Gamage, Ex parte - Re Regugee Review Tribunal

[2000] HCATrans 543

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  
  Sydney  No S248 of 2000

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

Respondent

Ex parte -

PUSHPARANI WEPITIYA GAMAGE

Applicant

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 30 NOVEMBER 2000, AT 11.58 AM

Copyright in the High Court of Australia

MRS P.W. GAMAGE appeared in person.

MR S.B. LLOYD:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Frankcom, you are interpreter, are you?

MR P. FRANKCOM:   No, your Honour.

HIS HONOUR:   You are the interpreter?  Right.  Mr Frankcom, you are assisting?

MR FRANKCOM:   Your Honour, I would like to ask the leave of the Court to speak for Mrs Gamage.

HIS HONOUR:   We will just get the interpreter sworn in first.  Just before we do, could you explain to me if you are going to assist Mrs Gamage why do we need an interpreter?

MR FRANKCOM:  I do not speak Tamil.  If there are some specific questions, your Honour, that she needs to answer, then I cannot explain the full details of those.

EDILBERT NAVEENAN RAJADURAI, sworn as Interpreter:

HIS HONOUR:   Mr Frankcom, you seek leave to appear for Mrs Gamage, is that right?

MR FRANKCOM:   Yes, your Honour.

HIS HONOUR:   Is that opposed?  Can you just tell me who you are, Mr Francom?

MR FRANKCOM:   Yes.  I came to know, your Honour, Mrs Gamage through our same Christian congregation that we attend.

HIS HONOUR:   You are a personal friend?

MR FRANKCOM:  I am a personal friend.

HIS HONOUR:   All right.

MR FRANKCOM:   We have been able to obtain legal representation, your Honour, …..through the Bar Association.

HIS HONOUR:   All right.  Well, you have that leave.

MR FRANKCOM:   Thank you, your Honour.

HIS HONOUR:   What is it that you would like to say?

MR FRANKCOM:   Well, your Honour, we are seeking leave through the order nisi to try and remedy a situation that came about through a decision of Justice Lindgren not to allow the Federal Court to hear a review of the Tribunal decision, our appeal.

HIS HONOUR:   I have read the reasons for judgment of Justice Lindgren of 13 September 2000 and I have the draft order nisi.  Mr Frankcom, have you read Justice Lindgren’s reasons for decision?

MR FRANKCOM:   Yes, your Honour.

HIS HONOUR:   Have you noticed the last paragraph of his decision on page 12?

MR FRANKCOM:   Paragraph 38, is it, your Honour?

HIS HONOUR:   That is it.

MR FRANKCOM:   Yes, your Honour, I have read that.

HIS HONOUR:   What somebody is going to have to explain to me, if this application is to succeed, is what are the grounds on which you seek the relief proposed in the order nisi.  If you look at page 2 of the draft order nisi, you will see that three grounds are set out in general terms.  Let us take them one by one.  What is the error of law referred to in ground 1?

MR FRANKCOM:   Your Honour, I have isolated, with the help of some advice, a couple of grounds that we would like to put forward to your Honour, the first main point being that the Tribunal failed to make an express finding in relation to the issue of Mrs Gamage’s claims of ostracism, although it referred to this ostracism in evidence.

HIS HONOUR:   We are dealing with the decision of 3 May 2000, is that right?

MR FRANKCOM:   This was the decision of – the second review decision, yes.

HIS HONOUR:   Are we dealing with the decision of Ms Margaret O’Brien of 3 May 2000?

MR FRANKCOM:   Yes, your Honour.

HIS HONOUR:   Right.  Now, you want to say that that contains an error of law.  You will need to point out to me where the error of law is.

MR FRANKCOM:   Okay.  It comes under the definition of “harm” that is contained in the Act that the Review Tribunal must consider.  The specifics of it, the exact terminology, your Honour, I do not know so I am unable to give you a paragraph and a specific code for it.  But if I could refer to Justice Emmett’s words in his submission there, that it had to go back under those provisions that it went back to them, that they have not adequately answered that question in that second decision.

HIS HONOUR:   Why not?

MR FRANKCOM:   Your Honour, if you read the decision there, it mentions the cases of ostracism but it deals with it in a very light way, that sufficient weight has not been given to the fact that ostracism is a form of persecution.  While not physical, it is a mental form of persecution and that needs to be more explored and that some of the questions that were raised on that second review by the Tribunal, there was no interview, so some of these things that needed clarifying were unable to clarified.  The German Government, your Honour, did have a duty to protect Mrs Gamage and that we would not like to submit that the German Government is unable to provide such protection against such a form of persecution.

HIS HONOUR:   Is that all you want to say about ground 1?

MR FRANKCOM:   That is all I would like to say about ground 1 at the moment.

HIS HONOUR:   Well, I am not sure that you will have another opportunity, so when you say “at the moment”, you will need to say now everything you want to say about ground 1.

