NAVK v MIMIA & Anor [2005] HCATrans 846 (7 October 2005)

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NAVK v MIMIA & Anor [2005] HCATrans 846 (7 October 2005)

Last Updated: 18 October 2005

[2005] HCATrans 846

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S340 of 2005

B e t w e e n -

NAVK

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA

Second Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 OCTOBER 2005, AT 11.09 AM

Copyright in the High Court of Australia

MR N.J. WILLIAMS, SC: May it please the Court, I appear for the applicant. (instructed by Ma & Company)

MR S.J. GAGELER, SC: If the Court pleases, I appear with MR T. REILLY for the first respondent. (instructed by Australian Government Solicitor)

McHUGH J: Yes, Mr Williams.

MR WILLIAMS: Your Honours, there are in substance two questions. The first concerns the test for establishing jurisdictional error under section 75(v) based upon a lack of probative evidence for a critical finding. The question is whether jurisdictional error is shown where the satisfaction or the non-satisfaction of the decision-maker on the matter founding jurisdiction was based on findings or inferences of fact which were not supported by some probative material or logical grounds. The second question is whether the principle that an Appeal Court may give weight to the conclusions of the primary judge is properly to be applied to matters of inference from uncontested primary evidence of very limited scope in respect of which the primary judge enjoyed no advantage of any kind over the Full Court.

Before the Tribunal the applicant claimed that she would be persecuted on return because of allegations that she had made that attracted publicity adverse to the Chinese authorities in Australian and international media. The country information relevant to this claim is set out in full in the first four pages of the book and summarised usefully from page 3 of the book, about line 17. The cable asserts in paragraph A – this is a Department of Foreign Affairs and Trade cable – only that:

APPLYING FOR REFUGEE STATUS ABROAD IN ITSELF DOES NOT NECESSARILY EXPOSE AN APPLICANT TO PERSECUTION ON RETURN.

That statement is self-evidently highly qualified and leaves open the question of whether an applicant may be persecuted if more is shown than the mere fact of application for refugee status. To the extent to which the cable deals with the position of those who attract publicity adverse to the Chinese authorities, it does so on page 4 of the book in reproducing official advice supplied by the Chinese Ministry of Foreign Affairs.

At page 4, about line 20, the cable asserts – and this is recording the official advice of the Chinese Ministry, that there is no such thing as a refugee from the PRC and then goes on to deal at about line 25 with a specific question about passport renewal or extension for those who make refugee claims abroad. It states there as the official position that those:

WHO TAKE PART IN ACTIVITIES WHICH JEOPARDISE NATIONAL SECURITY, HONOUR AND NATIONAL INTEREST –

will be denied renewal or extension of their passports.

The claim that was made in this respect is articulated on the applicant’s behalf at page 7 of the book from about line 40 to about line 48. The point is made by the applicant’s counsel to the Tribunal at about line 43 that:

The point . . . is not that the Chinese authorities are aware of the case, it’s the Chinese authorities are aware that there has been adverse publicity about them in the media because of impending prosecution –

The Tribunal asked questions of the applicant at page 31 about a related though perhaps subtly different matter. At about line 35 the Tribunal asked a question in perhaps slightly different terms:

you will be persecuted on your return to China if the authorities there know that you’ve applied for refugee status in Australia.

The applicant answered that question at page 32. The answer on page 32 from about line 10 started by focusing upon the fact that her position is different because her claims have been publicised. She went on at about line 17 to disagree or reject the proposition that the Tribunal had put to her and to assert, in effect, that anyone who did seek refugee status would be persecuted on that account, but she returned at page 34 at about line 25 to again emphasise the repeated publicity given to her story, a story which, of course, was one critical of particular officials in the PRC and which made allegations against them.

