Applicants S194/2002 v MIMIA & Anor [2004] HCATrans 510 (30 November 2004)

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Applicants S194/2002 v MIMIA & Anor [2004] HCATrans 510 (30 November 2004)

Last Updated: 18 January 2005

[2004] HCATrans 510

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S638 of 2003

B e t w e e n -

APPLICANTS S194 OF 2002

Applicants

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 NOVEMBER 2004, AT 10.32 AM

Copyright in the High Court of Australia

MR S.C. CHURCHES: If it please the Court, I appear for the applicant. (instructed by the applicant)

MR J. BASTEN, QC: I appear for the first respondent, your Honours. (instructed by Australian Government Solicitor)

McHUGH J: The Deputy Registrar has certified that she has been informed by the solicitor for the second respondent, Refugee Review Tribunal, that the second respondent submits to any order of the Court save as to costs. Yes, Dr Churches.

MR CHURCHES: Thank you, your Honour. Two points that we submit go to attracting special leave in this matter. The first falls under the heading which was employed in the courts below of the “adverse document” but, in our submission, that was perhaps a misnomer. The real issue there was the adverse use of a document. It is our submission that if a decision-maker is going to use a document in his or her power by interpreting it in an adverse manner, then he or she must put that document to the applicant for explanation. That is the issue we say is really at stake here.

The relevant document is found in the decision of the Tribunal in the book page 29 at about line 20. It is the cable CX12546, which is, of course, not set out in its actual terms anywhere to be found in the Tribunal or elsewhere, but the précis there on page 29 is:

Catholic priests have likewise been arrested on occasion on suspicion of assisting the LTTE (see DFAT cable CL38147, dated 8 November 1995 –

It is our submission that if evidence is relevant and sufficiently relevant in this case to be set out in the reasons of the Tribunal, then it should not be prejudged. It must not be prejudged as to what use it might be, which is what the Tribunal has done here. The evidence should be put to the applicant so that, in this case, he might give an explanation to the Tribunal.

Now, the prejudging performed by the Tribunal here really operates on the basis that the applicant will have no evidence to dissuade the Tribunal from a view in this case that priests are arrested – and certainly there was evidence of arrest of priests, both Catholic and Hindu – but that they are arrested because of their criminal activities on suspicion of assisting the Liberation Tigers.

Now, in our submission, the reality here is that if that cable – that is, the diplomatic cable – had been put to the applicant, the applicant would have been in a position to comment on that November 1995 cable and explain why it is that priests were arrested – dare I say qua priests, not qua criminal accomplices or because they are actually involved in terrorist activities with the Liberation Tigers. That possibility was open. The applicant, we know from the facts recorded by the Tribunal, was in Sri Lanka in March 1996 because of his mother’s death, and in our - - -

McHUGH J: He has returned to Sri Lanka since he first arrived in Australia, has he not?

MR CHURCHES: Yes indeed, your Honour. Yes, he went back in March 1996 for his mother’s – well, she died, I think, the day before he got there.

McHUGH J: Yes.

CALLINAN J: But the Tribunal put to the applicant the matter of the arrests of priests and gave the applicant, or the applicant’s advisor, an opportunity of dealing with that.

MR CHURCHES: Well, not - - -

CALLINAN J: That appears at page 29, line 14. The matter was agitated. True it may be that further documents turned up, but the matter was explored and your client was given an opportunity of dealing with it.

MR CHURCHES: Well, in our submission, your Honour, that may be a general proposition, although, of course, that comes to the second point that I will need to raise before the Court, where there is a document going directly to that very general assertion by the Tribunal. But the cable we are looking at here is a very specific cable about Catholic priests being arrested on suspicion - - -

CALLINAN J: But it also refers to Hindu priests, does it not?

MR CHURCHES: Indeed – well, that is the general proposition from the Tribunal, yes, your Honour.

CALLINAN J: Well, the matter the subject of the cable was explored at some length before the Tribunal.

MR CHURCHES: Not this cable, though, your Honour.

CALLINAN J: No, not this cable, but the subject matter of the cable.

MR CHURCHES: In our submission, your Honour, the ability to respond to a specific and isolated instance, a specific instance of the general, is a chance for an applicant to deal with the issue with specificity. It is that problem of suggesting that natural justice is attained by putting propositions to an applicant like “Do you have anything further to say?”. In our submission, if there is specific material that the Tribunal is going to refer and rest on in its decisions, then that specific material ought to be put, rather than tacking it onto the general proposition that nothing was put on by the applicant in respect of these matters of where the priests are being arrested for criminal activities, or whether they are arrested because they are members of a particular social group and therefore attract persecutory behaviour.