MR FRANKCOM:   Yes, your Honour.  Well, that is specifically it, that that aspect of ostracism was not covered in the Review Tribunal’s second decision.

HIS HONOUR:   What do you want to say about ground 2?

MR FRANKCOM:   I would just like to make the point there that the information provided by the Refugee Tribunal was not sufficient in relation to the issue of effective protection, that we believe that Mrs Gamage cannot really expect effective protection from the LTTE and that the Refugee Review Tribunal has its own evidence as to the effect and the aspect of that LTTE activity and it has its own intelligence and that also was not given sufficient weight in the second decision of the Refugee Tribunal, that was not adequately pursued, your Honour.

HIS HONOUR:   Is there anything else you want to say in relation to ground 2?

MR FRANKCOM:   No, your Honour.

HIS HONOUR:   What do you want to say in relation to ground 3?

MR FRANKCOM:   There was a couple more points that I would just like to make, if the Court permits, your Honour.  Whether they are legal points, I do not have the training to know, but if I can articulate them, if I have the Court’s permission.  Okay.  That Mrs Gamage’s circumstances have changed since the decision of the Refugee Review Tribunal, that she no longer has a valid German travel document ‑ ‑ ‑

HIS HONOUR:   I am sorry, is there evidence about this?

MR FRANKCOM:   Yes, your Honour.  I have a letter from the German ‑ ‑ ‑

HIS HONOUR:   I am terribly sorry.  Is there evidence?  There is an affidavit of Mrs Gamage dated October 2000.

MR FRANKCOM:   Yes, your Honour.

HIS HONOUR:   Do you rely on that affidavit?

MR FRANKCOM:   Yes, your Honour.

HIS HONOUR:   Is there any objection to that affidavit?

MR LLOYD:   No, your Honour.

HIS HONOUR:   I have read that affidavit.  Is there any other evidence apart from that affidavit?  I am not aware of any at the moment.

MR FRANKCOM:   Not that has been submitted to the Court, your Honour.

HIS HONOUR:   Are you addressing an argument to me in support of grounds 1, 2 or 3 in this order nisi?

MR FRANKCOM:   What I am trying to do is to remedy the situation, that we would like this to be referred back to the Federal Court so we can have a chance to present a full case and with full details of all these objections that we have, your Honour, to the Refugee Review Tribunal’s decision.  Because of the short nature that I have had to prepare our arguments for this occasion, then we need more time and I need a lot more legal advice, which I hope to obtain, that we can more effectively explore these objections we ‑ ‑ ‑

HIS HONOUR:   Are you telling me that you are applying for an adjournment of this application?

MR FRANKCOM:   No, your Honour.  No, your Honour, but we could not get the legal representation to adequately put Mrs Gamage’s case with the resources that we have at this time.

HIS HONOUR:   But are you seeking an adjournment of this application?

MR FRANKCOM:   No, your Honour.

HIS HONOUR:   Go ahead.

MR FRANKCOM:   Just one other point that I would like to make involving the changes in Mrs Gamage’s circumstances, your Honour, is that her husband has also expressed his wish that he wishes to start a new life and that he is no longer willing to remain married to Mrs Gamage, all of which impacts on the decision of the Review Tribunal.

HIS HONOUR:   Have you read the written outline of submissions for the respondent?

MR FRANKCOM:   Yes, your Honour, I have.

HIS HONOUR:   Is there anything you want to say in answer to them?

MR FRANKCOM:   If I could make some comment on them, yes, your Honour.  Paragraph 16, your Honour, to answer that, I would submit that the points that I have raised here would explain the evidence that we have and the points of law that we would like to present, so I feel that that would answer that paragraph 16.

HIS HONOUR:   I am afraid I have not understood what you said then.

MR FRANKCOM:   Sorry.  In paragraph 16 there, your Honour, it quotes, in relation to third ground of review, the no evidence ground, there is also no particularisation of the ground. 

In addition, the no evidence ground of review provided for in s 476(1)(g) is a statutory ground of review in respect of which the High Court has no jurisdiction.

I would submit that the evidence that I have submitted here is particularisation of the grounds that Mrs Gamage would like to pursue in the Federal Court.

HIS HONOUR:   What is the evidence to which you just referred?

MR FRANKCOM:   That is the evidence that the issue of ostracism has not been adequately dealt with as a form of persecution, that the Review Tribunal has erred in its decision that ostracism is not a form of persecution.

HIS HONOUR:   By “evidence” do you mean “argument”?

MR FRANKCOM:   Argument, your Honour, sorry.

HIS HONOUR:   Is there anything else you want to put?

MR FRANKCOM:   No, your Honour, that is as far as I have been able to go.  I would be willing to answer any questions that the Court has, but basically those are the grounds, your Honour.

HIS HONOUR:   Thank you.  I do not need to hear you, Mr Lloyd.

