Applicant M166-2003 v MIMIA

[2006] HCATrans 412

[2006] HCATrans 412

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M92 of 2005

B e t w e e n -

APPLICANT M166 OF 2003

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 AUGUST 2006, AT 11.51 AM

Copyright in the High Court of Australia

MR J.R. HAMILTON:   May it please the Court, I appear for the applicant.  (instructed by Goz Chambers Lawyers)

MR C.J. HORAN:   If the Court pleases, I appear for the respondent.  (instructed by Clayton Utz Lawyers)

GLEESON CJ:   Yes, Mr Hamilton.

MR HAMILTON:   Your Honour, I take you straight to the application book, and this gets to the nub of the applicant’s claim.  At page 39, the penultimate paragraph, your Honours – this is from the judgment in the Federal Court of Justice North and what he states in that paragraph that is highlighted “(herein referred to as the contentious paragraph)”.  That is the paragraph on which the order nisi was made.  Whatever that is meant to mean, his Honour Justice Weinberg accepted at page 38 and the second paragraph down, “The ground upon which the order nisi was made was as follows”.  It is the applicant’s position that – it is argued that the country information suggests that there is persecution, attacks by PA supporters and members against the UNP.

The case on which the applicant has based it is that – the reason why the applicant lost was that when the Tribunal accessed country information it could not find any reference whatsoever, to use the words of the Tribunal, not a single passage in the papers it had – and it refers to Amnesty International and Asia Watch – no reference to these attacks and, therefore, they cannot be seen as any more than possibly sporadic skirmishes, certainly not a systematic persecution.

Your Honours, what the applicant claims is that the Tribunal made no such investigation when it makes that statement.  It is well accepted that the applicant must make their own case and the Tribunal need not do its own research.  However, when the Tribunal finds against an applicant on the basis of its research, then that research has to be well undertaken, it is submitted.  The information that was before the Tribunal, not counting the reports that it refers to, are covered on these two pages, your Honour, 38 and 39, in front of you.  They all concern various dates, mainly on 39, April 1996, September 1996 articles, October – those are the articles.  The article that actually the applicant relies on is referred to at line 20 on page 39:

‘Anamaduwa doctrine:  Reign of terror, says UNP’, The Sunday Times (Colombo), 7 April 1996 –

and that does cover more than one incident.  But, your Honours, they all refer to events that occurred in the calendar year 1996 and, as I said a few moments ago, the applicant is stating that nothing was looked – at the very least, if it is going to be compared, then it should be looking at country information relevant to the calendar year 1996 and given that the Tribunal’s decision was made on 21 November 1997 that also there should be an attempt to look into the foreseeable future and have a look at something for 1997.

It is commonly agreed at the Federal Magistrates Court and the Full Court and by the respondent that the only Amnesty International information available was that provided by the applicant.  That is referred to, your Honours, in application book 23, line 10, in the second and third paragraph where those representing the applicant on 25 September 1996 under cover of a letter put in an Amnesty International report published in 1996.  As it is put in in September 1996, your Honours, we say that is an indication for a start that it is not covering 1996.  In fact, it covers, it is submitted, basically the year 1995.  So 1996 has not even been looked at. 

Your Honours, this gets very much to the information that the applicant sought to adduce or put into the court in the Federal Court in the affidavit.  I would simply refer to what we say the affidavit says.  We ask that the court look at it. 

The next bit of country information is Asia Watch.  We know Asia Watch was not looked at to compare what happened in 1996 or during 1997 because in the affidavit it states the Tribunal librarian in Melbourne says that Asia Watch was not published after 1993.  It did not appear in 1994.  So that was not looked at by the Tribunal.  Asia Watch was replaced by Human Rights Watch from 1994 on.  Your Honours, it is also known that the Human Rights Watch report for 1996 and 1997 was not looked at by the Tribunal because it makes specific reference to human rights developments in Sri Lanka and it specifically references the conflict and the oppression faced by the UNP supporters by PA authorities and their supporters.

