VSAB & Anor v MIMIA & Anor [2006] HCATrans 540 (29 September 2006)

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VSAB & Anor v MIMIA & Anor [2006] HCATrans 540 (29 September 2006)

Last Updated: 13 October 2006

[2006] HCATrans 540

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M53 of 2006

B e t w e e n -

VSAB AND VSAC

Applicants

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 29 SEPTEMBER 2006, AT 2.02 PM

Copyright in the High Court of Australia

MR S.P. ESTCOURT, QC: May it please the Court, I appear with MR J.A. GIBSON, for the applicants. (instructed by Erskine Rodan & Associates)

MR C.J. HORAN: May it please the Court, I appear for the first respondent. (instructed by Australian Government Solicitor).

HAYNE J: Yes, Mr Estcourt.

MR ESTCOURT: Yes, thank you, your Honour. Your Honour, this application raises in part a visitation point, but it has at its heart, in our submission, a point of general principle. As to the visitation point, we contend, your Honours, that the Tribunal illogically reasoned from entirely non-probative material that the male applicant was a national of the former Yugoslav Republic of Macedonia. That was based on the male applicant’s dubious possession of a passport from that country.

What we say, your Honours, is that without rejecting the applicant’s claim that that passport was purchased, the fact of its possession was not capable of being probative of nationality. Equally, an apparent eligibility to hold that passport under Macedonian law and things that were done under the authority of that passport were not capable of being probative of nationality absent the rejection by the Tribunal of the applicant’s claim that the passport was purchased with bribes.

Your Honours, as to the point of principle, it is our submission that when nationality is disputed, the gravity of the issue calls for a construction of section 36(6) of the Migration Act and of Article 1A(2) of the Refugees Convention which mandates that nationality should appear from direct evidence of the foreign domestic law and from demonstrably clear evidence of the applicability of that law to the individual circumstances.

HAYNE J: At page 24 of the application book, line 4, the Tribunal expresses itself as being:

satisfied that he is a national of FYROM, as evidenced by the issue of the passport to him -

There is a finding - you may say it is right or wrong - but they make the finding, do they not?

MR ESTCOURT: They do, your Honour, yes.

HAYNE J: So how does the point arise?

MR ESTCOURT: We challenge that finding on the basis that it is illogical in the sense identified by the Court in Applicant S20, and that it is based on non-probative material because the Tribunal did not reject the applicant’s claim that that passport was purchased by the payment of bribes. In other words, the Tribunal’s reasoning, in our submission, was entirely illusory. It was built on a false foundation. It was absent the rejection of the claim that the passport was bogus. It was not capable of being probative of nationality. It was not capable of being probative of anything.

Your Honours, it is said against us in respect of the question of the content of the term “national” in the Convention and in section 36(3) and 36(6) of the Act that section 36(3) was never engaged and that the Tribunal only need to look at the question of nationality in the second limb of the definition of the word “refugee” in order to conclude that it was not necessary to go on and consider the male applicant’s claims for protection in respect of Bosnia/Herzegovina.

Your Honours, a close analysis makes it clear that this Tribunal did not make a finding that the male applicant had two nationalities. In fact, the closest the Tribunal came was to say that it was plausible that the applicant was also a national of Bosnia/Herzegovina. So Article 1A(2) does not arise squarely on the facts. It was not engaged. But even if it were and the Tribunal were considering Article 1A(2) and section 36(3) as both operating at the same time, then it is our submission that nationality, because it is the critical touchstone by which protection obligations are determined, must be assessed and identified by demonstrably clear evidence. The gravity of the consequences of an incorrect finding of nationality are such that, to borrow the language of Justice Dixon, as his Honour then was, in Briginshaw, a finding should not be based on inexact proofs, indefinite testimony or indirect inferences.

HAYNE J: In a case such as the present, how else could the Tribunal have approached this question of nationality? What better proof could it have had?

MR ESTCOURT: The text of the domestic law of the foreign country is the answer that we would make, your Honour, rather than a paraphrased summary by an Australian government department, an assessment made all the more egregious by virtue of the fact that it was not demonstrably clear that the paraphrased summary of the law applied to the applicant in his individual circumstances. It was an artificial - - -

HAYNE J: Is not the premise of that argument a premise that in effect court-like procedures, in particular, court-like evidence, should be adopted as the only means of proof of an issue of this kind?

