Applicant B51-2004, Ex parte - Re MIMIA & Ors

[2004] HCATrans 566

[2004] HCATrans 566

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Brisbane  No B51 of 2004

In the matter of -

An application for Writs of Certiorari and Mandamus against MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Respondent

LUKE HARDY MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte –

APPLICANT B51/2004

Applicant/Prosecutor

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 29 NOVEMBER 2004, AT 10.10 AM

(Continued from 22/11/04)

Copyright in the High Court of Australia

__________________

MR S.M. HEGEDUS:   Your Honour, I appear for the applicant.  (instructed by the applicant)

MR P.G. BICKFORD:   Your Honour, I appear for the respondent.  (instructed by Clayton Utz)

HIS HONOUR:   Yes, Mr Hegedus.  I have read your submissions, by the way.

MR HEGEDUS:   Thank you, your Honour.  Would it be appropriate, your Honour, to deal with the notice of motion first in this regard?

HIS HONOUR:   The notice of motion for ‑ ‑ ‑

MR BICKFORD:   That was our notice of motion to dismiss the application for an order nisi, your Honour, but it is probably more appropriate to deal with the application ‑ ‑ ‑

HIS HONOUR:   I think it is.  You go ahead, Mr Hegedus.  What is the error of jurisdiction?  You accept you have to show that, do you not, some error of that kind, jurisdictional error?

MR HEGEDUS:   Yes, your Honour.  The jurisdictional error in this matter is to do with the Tribunal’s approach to credibility and the nature in which they viewed various documentary evidence which was before them at the time.  Now, granted those particular matters were dealt with in the first set of proceedings, the only basis, then, upon which this application can succeed is if your Honour were to recognise that in essence the actions of the respondent and the respondent’s agents in removing a person from the country pursuant to section 198 of the Migration Act were a separate administrative action from that as commenced under section 36 of the Act.  To do so in that particular argument, your Honour would have to distinguish the case of ‑ ‑ ‑

HIS HONOUR:   I do not quite understand the submission, Mr Hegedus.  Are you conceding that you are unable to demonstrate any jurisdictional error on the part of the Tribunal?

MR HEGEDUS:   No, your Honour.

HIS HONOUR:   What is the jurisdictional error on the part of the Tribunal?

MR HEGEDUS:   Simply that the Tribunal member has misconstrued the nature of their duties under the Act.

HIS HONOUR:   All right.  Now, in what respect?

MR HEGEDUS:   In respect of the manner in which they have approached the assessment of the credibility of documents.

HIS HONOUR:   All right.  What was the error in the assessment of the probity or reliability of the documents?

MR HEGEDUS:   Your Honour, the member has placed, as it were, an evidentiary burden upon the credibility of the documentation and of the applicant’s ‑ ‑ ‑

HIS HONOUR:   No, that cannot be right.  A person does not put a credibility burden on an inanimate object, a document.

MR HEGEDUS:   I beg your pardon, your Honour.  In this case my submission is that the member has called into question or specifically termed the documentation to be fraudulent in such a manner whereby there is such a chance that this documentation is in fact authentic that, as such, the member has potentially misconstrued the obligations under the Act to not return or to avail protection to somebody who has more than a remote chance of ‑ ‑ ‑

HIS HONOUR:   Well, Mr Hegedus, that has nothing to do with that last submission.  The document is either a document that was authentic or questionable or fraudulent.  If you go to page 19 of the Tribunal’s reasons, for example – this is only an example – the Tribunal was referring to a document: 

The Tribunal questioned the use of English in this document –

that is the third paragraph –

especially given the Applicant’s indication to the effect that his father was not fluent in English –

and so on.  Then the Tribunal actually gave the applicant an opportunity to deal with the document.  In the second last paragraph: 

The Tribunal put it to the Applicant that this document was not like a will . . . In reply, the Applicant said that this was how wills are made in Bangladesh . . . The Applicant’s explanation for this document was highly unsatisfactory. 

That is a finding of the kind that is made in courts every day.

MR HEGEDUS:   Yes, your Honour.

HIS HONOUR:   The same approach was adopted in relation to the newspaper article, which bore a date, as I understand it, months after the applicant had left the country.  Why do you say that the Tribunal committed some error of jurisdiction in scrutinising the document, finding internal inconsistencies and improbabilities in it and giving the applicant a full opportunity to try to explain them and then rejecting the explanation?  It looks to me like a perfectly orthodox, judicial type of approach.

MR HEGEDUS:   Yes, your Honour.  If I could apologise for not being as specific as I may have been, the documents that I was perhaps more referring to in this regard are, in particular, the medical certificate that related to the applicant’s particular injuries and also the death certificate.

