Hassen, Ex parte - Re MIMA & Anor [2004] HCATrans 363 (21 September 2004)

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Hassen, Ex parte - Re MIMA & Anor [2004] HCATrans 363 (21 September 2004)

Last Updated: 1 October 2004

[2004] HCATrans 363

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M111 of 2000

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition or an Injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

J. VRACHNAS (CONSTITUTING THE REFUGEE REVIEW TRIBUNAL)

Second Respondent

Ex parte –

LAKMI HAFSA IQBAL HASSEN (AKA LAKMI KENGARATNAM KANDIAH)

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 21 SEPTEMBER 2004, AT 3.47 PM

(Continued from 29/7/04)

Copyright in the High Court of Australia

__________________

MR A.F.L. KROHN: May it please the Court, I appear for the applicant/prosecutor. (instructed by Ravi James & Associates)

MR W.S. MOSLEY: I appear for the respondent again, if your Honour pleases. (instructed by Australian Government Solicitor)

HIS HONOUR: Again, I think the Tribunal is a submitting party, is that right?

MR MOSLEY: Yes, that is true, your Honour.

HIS HONOUR: Mr Krohn, again this is so much of the application for order nisi as concerned procedural fairness questions, the balance of the proceeding having been dismissed by Justice Heerey on the ground that an extension of time should not go, is that right?

MR KROHN: I am sorry, your Honour, I - - -

HIS HONOUR: Justice Heerey I think refused the application for necessary enlargement of time and dismissed the application for review. That is [2003] FCA 1036.

MR KROHN: Yes, your Honour. Your Honour, since the filing of the submissions and the affidavit material of the applicant, one further affidavit has been prepared which exhibits a copy of the DNA report.

HIS HONOUR: That is the affidavit of Selvadurai Raveendran of 20 September 2004?

MR KROHN: Yes, your Honour. In the circumstances I seek leave for that to be filed, your Honour. It is the evidence of a kind which was adumbrated in the written
submissions and there is an explanation in that affidavit as to why the report was not obtained or prepared earlier. It is put as an example of the kind of evidence which the applicant could have obtained had she understood that the question of identity was still live after her two corroborative witnesses. So I do seek leave to file that affidavit.

HIS HONOUR: What do you say, Mr Mosley?

MR MOSLEY: We accept that, your Honour, that it is put on that basis.

HIS HONOUR: Yes. Yes, Mr Krohn.

MR KROHN: If your Honour please. I note also that in the first respondent’s outline of submissions it is put that the case that is sought to be advanced on the prosecutor’s outline of submissions dated 28 July 2004 would require an amendment of the draft order nisi. This is still an application for orders nisi. It is not clear to me, your Honour, that that is the case. If amendment is required in order to advance the case now sought to be advanced, then the prosecutor will apply for that amendment and the same questions would arise as in the previous case, subject to the distinction that here it is still the application for order nisi and therefore it is not a case of seeking to amend after the order nisi has been granted. The ground that was put in the draft order at paragraph (e) reciting that:

The Second Respondent failed properly to exercise his jurisdiction in that the rules of natural justice or procedural fairness were breached . . . in that in making the decision, the Second Respondent failed to make all due and proper inquiries as to the truth of the claims of the Prosecutor and in particular, failed to utilise mechanisms available within the Tribunal whereby the Prosecutor’s claims as [to] her identity could have been readily assessed.

While, your Honour, that perhaps could have been differently expressed, in my submission, it is broad enough to allow the present case to be put as set out in the outline of submissions, but it may be convenient for me to say no further about that at this stage but to hear what my learned friend says in reply. I can indicate clearly to the Court that the case that the applicant/prosecutor seeks to put is the case in her outline of submissions filed in July of this year.

HIS HONOUR: Do I properly understand that outline if I understand it as making at least these points. First, as appears at paragraph 15, the Tribunal’s focus was on establishing the applicant’s identity and that was seen by the Tribunal as a central issue – in many respects I think the central issue.

MR KROHN: Yes, your Honour.

HIS HONOUR: The complaint now made is that the Tribunal should have but did not tell the applicant in the course of its interview with her that it was unpersuaded by the corroborating witnesses she had had produced before the Tribunal.