The passages in which the Tribunal dealt with this evidence is conveniently set out in the joint judgment of Justices Nicholson and Edmonds at page 96 in paragraph 24 from about line 30. On page 96 from about line 35 the Tribunal makes essentially the same finding twice, first in general terms and then in more specific terms deals with the persons facing criminal charges, which the joint judgment emphasises.

At page 97 in paragraphs 27 to 38 the joint judgment rejects a submission put for the applicant that the intolerance of open dissent abroad, apparent in the formal advice of PRC policy from the Ministry of Foreign Affairs on passport renewal, supports an inference that publicised criticism abroad of the Chinese authorities could lead to persecution on return. The critical passages in the joint judgment then occur on the following page, page 98 at paragraphs 32 and 33. From about line 35 on page 98 the joint judgment summarises the conclusion that I have taken the Court to in slightly longer form on page 96, then in paragraph 33 states the conclusion. First, the judgment acknowledges that:

There was no probative evidence to support that finding/conclusion, but none was required. Importantly, there was no probative material pointing the other way. The Tribunal’s finding/conclusion amounted to no more than a rejection of the claim –

The characterisation of the key finding as no more than rejection of a claim or rejection of evidence - it would have to be a claim since it was made by the applicant’s counsel - is critical to the reasoning on one view. In the opening sentence there is an acceptance of a lack of probative evidence but the reason then given was that because the finding was expressed as a rejection of a claim, it fell within the line of cases holding that a decision-maker can, without other evidence, simply reject evidence given by an applicant.

Now, those cases, WAJS being one example, the case referred to at the foot of page 98, deal with a rejection of an applicant’s evidence as inherently improbable because of surrounding circumstances without the need for other positive evidence to support the rejection. That, of course, is not this case. It cannot be correct that a decision-maker can merely by expressing its conclusion as rejection of a claim give itself jurisdiction where a critical step or finding is unsupported by probative material.

McHUGH J: But why not? Why cannot the Tribunal say, as in this case, “I don’t accept the claim she made. I just don’t accept it”? Surely that is open to - - -

MR WILLIAMS: The Tribunal can say that if the claim is inherently improbable.

McHUGH J: They may have treated this as inherently improbable. They do not have to see it as inherently improbable, they might have just thought it was not probable or they just do not accept it.

MR WILLIAMS: The claim in the present case was that a person who criticises the authorities abroad may be persecuted upon return.

McHUGH J: Your client was asserting that because she had made claims in support of her application that that would be grounds for persecuting if she was returned to China. The Tribunal said, “I don’t accept that”. Why can it not say that?

MR WILLIAMS: Firstly, your Honour, because there was no probative evidence in support of it and there was probative evidence pointing the other way.

McHUGH J: On that basis, Mr Williams, any time a person made any sort of claim the Tribunal could not reject it unless there was some probative evidence supporting it.

MR WILLIAMS: If the claim is inherently credible and supported by probative evidence, as this one was, we say, in the form of the DFAT cable read as a whole, and if that finding is critical to the rejection of the claim, then it does involve jurisdictional error. In the present case the Tribunal could not reject this claim without being satisfied that she would not be persecuted, she did not have a well-founded fear of persecution upon return by reason of the statements made abroad. That finding was critical to the Tribunal’s satisfaction or, alternatively, non-satisfaction, leading it in the two alternative directions.

McHUGH J: Supposing she had said, “If I were to return to China the chairman of a particular committee will persecute me.” Could the Tribunal say, “I don’t accept that claim” in the absence of some evidence that the chairman would not persecute her?

MR WILLIAMS: The Tribunal could reject the claim based on a whole range of factual matters. The Tribunal could reject her evidence based on an inherent lack of credibility, based on demeanour, based on improbability, but where the claim is one involving, as it does, a credible contention about the treatment that will be afforded to a person and supported, as we put it, by probative evidence, the Tribunal simply cannot reject it without evidence.

McHUGH J: This is a new hazard for tribunals of all sorts, not merely this Tribunal. That is the very function of using these tribunals. They are not courts.

