AAR15 v Minister for Immigration and Border Protection

[2016] HCATrans 196

[2016] HCATrans 196

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P7 of 2016

B e t w e e n -

AAR15

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

Application for special leave to appeal

KIEFEL J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 2 SEPTEMBER 2016, AT 10.28 AM

Copyright in the High Court of Australia

MR G.M.G. McINTYRE, SC:   If it please the Court, I appear for the applicant in matter.  (instructed by Granich Partners)

MR R.J.S. FRENCH:   If it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

KIEFEL J:   Yes, thank you, Mr McIntyre.

MR McINTYRE:   Your Honours, the Commonwealth in its role as model litigant has pointed out to us that while the grounds as foreshadowed in the draft notice of appeal deal with the issue of what we say was the speculative approach which the appeal court judge took, the real issue which, of course, was being canvassed in the courts below was the question of the reasonableness of the decision of the Tribunal.  That second aspect does not appear as a specific ground as the documents are currently drafted but it is correct that that is a matter which ought to be at issue in this matter and if granted leave ‑ ‑ ‑

KIEFEL J:   How would you reframe it then, Mr McIntyre?

MR McINTYRE:   We would add a ground which said that the appeal judge erred in concluding that it was not unreasonable for the Tribunal to prefer evidence from 2006 in preference to evidence from 2011 and for the primary judge to conclude that that process was not unreasonable.

KIEFEL J:   The focus of the grounds of appeal is on the appeal judge speculation.

MR McINTYRE:   Yes, your Honour.

KIEFEL J:   But the reason that his Honour was driven to speculate was the lack of reasons, was it not?

MR McINTYRE:   That is right, your Honour, so we ‑ ‑ ‑

KIEFEL J:   Is not that the real focus?

MR McINTYRE:   Well, your Honour is probably right.  Certainly Judge Street was found by his Honour Justice North not to have provided sufficient reasons for us to understand what the nature of the decision was.

NETTLE J:   Well, he does not provide any reason, does he, for preferring the 2011 over 2006.

MR McINTYRE:   That is right, and that is what Justice North found, so perhaps your Honours ‑ ‑ ‑

NETTLE J:   It is not just inadequate. There is no reason.

MR McINTYRE:   That is right, and perhaps what your Honours are pointing to is that perhaps we need yet another ground; that is, that there were no reasons provided by the primary judge and so we would seek any necessary leave to add that ground as well.

In the relief we are seeking, ultimately we are seeking a remittal of the matter back to the Tribunal to make a decision in accordance with law.  In order to get to that, we need to go through a number of steps.  Firstly, as we say, Justice North speculated as to the reasons.  Judge Street provided no reasons as to his decision and we then say that the Tribunal itself ultimately acted unreasonably in preferring one set of information which was more recent than a set of information which was more historic.

Justice North was correct, we say, in identifying that we had probably not helped by referring to information of generalised violence in the Democratic Republic of the Congo.  So, one of the things which I think Justice North did clarify is that it is not a matter of dealing with what was in paragraphs 53 through to 58 which deal with generalised violence; what he did which improved on what Justice Street had done was to actually try and identify what the Tribunal was dealing with and to look at the way that they had separated the information on the relationship between the Kasai and the Katanga tribe, which starts at page 13 of the application book and goes through paragraphs 46 to 52, and then to deal separately with the information on generalised violence in the Democratic Republic of the Congo which runs, as I said, from page 14 or paragraphs 53 through to 64.

But what Justice North did not do was to focus on what is in paragraph 52, which is really the kernel of our case; that is, that there was a report in 2011 by the Minority Rights Group International which:

listed the Luba as a minority group under threat in the DRC, meaning that they are considered to be at future risk of “genocide, mass killing or other systematic violent repression”.

Now, the importance of that conclusion is that it does focus on the ethnic violence and it also appropriately makes a predictive assessment, which is precisely the kind of information which the Tribunal and the later court considering the matter ought to have regarded as crucial to the decision as to whether or not this person was at risk of persecution.  That alone, we say, was a piece of information which could not be ignored, apparently was ignored, and no real reason was provided as to why it was ignored.

That is really the essence of our case.  Unless your Honours wish to hear from me further, I do not think I can elaborate on it.

KIEFEL J:   Thank you, Mr McIntyre.  Yes, it is a narrow point.  Yes, Mr French.

MR FRENCH:   Your Honours, we say the Tribunal did not make a jurisdictional error in preferring one piece of country information over another and that all that it was required to do was to consider and evaluate all the country information, but it lay within the Tribunal’s purview to prefer one piece of country information over another, even if ‑ ‑ ‑

KIEFEL J:   But it has to explain, does it not, why it chose particular pieces of country information over others ‑ ‑ ‑

MR FRENCH:   Yes.

KIEFEL J:   ‑ ‑ ‑ and particularly later country information.  It does not on the face of it seem self‑explanatory why it took the course that it did.

MR FRENCH:   Certainly, your Honour, it did not clearly explain why it preferred the earlier information over the other.  As we pointed out in outline, it could perhaps be gleaned from the Tribunal’s reasons why they did.  At paragraph 52 of the Tribunal’s reasons it proceeds with the words:

Little additional information was located regarding the current situation for Kasaian Luba living in Katanga.

Then, in the next sentence, goes on to say:

In 2011, Minority Rights Group International (MRG) listed the Luba as a minority group under threat in the DRC –

So, the DRC being a wider geographical area than the Katanga area.  It may have been that difference in geographical specificity that accounted for the preference.  But, as I said before, it has not been clearly articulated so we cannot put it any higher than that, but perhaps that is why and that can be gleaned from the reasons.

KIEFEL J:   I suppose the other feature then is the centrality of that reasoning to its decision.

MR FRENCH:   Yes.  We do not assert that it was not – that the ultimate finding that there was no immediate risk to the appellant was not central to its finding, it was.  One matter which – there are Full Court of the Federal Court authorities in support of the proposition that the Tribunal may

prefer one piece of country information over another as part of its fact‑finding processes.  We have not included them in our authorities because the grounds have shifted somewhat today with the amending of the grounds.

In one case, in particular, the QAAB v Minister for Immigration and Multicultural and Indigenous Affairs, the Court, after explicitly preferring earlier country information over more recent country information, went on to approve comments of the Full Court in the case of NAHI v Minister for Immigration and Multicultural and Indigenous Affairs to the effect that a tribunal does not commit jurisdictional error when it prefers one body of country information over another.  However, I should say that in that case, it was clearly articulated in the Tribunal reasons why they preferred the earlier country information and that was because it was more specific to the question at hand.  I have nothing further.

KIEFEL J:   Thank you, Mr French.  Is there anything in reply, Mr McIntyre?

MR McINTYRE:   Just this, your Honours.  We do not cavil with the idea that the Tribunal is entitled to prefer one body of evidence over the other but it really needs to have a reason for doing that.  We do not know what the reason was.

KIEFEL J:   There will be a grant of special leave in this matter.  Will the matter take more than half a day?

MR McINTYRE:   No, your Honour. 

KIEFEL J:   Half a day, then.  Mr McIntyre, you will need to amend your notice of appeal to reflect the discussion today, both in your foreshadowed amendment and to focus on the Tribunal’s reasons.

MR McINTYRE:   Yes, thank you, your Honour.

KIEFEL J:   Yes, yes.  Thank you.

AT 10.40 AM THE MATTER WAS CONCLUDED