MR KROHN: Or might be unpersuaded, your Honour.

HIS HONOUR: Why is that a breach of procedural fairness?

MR KROHN: Again, if I may refer back to Alphaone, one of the qualifications expressed at page 591 of the report related to the giving of an opportunity to respond to adverse material or to material put by somebody else that might be regarded as adverse. In the present case, effectively what the Tribunal has done - - -

HIS HONOUR: Well, go on.

2. The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material.

MR KROHN: Yes, your Honour. In my submission - - -

HIS HONOUR: How is that proposition engaged in this case?

MR KROHN: The Tribunal conducted a hearing, and the transcript of the hearing is exhibited as LK4. Effectively, what the Tribunal has done in its decision is to have determined that not just the whole claim but the whole of the evidence about identity was a fabrication and that not just the applicant but the two other witnesses were lying. The Tribunal in its decision adverted, for example, to its impression that the witness that the applicant provided as her uncle was elderly but appeared to be in the possession of his faculties and regarded it as adverse that that witness was unable to identify which of two girls in the photograph taken in 1981 was the applicant.

In a case where the applicant provided evidence of her identity in the form of two corroborative witnesses, in my submission, for the Tribunal not to have indicated that it was proposing to take the step of regarding all of them as perjuring themselves when, had the Tribunal indicated that, there was a further step which the applicant could have taken, namely, the obtaining of DNA evidence to show a relationship, in those circumstances, in my submission, it is a denial of procedural fairness. It may well be that the Tribunal is not obliged to indicate if every small detail of a claim is at peril of being rejected, but when this was the central claim and when it was supported by corroborative evidence of two witnesses and when it was not told to the applicant, “Look, here is a problem”, then, in my submission, the applicant was denied procedural fairness.

It is true that towards the end of the hearing there was the passage which is extracted at paragraph 24 of the applicant’s outline but, in my submission, that exchange between the solicitor and the Tribunal falls short of indicating that what the Tribunal was about to do was to say, “I don’t believe you and I don’t believe your putative uncle and I don’t believe the family friend”. A perusal of LK4 shows, in my submission, that nothing was said by the Tribunal to indicate that the quite extensive evidence that was given by these other witnesses was at peril of being regarded as a total fabrication.

HIS HONOUR: This exchange extracted at paragraph 24 occurs after the witnesses have given their evidence?

MR KROHN: Yes, your Honour, towards the end of the hearing.

HIS HONOUR: And the Tribunal says:

Your identity is in issue . . . It’s clearly been an issue since you arrived and it’s clearly been something you and your lawyer are aware of.

What message was being conveyed other than this is a live issue?

MR KROHN: In my submission, your Honour, it is being conveyed that identity is an issue in the case. It is not, in my submission, being conveyed that here is something where the Tribunal regards there as being on foot wholesale and complete perjury by the corroborative witnesses. That passage, your Honour, for completeness is found at page 53 of the transcript which is LK4 at lines 29 and following.

HIS HONOUR: Yes, I have it.

MR KROHN: It is not put by the Tribunal to either of the witnesses that, “Really your evidence is just a put-up job”. Their evidence concludes – the second witness – on that same page, 53, and the uncle’s evidence concludes at the bottom of page 49 of the transcript, your Honour. The other issues in this application are similar to the issues in the one that your Honour has previously heard today. There is a question in addition of the enlargement of time, as this is still an application for order nisi. The history of this matter was also a request for ministerial intervention and I would adopt the submissions that I made earlier in relation to that, your Honour.

In my submission, the evidence which the applicant has now obtained to put before the Court as an instance of the kind of evidence which she could have obtained indicates in exhibit LK5 that, had she been aware that this was still a matter, she could have obtained evidence on page 2 of the report as to probability of niece and uncle relationship and in the particular report obtained here, again put as an example of what she could have obtained. The probability of them being related in a niece and uncle relationship was calculated as 92 to 1 or probability of 99 per cent. In this case, your Honour, I note that the draft order nisi seeks relief by way of writs against both the Minister and the Tribunal, so to that extent it is in a different situation from the case your Honour has reserved.