MR WILLIAMS: We accept that, with respect, your Honour, but in the present case it was a critical step in the Tribunal’s reasoning for it to reach a conclusion, make a finding as implicitly as at least it did that despite the evidence suggesting an intolerance of criticism abroad, at least as manifested in the policy on passport renewal, a matter which is not insignificant, denial of an essential attribute or a critical aspect of national protection, there being evidence of such intolerance of criticism abroad, the Tribunal could not simply reject the claim out of hand simply as a matter of form by saying, “Well, I reject the claim”.

Implicit in that was a finding that there was no well-founded fear by reason of the criticism abroad and that is a finding which, as the Full Court said, was without evidence. The applicant’s claim was not mere speculation or conjecture. It is not in the category of matters referred to in Guo Wei Rong. It was, as I have said, in our submission, open to infer from the very limited comfort given by the Foreign Affairs cable, combined with the official statement of position on passport renewals, that the applicant did face a well-founded fear.

The scope of the no evidence ground at common law is a matter having wide implications. Characterising a finding as merely rejection of a claim does not take it outside the principle that findings, express or otherwise, that are critical to reasoning must be based upon evidence. The case raises squarely, in our submission, the issue left open for consideration in S20, that of the proper test for determining jurisdictional error.

McHUGH J: I thought back in Guo’s Case that we held that the Tribunal could reject claims notwithstanding there was no evidence to support it.

MR WILLIAMS: The Court held in Guo that claims which were mere speculation or conjecture could be rejected. This was not such a claim. It simply cannot be said that a claim that a person may be treated more harshly on return to the PRC by reason of attracting adverse publicity with PRC authorities abroad in the national and international media is mere speculation or conjecture. It is a claim that is not inherently incredible and the rejection of the claim for refugee status here depended upon a finding that the treatment that would be accorded would not be harsher as a result of that.

That was a finding that was made without evidence, as the Full Court acknowledged. The question left open, if I can take the Court briefly to it, in S20 is in the applicant’s book of authorities at page 109. The statement of the issue comes over from the top of the previous page, the assertion on behalf of the appellant in that case was that the:

determination that the condition upon which depended the power . . . was not met was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds.

In paragraph [36] of the joint judgment, with which your Honour Justice Callinan agreed, reference was made to the:

stricter view perhaps . . . of what must be shown to make out a case of error grounding relief under s 75(v) of the Constitution –

And in paragraph [37] the question was left open because in the present case:

the determination by the tribunal was not irrational or illogical as the appellant contends.

In the present case, as we put it, that question is raised squarely. The evidence did not permit a finding to be made that there was no well-founded fear upon return by reason of attracting adverse criticism to the PRC in the national and international media abroad.

The second special leave question is whether the principle that an appeal court may give weight to the views of a primary judge is properly to be applied to matters of uncomplicated inference from uncontested primary evidence of very limited scope where the primary judge enjoyed no advantage. It can be accepted for the purposes of argument that it is settled that in complex matters of judgment or impression, such as questions of substantial similarity in copyright or in passing off cases or in cases involving a substantial body of evidence or complex inference, the appeal court may properly give weight to the views of the primary judge, reflecting the wide range of advantages that a primary judge may enjoy, even where no witnesses are involved, but the principle has outer limits.

In cases such as this where the evidence is in a very narrow compass, and your Honours have this morning seen, I apprehend, all of the relevant evidence, and the primary judge truly enjoyed no advantage in respect of it, to give weight to the view of the primary judge is, in our submission, to depart from principle. Your Honours, those are our submissions.

McHUGH J: We need not hear you, Mr Gageler.

The Court is of the view that an appeal in this matter would have insufficient prospects of success to warrant the grant of special leave to appeal. Accordingly, the application is dismissed with costs.

The Court will now adjourn to reconstitute.

AT 11.28 AM THE MATTER WAS CONCLUDED