Arumainathan, Leonard Jeyan v Minister for Immigration and Multicultural Affairs
[1998] FCA 1183
•4 SEPTEMBER 1998
FEDERAL COURT OF AUSTRALIA
PRACTICE AND PROCEDURE – APPEAL – application for stay pending appeal to High Court of Australia – nature of test – relevance of nature of subject matter of appeal
Papachristopoulos v The Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, Branson J, 19 December 1997), referred to
Manfal Pty Ltd (in liq) v Trade Practices Commission (1990) 65 ALJR 256, applied
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, referred to
LEONARD JEYAN ARUMAINATHAN v DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 450 of 1998
MADGWICK
4 SEPTEMBER 1998
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY
NG 450 of 1998
BETWEEN:
LEONARD JEYAN ARUMAINATHAN
APPLICANT
AND:
DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE(S):
MADGWICK
DATE OF ORDER:
4 SEPTEMBER 1998
WHERE MADE:
SYDNEY
SHORT MINUTES OF ORDER
THE COURT ORDERS THAT:
The application for a stay of the orders made by Wilcox J on 7 May 1998 is refused.
The applicant is to pay the respondent’s costs.
Orders 1 and 2 are stayed for a period of seven (7) days from the date of this Order.
IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY
NG 450 of 1998
BETWEEN:
LEONARD JEYAN ARUMAINATHAN
APPLICANT
AND:
DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE(S):
MADGWICK
DATE:
4 SEPTEMBER 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(revised from transcript)
HIS HONOUR: In this case, the applicant has sought special leave to appeal to the High Court of Australia from a judgment of the Full Court of this Court, constituted by the Chief Justice and Whitlam and Marshall JJ, which was given on 3 July 1998. That judgment dismissed an appeal from a judgment of Wilcox J, in which his Honour dismissed the applicant's application for judicial review of a decision made by the Refugee Review Tribunal, which decision was one that declined to disturb a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant had claimed to be a refugee entitled to such a visa. His claim was that as a young Tamil male he was subject to racial and/or political persecution and had a well‑founded fear of it should he be returned to Sri Lanka.
The points argued by Mr Beech‑Jones of counsel for the applicant before Wilcox J were essentially two. The first was founded upon an unfortunate sentence in the reasons given by the Tribunal. That sentence was:
"The Tribunal finds that the applicant could return and live safely in Sri Lanka."
The argument was that, because one can live safely in a place although still be subjected to persecution under the Convention relating to the Status of Refugees (as amended by the 1967 Protocol), the Tribunal member had applied the wrong test to the applicant's case. The second point was that the Tribunal member had not correctly applied the relevant legal test for “well‑founded fear of persecution” to the applicant's circumstances.
Both questions involved judicial characterisation of the whole of the reasons given by the member of the Tribunal. Wilcox J held that such reasons:
"should not be approached in a nit‑picking, pedantic way by judges anxious to find fault with expression but with a real attempt to understand what it was that the Tribunal Member was finding and to consider whether that complied with the requirements of the relevant legislation."
That approach is not only well sanctioned by authority, but unquestionably required of this Court. I would add that it seems to me that Wilcox J’s way of restating or paraphrasing that requirement is, with respect, typically illuminating. It is not surprising therefore, with respect to the Full Court, that its members agreed with Wilcox J’s reasons and rejected the appeal from his decision.
Insofar as special leave might be thought to depend on a view that this Court had erred in relation to either of those two legal points, it seems to me that the prospects of special leave being granted by the High Court are minimal.
The second basis suggested as one which might find favour with the High Court on the special leave application is that, inadvertently, the Full Court may not have granted procedural fairness to the applicant. This is founded upon an inference that the Full Court did not have before it the written outline of submissions handed by Mr Beech‑Jones to Wilcox J. That inference arises from the observations by the Full Court that it had considered -
"the submissions of Mr Beech‑Jones as recorded in the reasons for judgment of Wilcox J." (emphasis added)
I agree that that inference is open, but it makes no difference because Mr Bell, who appears for the applicant, has shown me the written outline of submissions by Mr Beech‑Jones and to my mind it is quite clear that, insofar as the judgment of Wilcox J records such submissions,
it does so accurately and to the point. It seems to me that while this could be an important matter, here the prospects of success on the special leave application founded on this point are also minimal.