I think on reconsideration I have not – I do submit that in this case the simplicity of the step which the applicant could have taken and, in my submission, should have had the opportunity to take and its potential for resolving the question of identity and the seriousness of the consequences for the applicant are to be taken into account also in considering the question of the enlargement of time. Apart from that, your Honour, I rely on the written submissions. May it please the Court.

HIS HONOUR: Thank you, Mr Krohn. Yes, Mr Mosley. If you would direct your argument to whether it is arguable that there was a want of procedural fairness, I would be assisted.

MR MOSLEY: Thank you, your Honour. If I could start with my learned friend’s last comment, he said, “the simplicity of the step that the applicant could have taken”. It is, in my submission, patently clear that the applicant’s identity was at the forefront of the issue in this case. As my learned friend said, the simplicity of the step the applicant could have taken and what she does is now go out and get some DNA evidence, she was aware that that was in issue from the time of the delegate’s decision but comes to this Court and says, “Look, now I’ve taken the trouble to do what perhaps I should have done before, so you should extend the time and you should grant me an indulgence because I’ve now got some material which I didn’t bother to put before the delegate and perhaps I shouldn’t have there because it may have been separate”, but it was clear thereafter that her identity was central but she does nothing about it until yesterday. She produces a report which suggests what she might have done.

So, in my submission, your Honour, it is not appropriate that your Honour should see fit to find that the Tribunal denied her procedural fairness. As I said, the applicant knew her identity was central. The delegate, as we have said in our written submissions, had rejected her claimed identity and that was after giving the applicant an opportunity to comment on the departmental document examiner’s report. Does your Honour wish me to take you to that? There was a document examiner’s – I am sorry, that may not be before – I do not know whether that is exhibited, but there was a document examiner’s report.

HIS HONOUR: If it is not in evidence, it is not in evidence, Mr Mosley.

MR MOSLEY: I am sorry, your Honour, but in any event the applicant could have produced her identity evidence at the relevant time. It is clear, as my learned friend accepts, that the Tribunal put at the end of the hearing to the applicant’s adviser, who I also add was a solicitor and registered migration agent, that identity was central to the case. When one looks at the transcript which is before your Honour, page 35, for instance, at line 10 there is discussion there about the fact that the applicant had produced a passport in one name and an identity card in another name. The essence of the matter is that the Tribunal accepted one and not the other as being an accurate representation of her true identity, if I can put it that way.

There was discussion where that is put to her. For instance, at line 25 on page 35:

There’s a bit of a problem. You’ve got a passport that one person says is genuine and you say is not genuine or you say was falsely obtained. I know to get a passport you need to use your national identity card and a birth certificate. So do we agree this far?

INTERPRETER: Yes.

MR VRACHNAS: If I conclude that the passport is genuine then it follows that you must have somewhere a national identity card and a birth certificate that identifies you as the person in the passport. Do you understand what I’m saying? I also understand you’ve given me some information to counter that conclusion. I understand your answer is that you’re not the person in the passport, you’re the person in the identity card you’ve provided.

INTERPRETER: Yes.

MR VRACHNAS: So what do you think would happen if you went back to Sri Lanka?

There are other comments about that with the applicant but, in my submission, it is put front and centre as far as the applicant is concerned, as far as the applicant’s adviser is concerned, that her identity is critical.

The authorities I referred your Honour early this afternoon of Abeysinghe in the Full Court, which is No 14 on our list, your Honour’s
own decision in Abebe, which I have set out, paragraphs 187 and 188 in our written submissions. Your Honour makes the point with Justice Gummow, I think in Abebe, at 187 that it is incumbent upon the applicant to make out their own case. Does your Honour wish me to read that passage because it is quite pertinent?

HIS HONOUR: No, I do not.

MR MOSLEY: In any event, the next paragraph is even more pertinent because your Honours then say:

In this case the applicant knew that her claims about her detention and rape might not be accepted. The primary decision maker –

having said so. That is the position here too, your Honour, so it cannot be said, in my submission, that it was incumbent upon the Tribunal in some way to say, “Look, I don’t believe you about this”, and to give her an opportunity which she had to present evidence to the Tribunal to satisfy the Tribunal as to her identity at the relevant stage and not now.

