Applicant M190-2003 v MIMIA & Anor

[2006] HCATrans 631

[2006] HCATrans 631

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M90 of 2006

B e t w e e n -

APPLICANT M190/2003

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 NOVEMBER 2006, AT 12.09 PM

Copyright in the High Court of Australia

MR T.A. FERNANDEZ:   If the Court pleases, I appear for the applicant.  (instructed by T.A. Fernandez)

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

HAYNE J:   Yes, there is a submitting appearance for the second respondent, the Tribunal.  Yes, Mr Fernandez.

MR FERNANDEZ:   May it please the Court, there is perhaps one issue that your Honours will have to look at which will be the subject of the special leave application and that is the question of the satisfaction of the decision‑maker, but before I go to that, your Honour, may I ask your Honour to look at page 36 of the application book for a minute to put my submission in context.  If I can just take it up from line 21:

In submissions in support of the appeal, the solicitor for the appellant focused on a finding by the Tribunal to the effect that there is no evidence that Muslims living in Colombo are, or would be, targets of the LTTE.  That finding led the Tribunal to conclude that, as an individual member of a particular ethnic religious group, the appellant did not face a real chance of persecution.  That was said to be a finding in the absence of evidence.  However, the “no evidence” ground of review, to the extent that it is available at all in applications under the Migration Act 1958 (Cth) (“the Act”), can only vitiate an affirmative finding of fact. In the present case, all that the Tribunal said was that it was not satisfied that the appellant had a well‑founded fear of persecution. That was not an affirmative finding of fact.

Now, I just ask your Honour to look at the earlier part of the application book that incorporates the decision of the Tribunal.  That your Honour will get on page 13 of the application book.  If I can take it up from line 20:

He himself has advanced no evidence that he has been a member of any anti‑LTTE organisation.  He has given evidence that he has lived and wishes to live a quiet life.  There is no evidence that Muslims in Colombo are or would be the targets of the LTTE.  That is, as an individual and as a member of a particular ethnic/religious group –

this is important –

the Tribunal finds that he does not face a real chance of persecution.

The Tribunal finds that the Applicant would receive the necessary degree of protection required to dismiss his claim to need to seek protection in another country.  The government of Sri Lanka is a functioning one –

Now, my submission to the learned judge was simply this.  It was not a degree of satisfaction that the Tribunal arrived at.  They were specific findings and those findings by the Tribunal were not supported by evidence.  That takes me to my next point, your Honour, as far as the satisfaction and, if I can put the issue this way for your Honour’s consideration, can the Tribunal be satisfied in the absence of evidence or in the absence of an affirmative state of satisfaction and yet not commit a jurisdictional error?  Now, for that, your Honour, I just ‑ ‑ ‑

HAYNE J:   Sorry, would you put that again?  I missed that.  Put the proposition again.

MR FERNANDEZ:   Yes. 

HAYNE J:   Can the Tribunal?

MR FERNANDEZ:   Yes.  Can the Tribunal be satisfied in the absence of an affirmative state of satisfaction and yet commit no jurisdictional error?  My submission to the Court is this.  There are various sections of the Migration Act that run counter to this and, in my respectful submission, the trial judge and the Tribunal got it wrong by classifying the findings of the Tribunal as a state of satisfaction. 

Now, I will just trouble your Honour with a couple of sections of the Migration Act. The first section would be section 65 of the Migration Act, and your Honours are aware of the section, and what is says is this:

After considering a valid application for a visa, the Minister:

(a)      if satisfied that:

(i)     the health criteria for it (if any) have been satisfied –

Your Honour will see the double satisfaction there.  My submission to your Honour, if I can put it this way, is simply this.  My submission to the Court, if I can put it this way, is this.  If a visa applicant does not complete his medical examination or the medical checks, in the absence of that evidence, can the Tribunal be satisfied or the decision‑maker be satisfied that a criteria for the visa has been applied, has been completed? 

It is not only on section 65. Your Honour will see there are several other sections of the Migration Act that deal with this and I will take your Honour to section 430. I think that is a decision of the High Court as well in which your Honour has been a part of the Full Court of the High Court in Yusuf. I will come to that in a moment, but if I can just take your Honour to section 430 of the Act. Section 430, as the Court is aware, is that:

Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)      sets out the decision of the Tribunal on the review; and

(b)      sets out the reasons for the decision; and

(c)      sets out the findings on any material questions of fact –

In other words, in my respectful submission, it is something more than a mere state of satisfaction. The Tribunal has to consider the evidence, look at the evidence, come to a decision and then explain why it has come to that decision. Section 430 is there. Then your Honour is aware of section 424A. That has received a lot of importance in respect of a confirmation that the decision in Al Shamry was right and a recent decision of the High Court also in SAAP which says that any information that is adverse to an applicant must be put to the applicant in writing.  If your Honour looks at 424(1) for a moment:

In conducting the review, the Tribunal may get any information that it considers relevant.  However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

All these sections, in my respectful submission to the Court, point to a situation where all these requirements that the Tribunal has to comply with is inbuilt or leads up to the state of satisfaction.  It is not as though the state of satisfaction stands there by itself.  These are requirements that the Tribunal has to comply with before it makes its decision. 

The last point that I would draw your Honours’ attention to perhaps is the Act as it stood prior to 2001 where we had the old Part 8, your Honours. Perhaps the Court is aware of that. We had the applications under section 476 of the Migration Act. That is section 65, in the form in which it is now, was there when section 476 was very much in operation in relation to judicial review by the courts. Nothing has changed in respect of section 65, that is in relation to satisfaction, but taking section 476 as it stood at that time – it has now been repealed – your Honour will see that

there are several criteria for the Tribunal to comply with and part of the criteria your Honour will find in the old section 476(1)(g), which says:

that there was no evidence or other material to justify the making of the decision.

So, in other words, in my respectful submission to the Court, it is not the question of the absence of an affirmative state of satisfaction, but it is a question of the Tribunal looking at the evidence, coming to its decision, referring to the evidence and then giving its finding.  Now, the importance is probably related in this way and that is, if, as the learned judge says, it is only a state of satisfaction, that all that is required of the Tribunal is a state of satisfaction, then my respectful submission to the Court would be, what about the other sections of the Migration Act that passed a duty on the Tribunal in the way in which it performs its functions? 

The courts have repeatedly held – and I think I have handed up that decision to the Court as well.  That is the case of Yusuf.  I think part of your Honour’s observations will be in paragraph 35 and beyond in Yusuf where the Court has looked at the construction of section 430 and came to the conclusion that it is imperative that the Tribunal in the discharge of its functions looks at the operation of section 430 in relation to the evidence and to its finding. That would be my respectful submission to your Honour, unless perhaps the Court has any questions for me.

HAYNE J:   Thank you very much, Mr Fernandez.  We need not trouble you, Mr Horan.

An appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave to appeal in the matter.  Special leave accordingly is refused.  It must be refused with costs.

The Court will adjourn to reconstitute.

AT 12.23 PM THE MATTER WAS CONCLUDED