Applicant S70 of 2003 v MIMIA & Ors

[2005] HCATrans 303

[2005] HCATrans 303

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S281 of 2004

B e t w e e n -

APPLICANT S70 OF 2003

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

RUTH CHEETHAM MEMBER REFUGEE REVIEW TRIBUNAL

Second Respondent

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Third Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 29 APRIL 2005, AT 11.38 AM

Copyright in the High Court of Australia

__________________

MR A.N. SILVA:   May it please the Court, I appear for the applicant.  (instructed by Silva Solicitors)

MR S.B. LLOYD:   May it please the Court, I appear for the Minister, the first respondent.  (instructed by Sparke Helmore)

GLEESON CJ:   There is a certificate from the Deputy Registrar that she has been informed by the solicitor for the second and third respondents that the second and third respondents submit to the orders of the Court save as to costs.  Yes, Mr Silva.

MR SILVA:   Your Honour, because of the time restriction, I would first deal with the ground 2.5 and 2.6.  Ground 2.5 raises the issue of the consistency between section 420(2) and the regulation 866.211.  We will be endeavouring to make submission to the fact that 866.211 should be held to be invalid because of the operation of section 420(2).  Section 420(2) provides that the RRT in reviewing a decision:

(a)      is not bound by technicalities, legal forms or rules of evidence; and
(b)      must act according to substantial justice and the merits of the case.

In the High Court case of Eshetu all the seven Judges sat on the case and it looked at the interrelationship between section 420 and section 476 as it existed at the time.  Almost all of the Judges referred to the decision of Justice Lindgren in the case of Sun and held that section 420 does not prescribe a procedure to be followed by the Tribunal.  In that case Justice Callinan referred to Justice Lindgren’s comments about the operation of section 420(2)(b) in a general sense and in my authorities I have provided relevant portions from each of the Judges and, more specifically, paragraph 178.

GLEESON CJ:   The grounds of appeal to the Full Court of the Federal Court appear on pages 35 and 36 of the application book, is that right?

MR SILVA:   Yes, your Honour.

GLEESON CJ:   Which of those grounds does this point go to?

MR SILVA:   This will go to grounds (d) and (e), your Honours.

GLEESON CJ:   (d) and (e).

MR SILVA:   The one that I was dealing with is with (d) and I will be making submissions further about (e).

GLEESON CJ:   And where do I find Justice Hely dealing with that?

MR SILVA:   Your Honour, you are asking about the notice of appeal?

GLEESON CJ:   No, where do I find the primary judge, against whom you appealed, dealing with the matter that you are now on?

MR SILVA:   It is on page 31.

GLEESON CJ:   Thank you.  It is just that you are trying to persuade us that Justice Hely made a mistake and I would like to see the mistake.

CALLINAN J:   That is the Muin and Lie point, is it not, on 31?  It is not the point that you have been addressing us on.

GLEESON CJ:   Well, if you cannot find it in Justice Hely’s judgment, where do you find the point being dealt with by the Full Court?

MR SILVA:   It is on page 52, your Honour.

GLEESON CJ:   Thank you.

MR SILVA:   It starts in the middle of the page. 

GLEESON CJ:   What has that to do with the regulation that you are arguing is invalid?

MR SILVA:   Your Honour, it is our submission that the Full Court stated that there was no obligation on the part of the Tribunal to deal with the daughter’s application in her own right.

GLEESON CJ:   But what is the connection between that and the regulation?

MR SILVA:   The connection is that the regulation 866.211 says that an applicant should either choose to apply in his or her own right or must apply as a dependant of another applicant.  So, when someone comes to Australia, he or she, intending to apply as a refugee, is faced with a dilemma as to whether they should apply in their own right or as a dependant.  By forcing them to chose between those two, the applicant is not given the opportunity to present his case, part of the case.  If you look at the decisions in cases like Munkayilar and Mijoljevic it was held that if the de facto husband did not apply as a dependant, though the de facto wife was held to be a refugee, the husband cannot be a refugee.

GLEESON CJ:   Was the alleged invalidity of this regulation argued in the Federal Court?

MR SILVA:   The Full Federal Court, your Honour.

GLEESON CJ:   It was argued, was it?

MR SILVA:   Yes, indeed.

GLEESON CJ:   And where do we find the Full Federal Court dealing with it?  Because it does not seem to have been a ground of appeal unless you say (e) on 36, is it?  But it does not mention the regulation.

MR SILVA:   Your Honour, (d) deals with:

His Honour erred in holding that the RRT was under no obligation to deal with any specific claims made by the daughter.

CALLINAN J:   Well, let us assume that you are right about that for present purposes, the special position of the daughter, was dealt with, was it not, at paragraph 33 on page 52?

MR SILVA:   Your Honour, the way the daughter’s case was dealt with is this.  The Tribunal said, I have no information that would tell me that the government of Fiji would refuse to provide medical assistance to anyone on the basis of race.  Our case is that this is a very unique situation of the girl.  This girl had been traumatised and continued to be traumatised because of the racial violence.  So by saying that I have no evidence that any person asking of medical assistance will be denied, we are saying this particular situation of the applicant child was not looked at.

CALLINAN J:   Well, that is not right, if you look at paragraph 33, because the Full Court said:

it might be expected that the symptoms of that disorder would be exacerbated if she returned to Fiji.  The Tribunal concluded that there was no evidence that the Fijian government declined ‘for a Convention reason’ –

race reason –

to provide adequate medical treatment.