That is really what infects this Tribunal’s reasoning and is the heart of the problem, that the Tribunal has glossed over the issue of particular social group, which was raised again and again by the applicant – the Tribunal in fact reflects that at page 16 and then again here in the reasons at page 29 of the book, the question of Hindu priests. But the Tribunal then glosses over that question of particular social group by saying, “Oh well, there’s no history of this man actually being persecuted himself”.

The history, we know, of course, is relevant to determining refugee status, but it is not solely determinative. In our submission, there was evidence available going to this question of particular social group and whether it attracted persecution in its own terms. This particular cable, itemising a particular sort of priesthood and that they were being arrested, was something that should have been put. “What do you have to say about why these priests were arrested?”.

Indeed, we would submit that that is in line with what Justice Kirby had to say in Miah. That is in the bundle of authorities, which I hope your Honours have, the small bundle of authorities, at page 4, where Justice Kirby in Miah talked about the need for natural justice in dealing with this sort of situation, and he used the expression that the Tribunal would be “better informed”. In our submission, the Tribunal needed to be better informed. That reference to “better informed” is in paragraph 193 of Miah, in the bundle, page 4.4.

Your Honours, that takes us to the second point, which is germane to the first, but a separate document is at stake. That is referred to in the courts below as the “favourable document problem”. The question that really arises there – and I freely confess, I did not see it in quite these terms as I prepared the application in December last year – that what is at stake here is the question of relevancy.

The document at stake is at page 89. Of course the point is that the document is set out nowhere in the Tribunal’s reasoning at all. At page 89 of the book, the very top quotation there, is the format of the document. That is taken from the decision of the Full Court. So the Full Court had before it, as did Justice Jacobson, the material that had been available to the Tribunal. We know that the material was available to the Tribunal because there is a letter to that effect, also set out by the Full Court, saying that the material before the delegate, or the department’s file, has been passed on to the Tribunal. So we know this was available to the Tribunal.

The issue at that point, the mechanics of the presentation of that documentation, of course, becomes a Muin point. In our submission, the applicant was misled on being told by the Tribunal that it, the Tribunal, had all the material available below before the delegate before the matter came to the Tribunal.

McHUGH J: This applicant had a previous special leave application, did he not?

MR CHURCHES: I am not aware, your Honour. It went before Justice Gaudron to be referred back.

McHUGH J: No, he had a special leave application which was heard by this Court in 2001. It came before Justice Kirby and Justice Hayne, I think.

MR CHURCHES: I am sorry, your Honour, I am not aware. I will just - - -

McHUGH J: Well, I think it is the same case. I think he was under the name Iyer in those days. It was S17 - - -

MR CHURCHES: That is one of the names in this bundle, your Honour, yes.

McHUGH J: Yes, S17 of 2001, but I think that came up through the process through the Federal Court, and he had a concurrent prerogative writ application on foot. Anyway - - -

MR CHURCHES: Apparently so, your Honour, yes.

McHUGH J: I think there were two sets of relief sought.

MR CHURCHES: Yes.

McHUGH J: Anyway. Sorry.

MR CHURCHES: Yes, thank you, your Honour.

McHUGH J: I was just trying to get it into my mind why these points were not raised in the earlier case, but it was because they came through different channels, I think.

MR CHURCHES: Yes, I am sorry, before my time, but my friend says that that is apparently the history. The point then, your Honour, about the mechanics of how we submit the Tribunal was seized of that information, which is a cable going directly to that problem of the particular social group, there it is at the top of page 89:

Tamil Hindu priests in Colombo might be in danger if not from Sinhala authorities possibly from the general population –

and from the Liberation Tigers as well. In our submission, the question then is one of how do you determine relevancy? The Tribunal has swept away this document – in fact, just has not referred to it at all – on the basis that – and the Full Court then sets out the reasoning, as it were, at page 89 at about line 15 onwards there; that is a quotation from the Full Court:

Having rejected the primary applicant’s specific claims, for reasons peculiar to him, the only thing the Tribunal could say about the document was that the primary applicant’s experience at that time did not accord with it.