That, however, is not the only relevant matter. The jurisdiction to grant a stay to preserve the subject matter of a projected appeal to the High Court of Australia is unquestionably to be exercised only in very special circumstances. It is an "extraordinary" jurisdiction. So much was made clear by Brennan J in the well‑known case of Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 685, and see the discussion also by Kirby J in Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 at 463‑5. The precondition for the exercise of this extraordinary jurisdiction is that the Court be satisfied that a stay is required to preserve the subject matter of the litigation. That is undoubtedly the case here and the contrary was not argued by Mr Pearson, the solicitor who appears for the Minister. It is also relevant to consider whether there is a substantial prospect that special leave to appeal will be granted. In my view, for the reasons given above, there is not.
Secondly, it is relevant to consider what loss will be caused to the respondent. Branson J referred to this in Papachristopoulos v The Minister for Immigration and Multicultural Affairs (19 December 1997, unreported, Federal Court), Her Honour said that:
"the maintenance of any person in custody is an expensive exercise, the cost of which is borne by the Australian community."
It was also said by Brennan J in Burgundy Royale to be relevant to consider where the balance of convenience lies. In that regard, Branson J referred to the -
"very considerable weight to be given to the right of all persons in Australia to approach the Australian courts and to have their legal rights and obligations determined according to law."
That is an important matter.
In my view, there is another important matter which needs to be considered. This case and cases like it concern, as Toohey J remarked in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 407, human fate. They do not concern mere adjustment of property rights or matters of monetary compensation. To condemn a person, without proper legal warrant, to return to a country in which he or she faces a real chance of persecution is a very heavy thing, and, in my respectful opinion, one should also weigh in the balance, in cases like this, the nature of the subject matter of the litigation.
It is true also, however, that giving due and considerable weight to that factor cannot detract from the importance of considering the prospects that special leave to appeal will be granted because, as Mr Pearson, who appears as solicitor for the respondent, observes, if there is scant such prospect, then notwithstanding the very great intrinsic or potential importance of the subject matter of the litigation, its actual value will be minimal. Nevertheless, it seems to me that, in a case such as this, where a person's right to remain in Australia to escape a real chance of Convention persecution is involved, it would be right to take no stringent view of what is involved in the test that there be a substantial prospect that special leave to appeal will be granted. For myself, absent binding authority to the contrary, I would think it sufficient if it could be shown that there was a reasonably arguable case for special leave.
It is somewhat invidious for a judge of a Court inferior to the High Court to have to pass on the prospects of what might occur in the High Court of Australia. Nevertheless I must give effect to my own view, and that is that there is not a substantial prospect of success even in the liberal sense of that term to which I have referred.
Finally, the question is whether, having regard to all these matters, the case is sufficiently exceptional as to warrant the exercise of the extraordinary jurisdiction of the Court. It is not, as Toohey J observed in Manfal Pty Ltd (in liq) v Trade Practices Commission (1990) 65 ALJR 256 at 258, merely "an exercise in weighing advantages and detriment or in balancing the convenience of the parties".
Despite Mr Bell’s having said as much as could be said, I do not consider that the case is an exceptional one in that sense, and I decline to grant the stay sought. The applicant is to pay the respondent's costs of the application.
I will however grant a stay of proceedings on the judgment of the Full Court for a period of seven days to enable an application to the High Court, if thought fit, and this will be
understood to operate as an injunction requiring the Minister not to remove the applicant from Australia during that period.
I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.
Associate:
Dated: 4 September 1998
Counsel for the Applicant: R Bell Solicitor for the Applicant: Dominic Stamfords Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 4 September 1998 Date of Judgment: 4 September 1998
0
0
0