Devasahayam, Ex parte - Re Minister for Immig

[2000] HCATrans 128

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M77 of 1998

In the matter of –

An application for Writs of Certiorari and Mandamus and Prohibition or an Injunction against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS in relation to a decision through his Delegate, KRISTIN STAMPF DE VAGRAS

Respondent

Ex parte –

RAGHUDEVAN DEVASAHAYAM and SURENTHINI RAGHUDEVAN

Prosecutors

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 29 MARCH 2000, AT 9.46 AM

(Continued from 16/3/00)

Copyright in the High Court of Australia

MR A.F.L. KROHN:  May it please the Court, I appear for the prosecutors in that matter.  (instructed by Ravi James & Associates)

MR R.R.S. TRACEY, QC:  If your Honour pleases, I appear on behalf of the respondent Minister.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Now, Mr Krohn, in this matter we now have available summary of argument and controverting summary of argument.  Could I just take a moment to see if I understand the basis upon which the prosecutors’ argument is put.  I do so with a view to understanding, rather than at the moment with a view to having the argument developed and expanded.  But if we use as a convenient aide memoir your summary of argument and go to the grounds of review which commence on page 4 of that document in paragraph 13 and following, we have denial of natural justice or fail to take relevant matters into account.  As I understand it, the denial of natural justice lies in or lies in part - well, there is the question.  Where lies it?  Perhaps you tell me, rather than I tell you what I deduce from this.

MR KROHN:   Your Honour, I think it is a fair thing to say that the denial of natural justice is very much tied up with a failure to have regards to relevant considerations.

HIS HONOUR:   What are the relevant considerations to which regard should have been had?

MR KROHN:   They are put, in essence, your Honour, on the basis that the delegate has, in a somewhat one-sided way, relied very extensively upon information from the Department of Foreign Affairs and Trade and, at a number of points of the decision at least, the delegate has effectively disbelieved the prosecutors, apparently largely because it is a choice between what the Department of Foreign Affairs and Trade has to say and what the prosecutors have to say.  There is perhaps a footnote to that ‑ ‑ ‑

HIS HONOUR:   Where lies the failure to take to account relevant considerations if a decision maker says, “You tell me this thing.  I have other information saying to the contrary.  I accept the other information, not what you say.”?

MR KROHN:   It is put, your Honour, that readily available to the delegate is a wide variety of sources of information which go far beyond the information of the Department of Foreign Affairs and Trade and that, at least in determining crucial points, the general outline of the argument is that on those points it was incumbent upon the delegate to do more than she did to obtain other information to resolve the conflict.

HIS HONOUR:   Does the evidentiary material that is presently before us give any concrete example of the kind of material to which regard should have been had but was not?

MR KROHN:   There is in the affidavit of the prosecutors’ solicitor reference to the kind of material, but I accept that the particular instances referred to deal with information relating to events after the decision was made.  But they indicate the kind of material and they are referred to, your Honour, at paragraph 14 ‑ ‑ ‑

HIS HONOUR:   Of which affidavit?

MR KROHN:   I am sorry, your Honour.  It is the affidavit of Selvadurai Raveendran sworn 14 September 1998.

HIS HONOUR:   And paragraph?

MR KROHN:   Your Honour, perhaps I could take you to paragraph 12 at the top of page 5 and in particular to the last two sentences of that paragraph:

Accounts and analysis of the security situation in Sri Lanka including its particular adverse impact on the safety of the Tamil population prepared by a variety of government and non‑governmental agencies have been both publicly available and at the disposal of, and accessible to the Minister.  Such material has routinely been referred to by the RRT in its numerous decisions over the period.

Your Honour, the particular kind of material that is referred to relates to the risk of persecution to deportees who unsuccessfully sought asylum in other countries and have been returned to Sri Lanka.  That is dealt with, in particular, in paragraph 14, 15, 16 and 17 of that affidavit.

HIS HONOUR:   That being, as I understand it, said by the respondent to be material all coming into existence after the decision which it is sought to challenge.

MR KROHN:   The particular material is, your Honour, but the kind of material – and I cannot say, your Honour, that the evidence goes beyond deposing to the “kind of material”, but I submit that even on the basis of that evidence, your Honour, for the purpose of showing an arguable case, there is evidence before you that there is a wide variety of reports – perhaps, your Honour, there is one point here ‑ ‑ ‑

HIS HONOUR:   Just before you go on, for the purpose of showing an arguable case, am I to understand that if order nisi were to be granted, it would follow that further material would be put on?

MR KROHN:   Further material – I would need to obtain instructions, your Honour, but it would seem to me appropriate that further material should at least be sought.

HIS HONOUR:   Why should this not come to an end now, Mr Krohn?  This has had a very, very long history, this proceeding.  It is a matter of 1998, commenced with the filing of the affidavit in September 1998, and we really must, at some point, come to a time where enough is enough.