Now, it seems to me to be a finding of fact against you, no matter how the case on behalf of the daughter was presented.

MR SILVA:   Your Honour, the finding of fact is based on the question asked by the Tribunal.  The Tribunal ought to ask, what will happen with this particular child who has been traumatised and continues to be traumatised?  What will happen to this particular child if she goes back to Fiji?  Would she be provided with medical assistance because she says, “I am afraid when I see native Fijians, I am afraid”?  If the child is sent back to Fiji, she has to ask the very same people for medical assistance.  

So, therefore, the question the Tribunal should ask is not whether any citizen would be denied medical assistance, but whether this particular child with her background would be denied medical assistance.  And that question was not asked, because the unusual thing about this child is, this child is traumatised and when she sees native Fijians she is afraid.  But if she is sent back, she is going to ask the very same people of whom she is afraid for medical assistance.  Would they provide the medical assistance or not should have been looked at.  As to the first part, your Honour, section 420 says that the applicant’s claim should be looked at, not the legal form, how the applicant’s case is presented.  What regulation 866.211 does is force an applicant to choose to present a case in a particular way, otherwise they lose out.

GLEESON CJ:   Where in your written outline of argument do we find it said that regulation 866 is invalid?

MR SILVA:   It is page 73, your Honour.

GLEESON CJ:   Yes, I have been looking at that.

MR SILVA:   In the middle of the page it says it was submitted to the Full Court that Migration regulation 866 should not prevent the Tribunal considering.

CALLINAN J:   I have to say, Mr Silva, at this stage, that I cannot see how you can possibly make out that the daughter’s claims were not dealt with.  I understand your argument that they were not dealt with in a way in which you would have liked, but they were dealt with and it seems to me that they would have been dealt with that way no matter whether she was a separate applicant or an applicant on the coattails, as it were, of her parents.  The result would still have been the same.

MR SILVA:   Your Honour, the way the child’s application should have been dealt with is ‑ ‑ ‑

CALLINAN J:   Well, her case was that her condition would be exacerbated on exposure to indigenous Fijians.  It can be shortly stated as that, can it not?

MR SILVA:   Yes.

CALLINAN J:   And that has been dealt with in paragraph 33 of the Full Court’s judgment.

MR SILVA:   Your Honour, the Tribunal decided that this child would be provided with medical assistance.  The Full Court said this child would be provided with medical assistance.  Then the question to ask is whether this particular child would be provided with medical assistance – not any citizen of Fiji will be provided, but this particular child with her…..because she has been traumatised and she is not another great citizen, she has her particular background and she is afraid of native Fijians and if she goes back and says, I am here because I am afraid of native Fijians, I am fearful of them but I am asking the very same people to give me the medical assistance ‑ ‑ ‑

CALLINAN J:   I assume that there are some doctors of Indian descent in Fiji?

MR SILVA:   Yes, your Honour, the applicant child will go back to Fiji, will go to the medical services and try to get medical assistance.  She cannot go there and say, look, I do not want to get medical assistance from this native Fijian doctor, I want an Indian doctor because of the racial conflict, because of the history of the coup and all the racial background to that.  If she says that, will the medical board or will the hospital respond to her?  Or she will say, she is asking us for the medical support but she does not want us to provide it to her. 

So, therefore, the question that the Tribunal should have asked is not whether any person can access medical support, but whether this particular child with her background can access medical support or she will be denied or there will be indifference on the part of the medical authorities.  That is how the claim should have dealt with, not in a general way saying that I

have no information that anyone will be denied.  The way it was dealt with, her claim was not dealt with in substance. 

As to the first part of it, your Honour, by forcing an applicant to choose to formulate their claim in a particular way, the regulation is forcing them to give up part of the claim because if you consider a husband and wife coming to Australia, if each of them has a claim, they have a dilemma on their hands.  Are they going to apply on their own?  Are they going to apply as dependants?  They have no choice.  They cannot apply on both counts.  What should matter is what are the facts, not how you choose to formulate your refugee claim because if you choose to, like in Munkayilar, in the other cases, if you choose, unfortunately, to go on your own and if it is denied, you cannot claim you are a dependant of a refugee such as a refugee and you cannot apply again because section 48 will stop that. 

I will just make a short submission on ground 2.2, your Honour, how the way the state protection issue was dealt with and the Tribunal used the decision in Kandasamy to say that this applicant did not access state protection but Kandasamy itself – I have provided the relevant copies – Kandasamy does not deal with property damage.  It deals with assault and threat.  So how could you use that, firstly?  And also, in this case, the applicant complained to police on several occasions about violence.  Nothing was done.  How can you forget that and talk about just the property to the applicant?  What is important is life.  So if you choose to go to police and complain and police do not attend to it, Tribunal cannot say, “But you did not go and claim your property, therefore, you did not access state protection”.  That is wrong.  Seeing the light is on, your Honour, unless you have any questions I will ‑ ‑ ‑

GLEESON CJ:   Thank you, Mr Silva.  We do not need to hear you, Mr Lloyd.

We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter and the application is dismissed with costs.

The Court will now adjourn until 10.15 on Tuesday, 17 May in Canberra.

AT 12.17 PM THE MATTER WAS CONCLUDED