Save for that, your Honour, we rely on the written submissions. I would make the point in relation to the extension of time that the order nisi application was 20 months after the Tribunal’s decision, the order nisi application having been made on 20 September 2000.

HIS HONOUR: As I say, what I sought assistance on was confined to the arguability of the ground in issue.

MR MOSLEY: They are the submissions, your Honour.

HIS HONOUR: Yes, Mr Krohn.

MR KROHN: Two points, your Honour. The first is that in response to the issue of the document examiner’s report, the applicant did respond. She responded by bringing not one but two witnesses.

HIS HONOUR: I understood this examiner’s report is not in evidence.

MR KROHN: No, your Honour.

HIS HONOUR: If it is not in evidence, I do not want to know about it.

MR KROHN: So far as the applicant knew that her identity was an issue in the case, her response was to bring two witnesses, not just one, and that the comments that were made by the Tribunal in the context of dealing with
the passport and the identity card, in my submission, are an indication of really what the Tribunal ought to have done then later in the hearing in dealing with the two witnesses.

In the passage to which my learned friend has taken your Honour, the Tribunal has said something to the applicant about, “Here’s a problem. Conflict between national identity card and passport. You say one is correct. There is a question.” That conduct by the Tribunal, in my submission, indicates that that is the kind of way that the Tribunal is going to deal with the matter. Then when nothing is said about the two witnesses whose evidence is presented to the Tribunal later, then the silence of the Tribunal as to any problem, in my submission, gains some strength as an implicit indication that there is not such a problem.

To that extent, your Honour, again, while certainly it is not for the Tribunal to make out the applicant’s case, there is nevertheless, in my submission, a proper dialectic between the Tribunal and applicants in relation to critical matters and matters that may be critically regarded as adverse by the Tribunal. In my submission, the circumstances of this case put it on that side of the line. To that extent, your Honour, in my submission, this is a different case from the case in Abebe. That is a case also, as I think my learned friend indicated, where the claim involved sexual assault. May it please the Court, those are the submissions in reply.

HIS HONOUR: Thank you, Mr Krohn.

The applicant, a citizen of Sri Lanka of Tamil ethnicity, arrived in Australia on 30 March 1997. She applied for a protection visa on 29 April 1997. That application was refused by a delegate of the Minister on 17 December 1997 and the applicant sought review of that decision by the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the delegate’s decision on 15 January 1999.

One month later the applicant applied for review of the Tribunal’s decision by the Federal Court of Australia, but on 24 August 1999 that application was dismissed by consent. Shortly after, on 3 September 1999, the applicant asked the Minister to exercise his powers under section 417 of the Migration Act 1958 (Cth), but a little more than one year later, on 11 September 2000, the Minister declined to consider exercising that power.

On 29 September 2000 the applicant filed an affidavit in this Court in support of an application for order nisi seeking constitutional and other relief. In November 2000 I ordered the remitter of part of that application to the Federal Court of Australia. So much of the matter as was remitted to the Federal Court was dismissed by that court on 1 October 2003: see Hassen v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1036. The remitted application was refused on the ground, among others, that the necessary enlargement of time for bringing the application should not be made.

Subsequently in February 2004 I ordered that so much of the application as sought relief concerning the exercise or failure to exercise the ministerial power under section 417 of the Act should stand dismissed. The balance of the application founded in allegations of a breach of the rules of natural justice or procedural fairness now comes on for hearing.

The respondents contend that the claims of want of procedural fairness which now are sought to be made depart in important respects from the draft order nisi that was filed in support of the original application. It is unnecessary to consider whether that is so. Rather, it is convenient to take the applicant’s most recent formulation of the allegation of want of procedural fairness and consider whether that allegation raises an arguable case.

The applicant’s claim to protection was founded in her contention that she was a Hindu Tamil, not a Muslim Tamil, as her passport suggested. In the Tribunal this was understood as raising an important question about the applicant’s identity. The Tribunal, in the course of its taking evidence from the applicant, pointed to the disparity between the passport, which was produced, and what was said to have necessarily been the identity claimed compared with the identity that must have been demonstrated by national identity card and birth certificate in order to obtain the passport produced.