MR KROHN:   That is so and, your Honour, I do not have instructions that further material would be put in.

HIS HONOUR:   No.

MR KROHN:   And there were directions that were made by your Honour for the filing of further material.  That has not been done and I do not have instructions that there would be further material.  May I make one observation?

HIS HONOUR:   Yes, please.

MR KROHN:   There is a point at which this perhaps traverses two of the grounds of review that are sought in that one question which seems not to have been dealt with by the delegate is that even if one accepts her findings that these prosecutors were not specifically detained and maltreated for the particular perceived involvement with the Liberation Tigers, but had been detained by way of a routine sort of sweep, if one accepts that, your Honour, the delegate, in my respectful submission, ought to have asked, “Well, does that profile, does that history affect the risk of persecution of these prosecutors should they now return to Sri Lanka?”  Your Honour, that is why I submit that the evidence of there being that kind of information available about risk to deportees or returnees, that is why that is relevant.  It is not put, cannot be put, that the delegate had to have regard to those reports which eventuated later but, your Honour, it must be the case that the delegate ought to have considered, “On the basis of my findings of fact, that I accept that there had been some detention, at least of one of the prosecutors, I should ask does that affect the possibility of persecution should they now be returned.”  In my submission, the decision does not do that.

HIS HONOUR:   Is this a way of putting the case that is encompassed by an existing ground?

MR KROHN:   It is a way of putting the case, I submit, that is encompassed by the second ground in the draft order as originally filed.

HIS HONOUR:   The failure to apply a correct test question.

MR KROHN:   Yes, your Honour.

HIS HONOUR:   Which really turns largely, does it not, on Chan, Guo and authorities of that kind?

MR KROHN:   Yes, your Honour.  I do not know if it is convenient for your Honour for me to turn to this ground.  In the summary of argument I have raised the issue of – particularly it is the point made by your Honour in this Court and also in the Court in dealing with Wu Shan Liang, the question about asking “What if I am wrong?”.  A proposed amended draft order was filed adding that as a separate ground, but even if that not be put as a separate ground, it must be comprehended by the question of whether the correct test has been applied. 

Your Honour, there are several way in which it can be argued that the delegate has failed to put the correct test.  First, the delegate has accepted some of the things that the prosecutors have said occurred.  I am not sure whether your Honour has had an opportunity to read the delegate’s decision.

HIS HONOUR:   Some time ago.  Which is its exhibit?

MR KROHN:   SR1, in relation to the first prosecutor, your Honour, and SR2 in relation to the second.  They are separate decisions but they have clearly been prepared in conjunction, which is quite proper.

HIS HONOUR:   Yes.

MR KROHN:   Very briefly, the kinds of claims made are that, in the 80s, by way of background, the first prosecutor, the husband, had been detained and tortured on a number of occasions.  But then, coming to 1995, both the husband and wife, both prosecutors, had been persuaded unwittingly to give accommodation to two people who, it later turned out, were members of the Liberation Tigers.  Those people were detained and then, subsequently on different occasions, the claim was that each of the two prosecutors was detained and tortured.  At the very least, your Honour, the delegate accepted that the prosecutor wife, the second prosecutor, had been detained.  She had been strip searched and the delegate said that she was unable to be satisfied whether the prosecutor wife had been sexually assaulted while in detention because that prosecutor was unconscious at the time.  So, at the very least, the delegate accepted that the second prosecutor had been detained, strip searched and reduced to a state of unconsciousness while in detention.

Now, on that basis, your Honour, there is a question of whether the delegate has properly applied the test of whether there was a well‑founded fear of persecution or whether there was a real chance of persecution.  The delegate has said – you will find this, your Honour, at SR1, page 7, 4.3.3. The delegate says that:

I do not accept that mere detention for questioning by the authorities conducting operations against the LTTE amounts to persecution, as I consider that this is a routine security procedure put in place by the Sri Lankan government to safeguard the community from LTTE atrocities.

There is a similar statement in relation to the other prosecutor at SR2, page 6, 4.3.3.  It is a somewhat briefer statement.

HIS HONOUR:   But what is the basis for asserting that the decision maker did not apply the correct test?

MR KROHN:   The decision maker, your Honour, has ruled out that the treatment that the prosecutors suffered, even if it is no higher than what her findings were, could not be persecution for a Convention reason and could not be the basis of a well-founded fear for persecution for a Convention reason.

HIS HONOUR:   Could not be or was not in this matter.

MR KROHN:   Your Honour, those statements to which I have just referred your Honour take it pretty close to “could not be” and, in that event, your Honour, it seems that the delegate is ruling out of consideration something that properly ought to be considered.  It might be, in some cases, and it might not be in others, that detention of a Tamil person in the course of what was being conducted on a large scale might amount to persecution for a Convention reason, either through imputed political opinion or by reason of race.  With respect to the delegate, she does not appear properly to have considered that that is how there might be a Convention‑related well‑founded fear of persecution.

