion. The hearing which is the subject of this appeal occurred before the Refugee Review Tribunal on 25 February 2000 and a decision was handed down on 19 May 2000. That decision was subject to an appeal to his Honour Justice O'Loughlin and that decision was handed down on 11 April 2001 and in turn there was a further appeal to the Full Court which was handed down on 21 December 2001.

The issue which we say arises on appeal is the issue which was raised in both the High Court decisions of Miah and Muin, and I understand your Honours will have those citations and I will not refer you to them. The issue arises in this way. The Tribunal decided not that the applicants lacked a fear of persecution, not that the applicants lacked a well-founded fear of persecution. The Tribunal in fact made no decision on that point. Rather, the Tribunal decided the point on the simple basis that assuming there was a well-founded fear of persecution in relation to events which occurred prior to 1991, the situation had changed in Nigeria such that the risk of harm in the future were they to return to Nigeria was remote.

In coming to that conclusion the Tribunal relied on a publication in the Economist. It further relied on a second publication by two authors called Boyle and Sheen entitled "Freedom of Religion", and finally it relied on a publication from the BBC news world service. Those materials were not shown to the applicant and their attention was not drawn to those materials and they were not invited to comment on them. The basis of the decision, in my submission, was a reliance on those materials and in so doing this application for leave raises the very issues that were ventilated in the two High Court decisions of Miah and Muin.

Had the materials upon which the Tribunal relied been drawn to the attention of the applicants, the applicants would have been in a position to take the point which was raised during the hearing on 25 February. On 25 February during the course of that hearing the Tribunal notes that the situation had changed in Nigeria in certain respects and the applicants' response was that whether or not it had changed, to quote the words from the decision of the Tribunal which appears at application book page 28 lines 7 to 9:

there would be nothing Obasanjo could do if the Muslims attacked the Applicant.

McHUGH J: Sorry, what page is that?

MR O'BRIEN: Application book 28 lines 7 to 9.

McHUGH J: Yes, I have it.

MR O'BRIEN: There the applicant said:

there would be nothing that Obasanjo -

that is a reference to the President -

could do if the Muslims attacked the Applicant.

The opportunity which the applicant was denied was to put a construction on those materials upon which the Tribunal relied which was different to the construction the Tribunal had put on it. What the Tribunal had said is the situation had changed since the time the applicants were living in Nigeria, but what the applicant was saying, whilst it had changed or whilst it may have changed, it had not changed to such an extent that the government was now in a position to protect people such as he who intended to go out and preach their religion. He still was open to attack from a Muslim majority and he was at risk as a consequence.

The issue therefore raises very much the issue which was considered in Muin in which the applicant in Muin was saying irrespective of the attitudes of the government, is the government really in a position and is it really willing to protect me, a minority ethnic Chinese, from attack by the Malayan majority? If I may go on to refer to Muin and in particular to your Honour Justice McHugh's judgment in Muin [2002] HCA 30; 190 ALR 601, and if I may refer your Honours to page 633. There your Honour says in comparing and contrasting Muin with Miah:

First, Mr Muin had an opportunity to comment that Mr Miah did not have. Second, the issue of the Indonesian government's protection against anti-Chinese violence was obvious. Third, the new information in the present case was less critical to the outcome of the decision than it was in Mr Miah's case. Fourth, the change of circumstances in Miah occurred after Mr Miah made his written application and written submission to the department. The country information relied on was also published after that date. In the present case not all of the material was new. Fifth, unlike Mr Miah, Mr Muin had the benefit of an oral hearing. He appeared before the tribunal on 18 November 1998, just 1 week before the tribunal's decision, but well after the key events in Indonesia had taken place. When the hearing commenced, the member told him that she must be satisfied "that protection from that persecution is not available to you from the Indonesian authorities".

That is the end of the passage I refer to. In my submission, the facts in the case at Bar are hardly distinguishable from the facts in Muin and your Honours will recall that in Muin by a majority of 4:3 this Court held that to fail to bring to the attention of the applicant that adverse material upon which it was proposed to rely constituted a denial of natural justice.

The decision of Justice O'Loughlin was, as I said, handed down on 11 April. The decision of the High Court in Miah was handed down on 3 May 2001. As a result, his Honour Justice O'Loughlin did not have an opportunity to consider the application of the decision in Miah, particularly in respect to the construction of 424A in the case before him. When the case went on appeal to the Full Court of the Federal Court, the decision in Miah had been handed down but the decision in Muin had not been handed down. The Full Court considered a number of points but one point it never considered was whether the decision in Miah had any application to the matter before them. That was no doubt due to the fact that one, the applicants were then unrepresented before the Full Court; and two, the Full Court did not draw their attention to the fact they may possibly have derived some advantage from the decision in Miah.