In support of her claims the applicant had the Tribunal examine two other witnesses concerning the applicant’s identity. At the conclusion of the evidence given by those witnesses, the applicant’s representative said to the Tribunal that “we have submitted all the documents”. The representative went on to say:

We wish to know whether these identities concerned that is being the very subject of this question of identity, whether you need more documents or anything else of that nature. If you can indicate then we may attempt to make some more - - -

The Tribunal responded:

I can’t indicate. Your identity is in issue, I can tell you that. It’s clearly been an issue since you arrived and it’s clearly been something that you and your lawyer are aware of.

The applicant contends that the Tribunal should have, but did not, say to her then, or at least at some time before giving its decision, that the Tribunal was considering rejecting the evidence given by the two witnesses whom she had had called to give evidence to the Tribunal. The applicant asserts that this constitutes a denial of procedural fairness because the Tribunal failed to inform her that her corroborative evidence had been rejected and failed to give her the opportunity to lead further evidence in relation to this crucial issue. In support of that contention the applicant has recently filed an affidavit disclosing what is said to be DNA results supportive of the claims which she had made to the Tribunal.

It is necessary to return to first principles. As Justice Brennan pointed out in Attorney-General (New South Wales) v Quin (1990) 170 CLR 1 at 35, when speaking of judicial review:

The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government.

Having referred to Chief Justice Marshall’s well-known statement in Marbury v Madison (1803) 5 US 87 at 111:

“It is, emphatically, the province and duty of the judicial department to say what the law is.”

Justice Brennan went on at pages 35 and 36 to say that:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

It is therefore not to the point to attempt to demonstrate that the factual conclusion which the Tribunal reached may have been in error. The question before the Court is limited to declaring and enforcing the law affecting the extent and exercise of power in this case by the Tribunal. Thus the critical question becomes whether it is arguable, as the appellant contends, that the Tribunal failed to accord procedural fairness to her by not informing her that her corroborative evidence had been, or may later be, rejected and that she should seek and obtain further evidence.

It may be doubted that the exchange between the Tribunal and the applicant’s representative which I have earlier set out constituted anything less than the Tribunal informing her that her corroborative evidence had at that stage not been accepted and may later be rejected. As the Tribunal said in answer to the question from the applicant’s representative about whether the Tribunal could indicate whether more information or evidence was necessary, the applicant’s identity was in issue and had clearly been an issue since the applicant had arrived at the Tribunal.

As was said by the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited [1994] FCA 1074; (1994) 49 FCR 576 at 591:

A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted.

No doubt, as their Honours also go on to point out in those reasons, there are circumstances in which a tribunal or decision-maker may be bound to draw attention to an issue or to material bearing upon an issue.

An obvious case of that kind is where the decision-maker obtains material which is not supplied by or known to the person who may be affected by the decision. There will be cases where such a person is entitled to respond to any adverse conclusion drawn by the decision-maker on material of that kind. There may even be cases where the material being supplied by or known to the subject, the conclusion which the decision-maker would draw from it is not what their Honours called in Alphaone at 591 an obvious and natural evaluation of that material which may require the decision-maker to draw attention to the issue and invite responses.

The present is not such a case. The central issue before the Tribunal was the identity of the applicant. The applicant advanced material to the Tribunal which the Tribunal did not accept. That decision may be one which the applicant would contend is factually wrong. Be that as it may, on judicial review the question for the Court is whether the law affecting the extent and exercise of power has been complied with. In my opinion it is not arguable that there was in this case any want of procedural fairness. That being so, it is unnecessary to embark upon consideration of any of the further difficulties which the respondents contend lie in the path of the applicant obtaining the relief which she seeks. In particular, I need not in this case give attention to the consequences of the elapse of time between the decision of the Tribunal now sought to be impugned and the institution of proceedings in this Court.

The application for order nisi will be dismissed. The costs of the application must be paid by the applicant. I will certify for the attendance of counsel.

Do counsel wish to be heard about the form of those orders?

MR KROHN: No, may it please the Court.

HIS HONOUR: It is now 20 to 5. I will adjourn until 9.30 tomorrow and we will take the last matter remaining in the list at 9.30 tomorrow.

AT 4.37 PM THE MATTER WAS CONCLUDED