Applicant S253-2003 v MIMIA

[2005] HCATrans 675

[2005] HCATrans 675

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S197 of 2005

B e t w e e n -

APPLICANT S253/2003

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 SEPTEMBER 2005, AT 12.27 PM

Copyright in the High Court of Australia

MR L.J. KARP:   Your Honour, I appear for the applicant.  (instructed by the applicant)

MR A. MARKUS:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

HAYNE J:   Yes, Mr Karp.

MR KARP:   Your Honours, I would have to concede that the argument I am about to put has not been articulated, at least in the form I am putting it, to the courts below, nevertheless, it is an argument available and, in my submission, it is worthy of special leave.  Essentially, your Honours, the Refugee Review Tribunal rejected the applicant’s case hinged on one finding.  The finding was that this man could go to Colombo and he would not be persecuted by the Tamil Tigers if he went to Colombo because what he has done would not offend the Tigers so much they would chase him in that city.

HAYNE J:   Am I correct in recalling that this applicant had, in fact, lived in Colombo for a time?

MR KARP:   He had lived in Colombo as a single man for a time, yes.

HAYNE J:   Yes.  Thus, it was not a case where, having lived in only one place and having every connection with but one place, the Tribunal assumed the possibility of moving elsewhere?

MR KARP:   No, it was not one of those cases.  The applicant did say that he had lived in lodgings in Colombo when he was single and that it was a great deal less viable for him to live in Colombo with his family and retain lodgings there. 

The point that I wish to take your Honours to is at page 7 of the application book at about line 35.  This is in the context of the Tribunal accepting that this man had given information about Tamil Tiger movements to the Sri Lankan Army, albeit many years before.  The Tribunal did not accept, of course, that this was confidential information because everybody could see it.  The Tribunal says at page 7:

I put to the Applicant that the Australian Department of Foreign Affairs and Trade had advised that ‘an offence would have to be very serious to warrant the LTTE expending its resources to chase after a person in Colombo’ –

The applicant responded to that, but what the Tribunal did not do, in my submission – this is the crux of my argument – is that it did not reveal to the applicant why or what information it used to decide what was or was not very serious in the eyes of the LTTE.  Presumably the LTTE does not confide in the Tribunal and either the Tribunal used some information to decide that what the applicant has done would not be so serious to attract their attention or it was, in fact, guessing.

Now, either way, in my submission, the Tribunal had to disclose the source of its information or its assessment to the applicant to comply with the requirements of natural justice.

HAYNE J:   What do you make then of what appears at page 8, lines 19 to 21:

I put to her –

that is the applicant’s wife –

the advice of Australian Department of Foreign Affairs and Trade which I had put to her husband.

MR KARP:   The advice was simply that an offence would have to be very serious to warrant the LTTE expending its resources to chase after a person in Colombo.  That does not go any further, your Honour, than what the Tribunal put to the husband and does not answer the issue of what information the Tribunal used, if any, to decide what would or would not be serious in the eyes of the LTTE.

HAYNE J:   Yes.

MR KARP:   Your Honour, any information used by the Tribunal in this sense would have been quite evidently credible to it and relevant to the issue under review and as such information does not appear to have been disclosed to the applicant, at least on the papers before the Court and the papers that I have seen, then that would be a denial of natural justice. 

I concede once more that this was not put in terms before the courts below but as a matter of justice I would submit that it would be a suitable matter for a grant of special leave.  Unless I can further assist your Honours.

HAYNE J:   Thank you, Mr Karp.  We need not trouble you, Mr Markus.

An appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave.  Special leave to appeal is therefore refused and refused with costs.

Adjourn the Court to Tuesday, 6 September at 10.15 in Canberra.

AT 12.34 PM THE MATTER WAS CONCLUDED