Applicants S168-2002 v MIMA

[2002] HCATrans 444

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S168 of 2002

B e t w e e n -

APPLICANTS S168/2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 NOVEMBER 2002, AT 2.51 PM

Copyright in the High Court of Australia

MR J.M. PATEL:   May it please the Court, I appear for the applicant.  (instructed by the applicant) 

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

GUMMOW J:   Yes, Mr Patel. 

MR PATEL:   May it please the Court.  I would like to apologise firstly, because I was briefed in this matter belatedly on late Friday afternoon and this ‑ ‑ ‑

GUMMOW J:   Well, that is plenty of time. 

MR PATEL:   Yes.  In this matter, the submissions were not prepared by me, but I had the opportunity to peruse the documents that are before you.  There is one particular point I would like to take up at an early stage, and that is, I would like to seek leave of the Court to tender a document which should have been included in the bundle of documents.  These are the submissions of the appellant and respondent – the written submissions that were filed in relation to the appeal to the Full Court – and since we rely mostly on those submissions, it would be of some use and assistance to the Court if I tender those. 

GUMMOW J:   Yes. 

MR PATEL:   I have four copies, your Honours. 

GUMMOW J:   We will take a minute to read it.  These are the submissions to the Federal Court? 

MR PATEL:   Yes, Full Federal Court. 

GUMMOW J:   Full Federal Court, by each side. 

MR PATEL:   Yes.  Your Honours, these submissions advance arguments that can usefully be put to this Court, and I propose to adopt what has been said by the counsel for the appellant in his submissions to the Full Court.  So I do not propose to go through each and every ground or submissions that have been orally put to the court earlier, and again to this Court.  It would be useful for me to just concentrate on one or two aspects of the matters that could usefully be advanced and which do not appear to have been taken up in the written submissions.  So if your Honours are ready, I can perhaps take you to the ‑ ‑ ‑

GUMMOW J:   Yes. 

MR PATEL:   I would like to commence with application book at page 28 and 29, particularly commencing at line 30, that is written in ink: 

RRT was not satisfied that the applicants have a well‑founded fear of persecution for reason of their Tamil ethnicity or for reason of a pro‑LTTE opinion imputed to them by the authorities or for reasons of an anti‑LTTE opinion imputed to them by the LTTE, or for any other Convention reason. 

GUMMOW J:   Now, are you saying that there are some grounds that you want to put here that were not put in the Full Court? 

MR PATEL:   No, I am just trying to take up one particular point.  It has already been put in but, in order to assist the Court, I am trying to provide the context in which that particular submission might be looked at.  So it would be useful for me to refer to the particular passages in the judgment which we can submit show an error that ought to be considered by this ‑ ‑ ‑

GUMMOW J:   The real obstacle and the bar for your clients appears to be the fact finding – the results of the fact finding as to well‑founded fear. 

MR PATEL:   The argument that we propose to advance is that the fact finding was not as material.  As far as their credibility is concerned, the Tribunal summarised the position that the applicant had experienced some sort of difficulties and persecution.  Then he had left the shores of Sri Lanka and was granted protection in Switzerland, and he lived there for nearly 20 years.  There is no dispute about that.  When he was ‑ ‑ ‑

GUMMOW J:   Well, the male applicant has not lived there since mid‑1984, the female applicant since 1986. 

MR PATEL:   Yes.  So I think there is not much issue as far as the facts are concerned, or credibility is concerned.  The facts were accepted by the Tribunal that he had experienced persecution from 20‑odd years ago.  He went to Switzerland ‑ ‑ ‑

GUMMOW J:   That is a long while ago.

MR PATEL:   ‑ ‑ ‑ he got protection there and when he was in Switzerland, he also experienced these extortions from LTTE, and this particular person was reported for his bribes, and that has caused the fear that there might be some reprisals if he is apprehended by the LTTE, or if he goes to Sri Lanka, there is some fear on his part that there may be reprisal.  That was one argument which was taken up at the court in first instance, when this decision was appealed against.  The same argument was also pursued in the Full Court. 

I think that the point I was trying to make perhaps I would be better able to demonstrate by using the precise text in the judgment that appears at page 28, starting from: “As the Tribunal is satisfied”.  That is at 35, where his Honour said: 

“As the Tribunal is satisfied that the applicants do not have a well‑founded fear of persecution within the meaning of the Convention in Sri Lanka, it is not necessary to consider their claims of harassment and extortion in relation to Switzerland.” 

And then there is “emphasis added”.  On the next page, 29, at 0: 

It is hard to know what to make of the passage which I have emphasised.  If the Tribunal was intending to hold that the applicants’ claims as to harassment and extortion by the LTTE whilst they were in Switzerland were immaterial to their claims to refugee status then this would surely be an error. 

But his Honour found that that is not the view he would take of those words and went on to give his reasons and cites passages from the Tribunal’s decision.  If I may go to page 34, at 0, his Honour again touches on the same thing in summing up: 

I have already dealt with this submission.  I agree that RRT’s quoted observation is opaque, but it seems to me that RRT has made findings in relation to what occurred to the applicants in Switzerland, and has assessed whether those occurrences gave rise to a well‑founded fear of persecution if the applicants were to return to Sri Lanka. 

We would make two observations.  One is that his Honour recognised that this was not clearly articulated.  The way he put it was “opaque”.  It means it was open to more than one inference, particularly, as he pointed out, it was open to the inference earlier suggested, which would amount to an error.  He declined to draw that inference by relying on not only specific material, but by advancing the argument that inferentially means from what was already recited in the Tribunal’s decision one could infer that this matter had been taken into consideration. 