MR ESTCOURT: Your Honours, we say that our contention is not to invoke a standard of proof for the Minister’s satisfaction of a particular eligibility criterion. We say that it is immanent in that the measure and nature of the Tribunal’s decision-making task that an issue of such gravity as this should be made on direct evidence and on demonstrably clear evidence of the applicability of the foreign law.

CALLINAN J: Does that submission depend entirely upon the facts, as you would put them, and the gravity of the matters calling for a Briginshaw test, or was there some other basis for that submission?

MR ESTCOURT: The gravity is not gravity in the individual circumstances of this case, your Honour, but in every case where nationality is in dispute the consequences of a wrong decision could be a refugee in orbit or the possibility of refoulement.

CALLINAN J: That is another way of saying it is an important matter, is it not?

MR ESTCOURT: Yes, your Honour.

CALLINAN J: That is the sole basis, you say, a Briginshaw test should be applied by the Tribunal in cases of this kind, of which this is one?

MR ESTCOURT: Whether it is a Briginshaw test, your Honour, or whether it is said that similar content is imported into the Tribunal’s task because it has the duty to act judicially and therefore the duty to act reasonably.

CALLINAN J: That is another way of saying it is a breach of natural justice to act on anything less than that.

MR ESTCOURT: Yes, your Honour, in the senses that were identified once again in Applicant S20 by the Chief Justice.

CALLINAN J: But consequences are almost always very serious for an applicant in these matters, certainly on any applicant’s account of them.

MR ESTCOURT: Yes, your Honour.

CALLINAN J: So does that not mean that any important matter would call for a similar standard of proof and there would be so many important matters in every case.

MR ESTCOURT: We say that we do not get drawn that far in making this submission because nationality is at the fulcrum of the determination of this country’s protection obligations in any given case, and we say that - - -

CALLINAN J: No, fear of persecution is a fulcrum as well.

MR ESTCOURT: Yes, it is, your Honour, but it is, with respect, far easier to assess along the lines that - - -

CALLINAN J: No, it is often much harder to assess because one does not know what is going on in particular localities and how widespread things are. I am just putting to you what concerns me. I do not see how you can single this out from a number of other matters.

MR ESTCOURT: There is another reason we advance as to why this issue deserves this Court’s attention, and that is this, that section 36(3) and section 36(6) were inserted into the Migration Act by the Border Protection Amendment legislation and the supplementary explanatory memorandum to the Bill that became those amendments is in your Honours’ papers, and a reading of that discloses that it is apparent that the legislation was intended to reverse a line of authority in the Federal Court that “nationality” meant effective nationality. In other words, the memorandum explains that section 36(3) by erecting a definition, and section 36(6) by saying how you assessed foreign nationality, was to do away with the assessment of effectiveness made in Australia.

The difficulty of course is that section 36(3) and section 36(6) did not put anything back. In other words, it gives no clue as to what the content of the term “national” or “nationality” is. But at the same time, the notion that nationality must be effective appears to have gone out the door.

CALLINAN J: If one were applying the ordinary rule in ordinary litigation, you would have to call a professor of law or a practising lawyer of Macedonia or the other country.

MR ESTCOURT: No, your Honour, that may be necessary in some case, but it is a simple matter to identify the text of the foreign domestic law and it will then appear or not appear, as the case may be, whether there are difficulties about the application of that law in the individual circumstances of the applicant.

CALLINAN J: I do not know if it is as easy as that. We had a case about an Albanian and we were referred to a code and it was not an easy matter to construe that code, or it would not have been an easy matter to construe that code. We were spared that difficulty.

HAYNE J: It is surprising how much baggage one carries about construing written documents.

MR ESTCOURT: But, your Honours, we submit that it is truly troubling that Border Protection Amendment legislation appears to have removed this concept of nationality being effective nationality, that is capable of giving the individual protection, but has replaced it with nothing except an assessment of whether a person is a national. It tells one where to look, but it does not tell one what you are looking for. It says go solely to the foreign law, but it does not tell the decision-maker what it is that ought to be identified. Is it titular nationality? Is it nominal nationality? Is it effective nationality? If it please the Court.

HAYNE J: Yes. We need not trouble you, Mr Horan.

In our opinion an appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave. Special leave to appeal is accordingly refused and must be refused with costs.

AT 2.15 PM THE MATTER WAS CONCLUDED