HIS HONOUR:   That was the bomb wound.

MR HEGEDUS:   Yes.  There was one which was a bomb wounding, which related to the applicant himself and affected the applicant’s leg.  There was a death certificate, which was a certificate showing the death of the applicant’s mother and the explanation on the certificate was by bomb explosion.

HIS HONOUR:   Where do I find reference to those?

MR HEGEDUS:   If your Honour could just excuse me while I get my other copy.

HIS HONOUR:   I think it might be page 7.

MR HEGEDUS:   Your Honour, I apologise; I have left my highlighted copy at home.

HIS HONOUR:   That is all right.  Have a look at page 7, Mr Hegedus.  Is that what you are referring to, the third paragraph on that page?

MR HEGEDUS:   Yes, that is correct.  Then that is referred to again in the Tribunal decision specifically at page 34 in the third paragraph, where the Tribunal member says that:

The Tribunal considers the Applicant mother’s “death certificate” to be a self‑serving fraud.

HIS HONOUR:   Well, what is wrong with that?

MR HEGEDUS:   Your Honour, it is upon the reasoning that the Tribunal has employed to make that finding.

HIS HONOUR:   If you go back to the observations that are made at page 7:  

a sheet of paper, no larger than a page out of a pocket diary, with the letterhead –

The city name was misspelt and then: 

A handwritten tick appears above the word death, but the report has no number inserted in it, in spite of the obvious cue to enter a number in the specified space.  Under this heading there is a series of bilingual cues, like “Name”, “Age”, “Date of Death” and “Disease”.  Some of these cues appear to have no place in a document that is supposed to “double”, when required, as a birth certificate. 

These are findings of fact that are open.

MR HEGEDUS:   Your Honour, my submissions in relation to this, if I can start first with the spelling of Dhaka ‑ ‑ ‑

HIS HONOUR:   No, do not do that.  Why is this a jurisdictional error?  You want to review the merits.  You want to have another argument about the interpretation of the document.

MR HEGEDUS:   No, your Honour, I apologise.  The error that I am attempting to illustrate is that in the member’s, I suppose, one might say, rigorous approach to whether or not the documentation is genuine, the member is imposing very high standards of literacy and English‑type understanding on documentation from a third world institution.

HIS HONOUR:   The hospital was established by North Americans, was it not?  Did it not have some North American connection?

MR HEGEDUS:   It has some American connections.  This is a document from 1986.  It is not a recent document.

HIS HONOUR:   The point you are trying to make, Mr Hegedus, you are saying that, first of all, the approach of the Tribunal was rigorous and that it was so rigorous that it constituted a jurisdictional error.

MR HEGEDUS:   Yes, your Honour.

HIS HONOUR:   I understand the submission.

MR HEGEDUS:   If one were to view that rigorous approach across the board to all of the member’s findings in this regard, one would find that it is quite possible that the member’s actions in making these findings have resulted in a situation where there is a chance that these documents are in fact credible and authentic, and in such circumstances where that chance, or, indeed, where it may even be on the balance of probabilities likely that those documents are authentic ‑ ‑ ‑

HIS HONOUR:   No, the finding is that it is highly unlikely – indeed, the finding goes beyond that – that the documents are credible.  You say there is a chance that they are credible.  Well, that chance has been rejected.  You have an affirmative finding against you that the documents are not authentic documents.

MR HEGEDUS:   Yes, your Honour, I understand your point in that regard and especially as it relates to our place here in judicial review.  I could not put it any stronger than as you stated previously.  My submission is that the rigorousness of the member’s approach to all of the documentation is such that it has illustrated a jurisdictional error by imposing such standards upon the receipt of documents that it is likely this is a circumstance in which the member has misconstrued the nature of his fact‑finding obligations as a body set up underneath the Refugee Convention to determine whether or not people have a well‑founded fear of persecution.  That is the extent of my submissions on that point.

HIS HONOUR:   All right.  Well, I have to tell you, Mr Hegedus, I am against you on that and there is really no need, then, for me to consider the other matters that are raised by the respondent, that is, as to the application of the Anshun principle and other matters.  Was there anything else you wanted to say?

MR HEGEDUS:   No, I could not take it any further than that, your Honour.

HIS HONOUR:   Thank you, Mr Hegedus, and thank you for your detailed submissions, too.  They were helpful to me if we had reached that point.

MR HEGEDUS:   Thank you, your Honour.

HIS HONOUR:   I do not need to hear you, Mr Bickford.

This applicant seeks constitutional writs effectively to quash the decision of the Refugee Review Tribunal and to direct that there be a rehearing of his application for review to that Tribunal, and, further, that the responsible officer in the Minister’s Department and the Minister be restrained from causing him to be removed from the country. 