Now, we would submit that opacity in the expression of whether or not those facts were taken into consideration could result from two possible causes.  One is inability to articulate or express what the Tribunal had really intended in specific terms, or it could be the result of opacity of the context in which these observations were made.  So it is the context, rather than what is recited in the Tribunal’s decision, which would disclose whether or not they were taken into consideration in its proper context.  It is the context which gives the meaning.  Mere recital of these facts, that, “Okay, I have looked into this, I looked into this, I have taken into consideration” – but from what perspective, or from what context?  In what context these matters were considered – that gives us insight into whether or not an error was committed. 

With due respect to his Honour, we submit that if it was considered in proper context, this would have been articulated and expressed that these other considerations he has taken in the context that if he had suffered the persecution which was accepted, that bribes were extorted, and he had expressed fear that there could be retaliation – in fact, attempts were made for retaliation in Switzerland – and his fear was that if he went to Sri Lanka, the Tribunal recognises the fact that this is a well‑organised group and they would have sophisticated means of communications and one would assume that this group that operates in Switzerland would not be operating in a vacuum. 

It would definitely have ties with its counterpart in Sri Lanka, and that is how the applicant looked at the situation, that there would have been action here and they can pass on the information that, look, these are the people who had caused difficulty to the LTTE people in Switzerland and to teach them a lesson or make an example of them.  This information could be related to the counterpart in Sri Lanka, which could result in the applicant being targeted by LTTE in Sri Lanka.  This was the fear which the Tribunal, in our submission, did not take into consideration in its proper context.  It considered that those facts were accepted.

The Tribunal’s reasoning, or basis – the real basis of the Tribunal’s decision rests not on the finding of facts or credibility issue, but the simple proposition that was advanced by the Tribunal that these people had reason to fear persecution when they were in Sri Lanka because they had experienced it, but, by passage of time, they have been out of the country for over 20 years.  The reasoning behind the Tribunal’s decision was that now nobody knows them.  When they go, they are just like any other Sri Lankans, and there would not be any interest.  The authority or the LTTE who operate in Sri Lanka would be more focused on the targets which are known to them.  By reason of that, it was considered by the Tribunal that it did not matter whether or not he had experienced persecution in the 1980s, and he had experienced similar threats from an LTTE member in Switzerland. 

So the only argument which I can usefully advance is this particular argument, that these facts were not considered in their proper context and

they resulted in the wrong application – improper application of the law to the facts, in that the Tribunal had ignored the true impact or effect of what had occurred in Switzerland and how it would impact on the applicant if he were to return to Sri Lanka.  That is the main argument.  I can take it as far as that.  The other argument I would just like to briefly touch on is the question of relocation. 

This was also dealt by the Full Court and was rejected on the basis that the Tribunal had accepted that, yes, he may have problems if he were to go in areas which are controlled by LTTE, but he would have no reason to fear any persecution and he would have full protection, if he were to settle in areas that are controlled by the government authorities and where the LTTE is not active.  This argument fails to take into consideration the issue that, for the Convention reason, he comes from Jaffna, and the argument was that he has been out of the country for 20 years and to suggest that there are certain areas where the full protection is available – assuming that is accepted, that the authorities are able to provide full protection in certain areas – it is not necessary to then consider whether or not that falls within the Convention definition. 

In our respectful submission, it is sufficient if it is established that, for a Convention reason, there is a fear of persecution if he were to go to Sri Lanka, and it should not be focused whether or not it is safe for him to go to any particular area.  The Tribunal has not adequately dealt with the question whether or not it is reasonable to expect him to safely settle in those areas.  Those are our submissions, unless your Honours wish me to address any particular point. 

GUMMOW J:   Thank you.  We do not need to hear from you, Mr Bromwich.

The applicants are Sri Lankan nationals who resided in Switzerland for many years before entering Australia.  Their application for a protection visa was rejected by a delegate of the respondent Minister.  That decision has been affirmed by the Refugee Review Tribunal and applications for review failed in the Federal Court before a single judge and the Full Court.  Counsel appeared for the applicants at each level in the Federal Court. 

In this Court, if special leave were granted, the applicants would wish to reargue grounds which failed in the Federal Court, namely, that they would still have a well‑founded fear of persecution in Sri Lanka if they were to return there; that the Tribunal was obliged to but did not make findings in relation to all factual matters upon which the applicants relied, and that the Tribunal erred in finding that risks of persecution, if any, that the applicants might face in Sri Lanka could be avoided by relocation.  With respect to the fact finding by the Tribunal, it said that there was insufficient appreciation of certain events that occurred whilst the applicants were in Switzerland.  

The applicants also would now seek to add that there were serious practical difficulties in the way of their relocation in Sri Lanka.

The Tribunal gave a full consideration to all of the matters that the applicants now seek to raise in this Court.  So, also, did the Federal Court in respect of those matters, including the last to which I have referred.  That is so, although the last matter may not have been clearly articulated below as a basis for review of the delegate’s and the Tribunal’s decisions.  All of the issues raised, however, are factual ones to which well‑settled principles are and were applied.  For that reason, and a further reason that an appeal to this Court would be most unlikely to succeed, the application should be dismissed, and is dismissed with costs.

AT 3.12 PM THE MATTER WAS CONCLUDED