Applicants M166-2002 v MIMIA

[2003] HCATrans 527

[2003] HCATrans 527

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M166 of 2002

B e t w e e n -

APPLICANTS M166/2002

Applicants

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 DECEMBER 2003, AT 12.26 PM

Copyright in the High Court of Australia

MR A.F.L. KROHN:   May it please the Court, I appear for the applicants.  (instructed by Gandhi & Associates)

MS C.Y. BEATON-WELLS:   May it please the Court, I appear for the respondent.  (instructed by Blake Dawson Waldron)

GLEESON CJ:   Yes, go on, Mr Krohn.

MR KROHN:   Your Honours, I seek to rely on the written submissions which have been filed, including the supplementary submissions of the applicant.  I rely upon those, and then beyond that I intend to make just four brief points to your Honours; two relating to the boundaries of jurisdictional error by failing to take account of relevant material considerations, one portmanteau point about the illogicality or unreasonableness, and one brief point about whether the judgment of the Full Court below sufficiently attended with doubt.

In relation to the boundaries of jurisdictional error by failing to take account of relevant material or considerations, this case raises, in my submission, two aspects of what may constitute such jurisdictional error.  Consistently from the beginning of this proceeding the complaint that was made was that the Refugee Review Tribunal fell into error because it failed to advert to and to treat as independently or potentially independently corroborative an opinion by a psychologist that the applicant’s symptoms and manifestations before the psychologist were highly and specifically consistent with a history of trauma.  It was also expressed that there was a high consistency with the history of trauma and imprisonment.  The Tribunal ‑ ‑ ‑

HAYNE J:   What are we to do then about what is said at application book 59, paragraph 39 of the reasons?  I understand you controvert it, but is it not plain from the citation from what the Tribunal said that they considered the evidence?  What they may not have done is interpret it or give it the weight or give it the significance which you seek to say it should have had.

MR KROHN:   Your Honour, with respect, their Honours in the majority reject the submission that the Tribunal failed to consider the opinion, but they have not dealt with the submission, in my respectful submission, that the Tribunal failed to advert to the particular character of that evidence.  If your Honours turn to the application book in the judgment of his Honour Justice Heerey at page 34, paragraph 15, your Honours will see that from the beginning this case was put on the basis that – and his Honour quoted:

The “critical issue of the consistency between the (first) applicant’s account and her symptomatic presentation” was not addressed by the Tribunal.

That refers back to what the Tribunal said at application book 13, paragraph 385.  That is where the Tribunal refers simply to:

The reports from medical practitioners and other health professionals represent a reflection of the applicant’s own recounting of her story -

The Tribunal was prepared to accept that the applicant may have been subjected to rape at some point in some location but rejected that it occurred within detention, yet the report of the psychologist referred to a high level of consistency between a history of rape and imprisonment, on the one hand, and the current presentation.

The two points, your Honours, about the boundaries of relevant considerations which I wish to focus on this morning were first that the fact that what is complained about is part of the fact‑finding process of the Tribunal should not be taken as foreclosing the question whether there is jurisdictional error such as to allow relief.  Yet in the Full Court below, while his Honour Justice Drummond was prepared to consider the possibility that the Tribunal had not taken account of this consistency, his Honour was of the view that that is simply a complaint about the fact finding of the Tribunal.

In relation to that, I have referred in the submissions to a recent judgment of his Honour Justice Finkelstein, but I can trace it back to what his Honour Justice Heerey at first instance here noted about what the High Court itself did in Yusuf, adverting in the context of Yusuf to a failure to make a finding perhaps about a past claim of persecution, a factual matter.  That failure may reflect jurisdictional error.  It is submitted here, your Honours, that the view of his Honour Justice Drummond about the error of the Tribunal being not available for review because it was a matter of the fact‑finding process, that that is in error.  It is submitted that the paragraph to which your Honour Justice Hayne took me at the beginning should not be taken as ending the matter because in the context of this litigation and application the claim that was put from the very beginning was not failure to have regard to the reports but failure to have regard to that aspect of consistency.