Further, your Honour, the question “What if I am wrong?” has not been asked.  Certainly, in some circumstances, it might not be required for a decision maker to ask “What if I am wrong?” but that, as this Court has pointed out, can only be if there is a very high degree of certainty on the part of the decision maker of the correctness of rejecting an applicant’s claims.  In this case, your Honour, if your Honour looks at the reasons of the delegate, although the delegate says that “I have concerns about the credibility”, those findings are not actually to do with what is often described in court as credit, they are rather very detailed and, in my submission, convoluted constructions based on a number of assumptions by the delegate about how things work in Sri Lanka and not necessarily by reference to evidence. 

This is a delegate’s decision and so it is not amenable to any review for breach of section 430 obligation of the Act.  So leaving that aside, it is still the case that there is a very convoluted analysis by the delegate of virtually every claim that is made and, for example, in one case – perhaps I should take your Honour to it - there is rejection because the delegate says that the prosecutor wife says she was detained.  I will find the reference, your Honour.  The review of the prosecutor wife’s claims begins at page 12 of SR2 and, broadly, it is 5.3.8 of the delegate’s reasons in relation to that prosecutor.  The corresponding section in the first prosecutor’s decision is also at 5.3.8 of that decision, which is SR1.  But with SR2, at the moment, your Honour, there is a point where – the delegate’s state of mind is that she is doubtful – she says on page 13 of SR2 at paragraph 3 on that page – the beginning of page 3 the delegate says:

The applicant claims she was detained and imprisoned in late September 1995.  I consider plausible that she may have been detained as part of general security measures in place in Colombo at that time and possibly even sexually harassed.

Now, your Honour, “possibly even sexually harassed”, in my submission, that must amount to persecution.  There is the separate question, whether done for a Convention reason ‑ ‑ ‑

HIS HONOUR:   Really, Mr Krohn, you have to read the whole paragraph in its context, and to read particularly that part of the paragraph that reads:

I am unable to make a material finding of fact on this claim given that the applicant herself is not sure what happened.

MR KROHN:   I accept that, your Honour.  Then, if your Honour goes to the next paragraph, the delegate says:

I, nevertheless, continue to have doubts about the plausibility of the applicant’s claims –

HIS HONOUR:   Yes.

MR KROHN:   It is put in terms of doubt, your Honour.  On that basis of doubt, at the end of that paragraph, paragraph 4, the delegate says:

I, therefore, conclude that these claims have been fabricated to further the applicant’s claims to refugee status.

The sorts of findings in the process of that paragraph are, towards the top of page 14, second line:

I accept that she may have been detained at a police station on some occasion as this is supported by country information at 5.3.4 above.  I do not, however, find her claims of transfer to prison convincing.  As mentioned above, the applicant has made no claim that she was brought before a magistrate and formally remanded into custody.

Your Honour, briefly, the point is that the delegate has come to a conclusion of rejecting claims as fabricated but, in fact, on a fair reading of what the delegate herself says, her situation is a situation of doubt about the plausibility of claims and that in that circumstance it was incumbent upon the delegate to ask the question, “What if I am wrong?” because, as this Court has pointed out, your Honour ‑ ‑ ‑

HIS HONOUR:   If this argument is an argument that is tenable, it is an argument that depends upon a reading of the reasons, does it not?

MR KROHN:   It does.  It requires quite detailed analysis, but that is the argument, your Honour.  That really is the essence of the second of the grounds.  If your Honour will pardon me, just if I may review my summary to see if there is anything else I should bring to your Honour’s attention.

HIS HONOUR:   There is reference also at page 7 of your outline to “Error of Law - Persecution for reasons of race”, again a point that depends upon an understanding of what it is that the delegate has said, is it not?

MR KROHN:   That, your Honour, relates to the third proposed ground.  It goes to the points I have mentioned to your Honour found at 4.3.3 of the general statement of principle that “I do not accept, detention as part of a routine sweep.”  Perhaps I should quote it precisely, your Honour:

I have not accepted that mere detention for questioning by the authorities conducting operations against the LTTE amounts to persecution.

Your Honour, my submission is that sometimes that is an appropriate finding of fact and sometimes it is not and, again, that this is a matter which needs to be assessed by a fair and correct assessment of what the delegate has said and has done.  In applying that principle to the individual prosecutor’s case, the delegate had done that at SR1, page 16, paragraphs 5 and 6, and SR2, page 14, paragraphs 4 and 5.

HIS HONOUR:   Well, as I say, Mr Krohn, I am concerned at the moment not so much to have the argument developed as to have the arguments identified and, that, I think you may have done.