Now, in our submission, that is an entirely inappropriate conflation of the question of the personal history – whether or not this man has been tortured, persecuted generally – and his quite separate refugee application that he is a member of the particular social group of Tamil Hindu priests, and that there was evidence that that particular social group was the subject of persecution.

The problem then, your Honours, as we go back to 29 of the book, which is the reaching of peroration of the Tribunal’s reasoning, at about line 13, the paragraph begins:

The Applicant’s representatives suggested that the Applicant would be at specific risk of arrest because he is a Hindu priest but there is nothing in the information available to me to suggest that the Sri Lankan police or army are arresting Hindu priests because they are Hindu priests.

So the Tribunal says “there is no information”, and that is a repeat of what the Tribunal said at page 16, at about line 17, down to 20 on page 16. There the Tribunal said:

However the evidence did not establish that the Hindu priests in question had been arrested because they were Hindu priests –

So it is the failure to grapple with “particular social group”. It is swept under the carpet on the basis of “Oh well, the man has lived in Colombo and he’s gotten away with it. He’s lived in Jaffna. I don’t believe his stories about personal degrees of persecution. Therefore I don’t need to engage with the question of particular social group”.

In our submission, that is destructive of the doctrine of relevancy, to not realise that the process of this sort of application may rest on a number of limbs, and relevancy is to be determined in the light of each limb, not by a general sweep-away of “Oh well, I don’t believe aspects of your claim, therefore I’m not going to take into account information available to me in respect of other aspects”.

The Tribunal concedes again and again – there are paragraphs that begin with the claims made as to this man’s position as a member of the particular social group of Tamil Hindu priests, and that they have a bad time of it in Sri Lanka at the relevant time, which was the mid to late 1990s; it is now some time ago.

That claim is put on foursquare by the applicant and his representatives, and the Tribunal just keeps sweeping it away by saying, “Oh well, the general history in respect of this man means I don’t need to go any deeper”. In our submission, relevancy is destroyed as an appropriate tool for judicial review if that sort of failure to address relevant information can be glossed over. Your Honours, that concludes the submissions for the applicant.

McHUGH J: Thank you, Dr Churches. Yes, the Court need not hear you Mr Basten.

The applicant is a Sri Lankan citizen whose claim for protection visa was rejected by the respondent and the Refugee Review Tribunal because of significant inconsistencies in his account of his experiences in Sri Lanka at the hands of the authorities.

The applicant earlier sought relief in the Federal Court and also brought a special leave application that was heard and rejected by this Court in November 2001. However, he had a concurrent application on foot in which he sought prerogative relief under section 75(v) of the Constitution to quash the decision of the Refugee Review Tribunal on the grounds of procedural unfairness in two respects:

(1) that the Tribunal took into account a document containing matters adverse to his claim without enabling him to respond to it; and

(2) that he had been misled by the Tribunal into believing that a document favourable to him would be, but was not, in fact, before the Tribunal in making its decision.

The applicant’s application for constitutional relief was heard on remitter by the Federal Court after Justice Gaudron made an order in this Court. At first instance the applicant succeeded on the basis that there was some material in the Tribunal’s possession with which he should have been, but was not, given an opportunity to deal. The Full Court of the Federal Court, to which the respondent to the present application appealed, formed a different view holding that the material in question could not be characterised as an important link in the Tribunal’s reasons.

The Federal Court said in any event the material was not relevant to the applicant’s claims of persecution by reason of his membership of the Hindu priesthood because it was concerned with Catholic priests.

The Full Court was also of the opinion that the primary judge did not err in dealing with the other material to which the present applicant referred. The Minister’s appeal to the Full Court therefore succeeded.

In this Court the applicant seeks to renew the arguments that were advanced at first instance and on one only of which he succeeded at first instance in the Federal Court.

In our view, the application should be refused. The holding of the Full Court of the Federal Court in respect of both matters is not attended with sufficient doubt to warrant the grant of special leave to appeal. Moreover, in our view, there has been no miscarriage of justice in this case. The conclusion of the Tribunal was based upon the applicant’s failure to persuade the Tribunal that several claimed instances of persecution of him had occurred. In short, his case failed because of his lack of credibility upon matters fundamental to his case. Those matters were not affected by the non-specific and at best only marginally relevant material to which the applicant pointed.

Accordingly, the application must be dismissed with costs.

The Court will once again adjourn to reconstitute.

AT 10.52 AM THE MATTER WAS CONCLUDED