The application is made long out of time.  Indeed, the application is the second attempt by this applicant to invoke the jurisdiction of this Court.  He has previously had his application reviewed, as I have said, by the Refugee Review Tribunal.  He sought a review of that decision by the Federal Court.  The rejection of the review by the Federal Court was followed by an appeal to the Full Court of the Federal Court, which also failed.

The applicant then unsuccessfully applied to this Court for special leave to appeal.  He is a national of Bangladesh who arrived in Australia on 28 May 1999 on a temporary business visa to expire after three months.  On 8 July 1999 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs.  I have already dealt with the ultimate fate of that application.

On this occasion in this Court the applicant seeks to argue that there has been jurisdictional error or other error of law entitling him to the prerogative relief which he seeks.  The error is said to consist in an unduly rigorous examination by the Tribunal of documents upon which he relied in support of his claim and that that unduly rigorous scrutiny of the documents caused him to lose the chance to which he was entitled, of having his application approved.  This submission must be rejected. 

The Tribunal carefully examined the documents in question as it was entitled, indeed, almost certainly obliged, to do.  Two of the particular documents consisted of a purported death certificate and a newspaper article.  It is unnecessary for me to go into the detail of those.  It is sufficient to say that the Tribunal was able to identify internal inconsistencies and manifest improbabilities not only in the form of the documents but also in their content.  These are examples only.  Other documents suffered from the same infirmities. 

It should also be pointed out that the implausibility of the contents of the documents was not the only matter which influenced the Tribunal in making the very strong findings that it did adverse to the credibility of the applicant.  There were numerous other matters which, standing alone, could almost certainly have justified the Tribunal’s decision.  The documents themselves reinforced the conclusions that the Tribunal reached.  In any event, the problem for the applicant is that the factual findings, essentially, relating even as they do to documents, are not to be treated, as I have already intimated, as standing alone; other very strongly corroborative material in support of the Tribunal’s decision existed. 

In the circumstances, therefore, the applicant is unable to show that there has been any error, jurisdictional or otherwise, which would warrant the grant of any of the relief which he seeks, even if he could overcome the other substantial hurdles of delay, failure to comply with the rules relating to the filing of the application, and his failure to take the point which he now seeks to take earlier in the Federal Court.  It is unnecessary for me to reach any views about these matters at all because, as I have said, the application fails at the threshold, that is, because of the applicant’s inability to demonstrate any error of the kind which would lead to the grant of prerogative relief or an injunction.  The application must be dismissed. 

Do you have any other application, Mr Bickford?

MR BICKFORD:   I am instructed to ask for costs, your Honour.

HIS HONOUR:   Is there anything you can say about costs, Mr Hegedus?

MR HEGEDUS:   Your Honour, only in relation to the taxing of costs, which I noticed on the notice of motion we referred to.  All I would say in regard to that is that if the Court were to make any distinction between whether or not taxable costs would be awarded on the basis of the applicant having representation or being unrepresented, without putting myself forward too much, I suppose, I would just indicate to the Court this is a matter in which I have appeared, essentially, with the view towards assisting the Court in some way ‑ ‑ ‑

HIS HONOUR:   You have done that and the Court appreciates people like you doing this, Mr Hegedus.

MR HEGEDUS:   Thank you, your Honour.  So if costs would be assessed on that basis ‑ ‑ ‑

HIS HONOUR:   I do not think it would make any difference to the respondent’s costs.  That is the problem.  I understand you are here on a pro bono basis.  It is good of you to do that.

MR HEGEDUS:   I had just noticed that my learned friend – although I could be wrong – had made some distinction between the taxation of costs on whether or not the applicant was represented.

HIS HONOUR:   Is that right, Mr Bickford?  It does not make any difference, does it?

MR BICKFORD:   I do not think so, your Honour.

HIS HONOUR:   It should make it easier for you ‑ ‑ ‑

MR BICKFORD:   Yes, that is right, but the orders we sought ‑ ‑ ‑

HIS HONOUR:    ‑ ‑ ‑ if he is represented because it assists the Court and helps to refine the argument.

MR BICKFORD:   Yes, quite so, your Honour.  No, we just simply ask for an order that the applicant pay the respondent’s costs of and incidental to the application to be taxed.

HIS HONOUR:   Yes.  The application is dismissed with costs.

MR BICKFORD:   Thank you, your Honour.

HIS HONOUR:   Is there anything further?

MR BICKFORD:   No, your Honour.

HIS HONOUR:   Yes, thank you.

AT 10.35 AM THE MATTER WAS CONCLUDED