MR KROHN:   Yes, your Honour, I accept that.  Then if I may take your Honour to the relief which is sought in relation to the decision by the Minister or the action by the Minister in relation to the request under section 48B.  Your Honour, this was a case where, on the evidence before your Honour, through no fault of the prosecutors, they missed the 28-day deadline.  This is a situation where, in my submission, two things have occurred.  First, the Minister has actually begun a consideration of the request.  The Minister, I accept, is not obliged pursuant to the Act to consider a request but if he commences to do so then he must do so then he must do so by reference, amongst other things, to relevant considerations and considerations of law and limits of the statute.

In my submission, by reference to the Minister’s own personally signed letter, which is SR6, the Minister has commenced a consideration and, having done so, the Minister ought to have had regard to the clear intention of Parliament that those who are refused by a delegate should have an opportunity for merits review.  Your Honour, I would hand up to your Honour in that connection a very brief extract from Hansard.  It is the Minister’s second reading speech introducing the provisions in relation to the Refugee Review Tribunal.

HIS HONOUR:   Yes.

MR KROHN:   Your Honour, this is the report of Hansard of the House of Representatives from 4 November 1992.  It begins on the second column of the page before your Honour, page 2620 of Hansard.  It is Migration Reform Bill 1992.  That was the Bill which introduced what still remains substantially as the provisions relating to the Refugee Review Tribunal.

If I may take your Honour to the bottom of the fourth column on that page.  It is the bottom of the right-hand on Hansard 2621 - - -

HIS HONOUR:   Yes, speaking of the desirability of merits review.  So much is apparent from the terms of the Act.

MR KROHN:   Yes, your Honour.  With respect, it goes just a little further than desirability.  In that paragraph, the Minister at the time stated that:

Under the Reform Bill, the following people who are adversely affected by a decision will be entitled to independent merits review; onshore refugee claimants –

So, with respect, your Honour, if the Minister has commenced a consideration of this section 48B request, then that intention of Parliament, which is manifest in the structure of the Migration Act itself, is relevant and should have been taken into account.  And on the evidence before your Honour and the evidence before the Minister there was nothing whatever to suggest that there was any issue of delay which ought to exclude these prosecutors from an appropriate consideration.  The Minister could not be compelled to accede to the request but he had at least to have regard to that intention of Parliament.  On that basis, your Honour, I submit that there is an arguable case in relation to section 48B.

HIS HONOUR:   Yes.

MR KROHN:   In relation to the request, the application for enlargement of time, your Honour - - -

HIS HONOUR:   There was a very long period but, Mr Krohn, let me cut across this.  This litigation has got to come to an end at some point.  It has to come to an end finally.  The present inclination of my mind is to refer it into a Full Court so that it may be dealt with once for all.  Perhaps I will hear Mr Tracey on that question.

MR KROHN:   If your Honour please.

HIS HONOUR:   Mr Tracey, my concern is that this litigation be determined and that it be determined in what, in the end, proves to be the most efficient way.  Understanding that you would wish to say there is not even an arguable case, I see a degree of difficulty if that question on the low threshold thus presented were to be tested in a Full Court and the matter then have to come back again.  What do you say against my referring the matter into a Full Court straightaway?

MR TRACEY:   As your Honour puts it, there is nothing I can say against that.

HIS HONOUR:   I would do so on this basis, Mr Tracey – and I would not wish Mr Krohn or his clients to be under any misapprehension:  the applicants have now had a very long time and repeated adjournments in which to put their evidentiary house in order.  It will no doubt be a matter for the Full Court rather than me if some attempt were made to change direction from the direction that so far has been plotted by the application.

No doubt in making that decision the Full Court may regard the age of this matter as a matter of significance and the repetition of opportunity to the applicants to put on whatever material they wish as also a matter of significance, but those are perhaps matters for the Full Court, not for me.

The other aspect of this proceeding to which the parties might wish to give informal attention is that their outlines of argument should be prepared on the assumption that those outlines of argument stand as a full and ample statement of the arguments they wish to advance.  They should not assume that they will have unlimited time in a Full Court in which to develop those arguments orally.  Again, the course of proceedings that is adopted by the Full Court will be a matter for it, not for me, but the parties should order their affairs on the assumption that one choice open to the Full Court is that the time for oral argument would be limited, perhaps even limited to a very short period.  No doubt, the parties will bear that in mind when they prepare their written outlines of argument.

MR TRACEY:   If your Honour pleases.

HIS HONOUR:   There will be an order in this matter directing that the application be made by notice of motion to a Full Court, and adjourning the application so that notice of the application may be given accordingly.  The costs of the proceedings today will be costs in the application.  I will certify for the attendance of counsel.

MR TRACEY:   If your Honour pleases.

MR KROHN:   If your Honour pleases.

AT 10.20 AM THE MATTER WAS CONCLUDED