That is the first point about the relevance, your Honours.  The second about relevant considerations and jurisdictional error which I wish to make is that in the present case a decision is committed to the Tribunal standing in the shoes of the Minister to arrive at a decision about whether the Tribunal is satisfied that certain criteria for the grant of a visa have been made out and, because that involves a focus on the satisfaction of the Tribunal, the Tribunal’s own processes of thought, that therefore, especially in a case where the decision turns upon a matter of credit, as it did here, then, in my submission, it is particularly a relevant matter that the Tribunal is required to take account of something which is offered as being potentially independent corroboration of the claim.

Now, their Honours Justices Cooper and Finkelstein in the Full Court below focused upon a discussion of whether and how far expert evidence about veracity was admissible.  The applicants have never sought to put the argument on that basis.  But if what is presented to the Tribunal is evidence which goes to an independent source of corroboration, namely that now there is an expert who says, “This woman, according to my professional expertise, presents as a woman highly consistent with what I would expect of a woman who’s been raped and imprisoned” but the Tribunal refers to that as simply, “Well, that’s a reflection of recounting the application’s claims”, then, because the Act itself refers to satisfaction of the Minister, and the Tribunal standing in the shoes of the Minister, that reference to satisfaction makes a focus upon potentially independent corroboration a relevant matter within the statutory scheme and therefore referring back to the fairly trite and established principles of Peko‑Wallsend and so on.

That was my second point, your Honours, in relation to the boundaries of relevant considerations which, in my submission, this application raises.  The supplementary submission adverting to the issues of illogicality or unreasonableness following S20 is put before your Honours simply on this basis.  The two aspects of relevant considerations to which I have just directed your Honours’ attention are also requirements upon the Tribunal such that if the Tribunal has not gone about the job in that way, if the Tribunal, as here, has said, “Look, I’ve got a 10-page single-spaced typewritten report” - which is reproduced at the beginning of the bundle of documents that your Honours have – “I’ve got that.  It concludes with an opinion that here is a high level of consistency, but I’m just going to treat that as if it’s just telling somebody else, as it were, over the back fence what happened to me”, that that does demonstrate, in the context of a credit‑based decision of the Tribunal, such a level of unreasonableness or illogicality that it cannot be said that the Tribunal acted within jurisdiction.

I take my learned friend’s submissions that this argument was not previously put below.  In a sense it is perhaps not a clearly distinct argument from what is put on the basis of relevant considerations.  If it were, the applicant might have a very high hurdle indeed to seek leave to advance something not previously put, but the intimacy of the connection of the illogicality complaint with the relevant considerations complaint and the fact that the judgment of the High Court in S20 was given only in the course of this year overturning previously contrary Full Court authority of the

Federal Court, in my submission, is such that the Court should grant leave to the applicant to direct arguments on appeal to those points also.  They are not to be seen as, as it were, a completely different matter coming out of the blue.  They are another way of explicating the jurisdictional error which from the beginning it was said the Tribunal had committed.

Your Honours, my third point was to do with why the applicant said the decision below was attended with error.  I have covered that in my other submissions so far.  As for the matters of public importance to justify the grant of special leave, they can be reduced to two, your Honours.  The first is the general and frequent importance of the Refugee Review Tribunal, not to mention other Tribunals, applying itself correctly to what is made relevant and necessary as an incident of jurisdiction.  The other is the general importance of there being clarity about the boundaries of jurisdictional error.  This case has demonstrated as something relatively recent that there is still judicial diversity about how far errors of fact finding may be perceived as in some way able to be construed as jurisdictional error.  The focus in his Honour Justice Drummond’s judgment upon the fact‑finding aspect of the Tribunal’s decision, in my submission, indicates that there is still a focusing on the distinction between matters of fact and matters of law contrary to the observations of this Court, for example in S20.

For those reasons, your Honours, in my submission, the application should be allowed.  Unless your Honours desire me to elaborate any matters, I rely upon those submissions and the written submissions filed.

GLEESON CJ:   Thank you.  We do not need to hear you, Ms Beaton‑Wells.

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

AT 12.39 PM THE MATTER WAS CONCLUDED