It is basically said, if we are going to claim procedural fairness, lack of natural justice, what have we been denied?  How has the applicant in any way lost out?  The nub of the applicant’s case is that in the order nisi, as it reflects that contentious paragraph, the applicant believed that the Tribunal had looked at information available to it, had looked at these various reports and found nothing.  So the applicant lost the opportunity in the Federal Magistrates Court to bring it into the court not on appeal but just for judicial review.

It was assumed that what the applicant was being told was correct.  It was found subsequently that Asia Watch did not exist, that that the Amnesty report did not cover any of 1996 or nearly all 1995 and Human Rights Watch did cover the relevant periods and was not in any way addressed.  His Honour Justice North says, “I am not going to accept it at the Federal Court level because there appears to be some procedural irregularity”.  This Court has found before that procedural irregularity is not necessarily enough to keep something out when it has been made by an applicant’s solicitor.

His Honour goes on to say at page 42 – at line 15 there is an indented “17”.  That, effectively, is what the applicant submitted in the outline of submissions as to what the affidavit was about.  His Honour Justice North did not look at the affidavit but reading from that paragraph which was, as I said, in the submissions concluded that the report for – the Human Rights report for 1997 came out prior to December and it came out in 1998.  I am sorry, yes, the report for 1998 came out in December 1998 and was for the 1997 year and that the report for 1996 came out in December 1997.  That is not correct, your Honour.  The affidavit material, if it is looked at, shows that the 1998 report, when it came out, that is published prior to Human Rights – it is an international day – was actually published prior to 10 December 1997.  So we only know prior to.  We do not know how far prior but close to.

So the Tribunal was in a position to get that 1997 information if it had made inquiries.  It would have been aware at 21 November this information is nearly coming out.  But, certainly, the information for all of 1996 would have been available because that was published in a report for 1996 but called the 1997 report, but it actually comes out at the end of the 1996 year.  Once again, that is apparent from the material in the affidavit and his Honour at the last paragraph on that page saying that it seems the report for 1997 would not be available and 1998 certainly would not be, was not aware of that because he did not look at the material.  So, your Honours, the applicant certainly claim they have been misled.

The two issues here are, if an applicant’s been misled such that they do not get the information into the judicial review process and then are prevented from doing it at the appeal time in the court, what does fairness dictate?  Should it be considered?  The applicant says very much this information should have been considered.  It certainly was not put into the Magistrates Court but it relied on what was in the decision of the Tribunal and how that was identified in the order nisi. 

So there has been no review document by the – the articles of country information that the Tribunal found did not really amount to a systematised persecution on the basis there was no reference whatsoever in material that the Tribunal had reference to.  It is to be shown that in 1996 which is where most of that material relates to and in 1997 which gives the closest possible picture that information could have been got by the Tribunal, it did not do it.  By simply stating that it was not there, in many ways it has in a way taken a cavalier attitude.  It simply did not look at what

it was required – if it is going to overturn the applicant’s case based on information from international reports, the very least it could have done is compared the reports for the same years, 1996 with 1996, and given that the decision was in November 1997 as late as that.

So the matters that it is submitted that this is a relevant case for the Full High Court is it deals with the 424A question, what should have been told.  I emphasise this as well, your Honours, when this decision of the Tribunal was made that the case for the applicant in this area failed there was no opportunity to comment on the decision.  Even commenting might not have helped.  This is definitely an example where the material should have been given to the applicant.  “Show us these reports where you say nothing has occurred.” 

I mention one other thing, your Honours, the reports also show in the affidavit not just simply certain things have occurred but qualifications.  The Human Rights Watch specifically states that if an issue is not covered in a particular country it does not mean persecution in that area does not occur.  It simply means they have addressed another issue.  I note in Sri Lanka, your Honours, there has been a large issue, even larger than this, going on for many years and that is the simmering, on and off again, civil war with the Tamil guerrillas.  Your Honour, is there anything else I could take your attention to?

GLEESON CJ:   Thank you, Mr Hamilton.  We do not need to hear you, Mr Horan. 

There are insufficient prospects of success of an appeal in this matter to warrant a grant of special leave.  The application is dismissed with costs.

AT 12.05 PM THE MATTER WAS CONCLUDED