Our case would be simply this, that either this case is or is not distinguishable from Muin unless the Commonwealth - and I do not understand the Commonwealth to be adopting this position - were to invite this Court to reconsider its decision in Muin. If this is not a case that is distinguishable from Muin, then, in our respectful submission, in the interests of the administration of justice, the applicants should be given special leave to appeal.

McHUGH J: What about 424A(3)? Is that not applicable in this case?

MR O'BRIEN: Yes, your Honour, and I am happy to deal with that. If I may - - -

McHUGH J: I think you had better because I think it is pretty fundamental.

MR O'BRIEN: Yes. If I could ask your Honours to look firstly at 424A(1) and to note that under 424A(1)(a) it is the applicant who is to be given particulars of the information upon which the Tribunal may rely. Under 424A(1)(b) it is the applicant who is to have that information put to him in a way in which he can understand why it is relevant. Under 424A(1)(c) it is the applicant who is to be invited to comment on it; not anyone else, and, under 424B(1)(b), the comment is to be carried out in the ways specified by the Tribunal. Finally, if the applicant fails to personally comment in the manner specified, then the Tribunal is free to make a decision without taking any further action. In other words, it is free to draw its own conclusions.

From that context it is clear to see that that set of provisions, of which 424A(3) forms part, are designed to elicit a response from the applicants personally; not from anyone else but from the applicants personally. It is therefore obvious why that regime that is set up in 424A(1)(a) does not apply to issues that do not affect the applicant personally but only affect the applicant as a member of a class of people. In those circumstances there is no sound reason why the applicant in particular has to respond personally to that material. In those circumstances it may be much more appropriate for some other person to comment on the relevant information, such as an expert, particularly someone who is expert in the political circumstances surrounding a particular country at a particular time.

In my submission, that is a construction which can be put on 424A(3) which would indicate that it was not intended to cut down or abridge the rights of an applicant but merely to confine the regime that is created by 424A(1) to those situations in which it is natural and obvious that it really should be the applicants who are called upon to comment, not some other person. Furthermore, that construction, in my submission, must follow from the language of 424, 425. If may take your Honours to 425(1), it says:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

May I point out that 425 prior to the enactment of the provisions which introduced 424A, prior to that amendment, 425 read somewhat differently. In particular, the second limb of 425(1) was not there. The words "and present arguments relating to the issues arising in relation to the decision under review" were not there.

Now, if the Parliament is requiring the Tribunal to invite applicants to "present arguments relating to the issues arising in relation to the decision under review", and one of those issues goes to the class of people to whom the applicant belongs and not to the applicant personally, and that issue may well prove to be determinative of the outcome of the application for refugee status, if that is the situation, then clearly not to put the applicant on notice of the particulars of the information to which that issue relates would be to act contrary to what is said here in the second limb of 425(1).

McHUGH J: Yes, but your client was given an opportunity to present his case on the two issues that are dealt with in the country information, namely whether the south of Nigeria was predominantly Christian and the north of Nigeria predominantly Muslim, and also the question of violence. One of these books was issued in 1997, was it not, and the other in 2000, the BBC article?

MR O'BRIEN: The BBC article appeared in April 2000. That was after the hearing on 25February 2000 but before the - - -

McHUGH J: Yes, but it was not new information or decisive information in the sense that I used those expressions in Miah.

MR O'BRIEN: Indeed. The expressions that you used in Miah, it was not, but in relation to the same issue that arose in Muin, in my respectful submission, it was. The information was of the same character. I will take your Honours back to the passage I read to your Honours earlier to indicate that in Muin much of the information had already come into existence prior to the hearing on 18 November 1998. All that was known about the attitudes of the new government, President Habibie's government, the attitude of General Wiranto, they had all become known prior to 18 November 1988, and yet your Honour said that still was not good enough. You had to go further and you had to specifically draw to the attention of the applicant that reliance may well be placed on that material, and invite the applicant to comment.

Now, that did not happen in Muin and in our submission it did not happen in the case at Bar. Our case, we say, is indistinguishable from the situation in Muin and if it is distinguishable, it is only slightly distinguishable, in which case it must give rise to a special leave question. They are my submissions, your Honour.

McHUGH J: Thank you. The Court need not hear you, Ms Maharaj.

The applicants contend that the Refugee Review Tribunal failed to comply with the procedures required by the Migration Act 1958 and denied the applicants natural justice because the Tribunal did not give the applicants an opportunity to comment upon an article published in the Economist magazine, a passage from a book and a BBC news report concerning the state of affairs in their country of origin.

In our opinion, the actual decision of the Full Court of the Federal Court dismissing the applicants' appeal from the dismissal of their application for review of the Tribunal's decision is not attended by doubt. Special leave to appeal is refused with costs.

AT 1.49 PM THE MATTER WAS CONCLUDED