The circumstances in which this application comes to this Court can most conveniently be found in the reasons for judgment of Justice Lindgren in the Federal Court of Australia dated 13 September 2000. I will not repeat what appears in those reasons. It is sufficient to say that the applicant is now seeking relief under section 75(v) of the Constitution in relation to a decision of the Refugee Review Tribunal made on 3 May 2000. That decision was made following an earlier successful application to the Federal Court which resulted in a judgment of Justice Emmett of 10 December 1999. The decision presently in question was made pursuant to a direction that the Tribunal consider certain issues which were held not to have been sufficiently considered in an earlier decision of the Tribunal.

The applicant attempted to apply for a review by the Federal Court of the decision of 3 May 2000 but her application was filed outside the time limit contained in the Migration Act 1958 (Cth). In holding that the Federal Court had no jurisdiction to deal with the application for review of the decision of 3 May 2000, Justice Lindgren pointed out, in paragraph 38 of his reasons for judgment, that there was no particularisation of any grounds for review by the Federal Court and it was not obvious from a reading of the reasons of the Tribunal that any of the grounds relied on would be established.

The applicant's case in this Court has been presented on her behalf by a friend, Mr Frankcom.  The draft order nisi states three grounds upon which constitutional relief is sought.  They are as follows:

(1)  The respondent erred in law in its decision.

(2) The respondent failed to comply with s 430(1) and 476(1)(a) of the Migration Act.

(3) There was no evidence to justify the making of the decision by the respondent in contravention of s 476(1)(g) of the Migration Act.

The respondent is the Refugee Review Tribunal.  There is no other respondent to the proceedings.

Nothing that was put forward in argument on behalf of the applicant demonstrated any basis for an argument in support of any of the grounds set out above.  Because the applicant is not legally represented, I have scrutinised the reasons for decision of the Tribunal with some care in an attempt to find whether there are arguments that might be advanced in addition to those put before the Court on behalf of the applicant in support of such grounds and I have been unable to find any.

In those circumstances, I consider that the application must be dismissed and that the applicant must pay the respondent's costs.

MR LLOYD:   Perhaps, your Honour, I can just indicate it should be the Minister's costs that needs to be paid and the Minister is not strictly a party.  Could the order be that the applicant pay the Minister's costs?

HIS HONOUR:   But if the Minister is not a party to the proceedings, I cannot hardly make an order in his favour.

MR LLOYD:   I mean, under the normal Hardiman principle, the Refugee Review Tribunal submits to the order of the Court.  The Minister then comes in to defend the decision.  So, the Minister is the correct party who should have been the respondent, or should have been a respondent, and came along and prepared on the basis of how it should have been done.  Perhaps the appropriate way is to amend it to allow the Minister to be a respondent and then make the order.

HIS HONOUR:   You mean that I should require the applicant to amend the proceedings to join the Minister as a respondent and then make an order for costs in the Minister's favour?  Is that what you are saying?

MR LLOYD:   Unless the Court's discretion under Order 71 rule 1 is just broad enough to allow costs to be ordered in favour of the Minister without him being a party.

HIS HONOUR:   What rule is that?

MR LLOYD:   Order 71 rule 1.  It simply says the costs "are in the discretion of the Court".

HIS HONOUR:   Has the Tribunal filed a submitting appearance?

MR LLOYD:   My understanding is that a letter has been written to the Court indicating that it will do it - strictly speaking, this application is an ex parte application.  The tradition has been and, in fact, the Court requires, as I understand it, the Minister to come along to defend the decision which, of course, the Minister wants to do.  So, in those circumstances, I do not know that an appearance has been entered but a letter has been sent.

HIS HONOUR:   And you, in fact, appear for the Minister?

MR LLOYD:   I appear both for the Minister and for the Refugee Review Tribunal but it is the Minister who has given positive instructions.  My appearance - - -

HIS HONOUR:   May I inquire of you:  bearing in mind the early stage at which this application has been dismissed, could you just explain to me why an order for costs in favour of the Tribunal does not cover your position?

MR LLOYD:   Well, because, I suppose - the costs would be the same, I suppose.  It has just been - - -

HIS HONOUR:   Yes, that is what I would have thought.

MR LLOYD:   I suppose all I can say is it is, strictly speaking, the Minister who will be paying the solicitors and myself, rather than the Tribunal because the Tribunal is just submitting to the order of the Court.  So, it is

the Minister's actual costs rather than the Tribunal's costs.  The Tribunal will not be paying and so a question arises whether or not - - -

HIS HONOUR:   It is very awkward when there is an unrepresented litigant to force the litigant to amend proceedings.  In fact, the prospects of an amendment actually being made pursuant to such an order strike me as being fairly remote.  Are you afraid that the taxing officer will take some point on you in relation to this?

MR LLOYD:   No.  I suppose the only issue is whether or not we would be entitled - whether or not the Minister would be entitled under the order, as your Honour proposed, to seek costs.  At the end of the day, it is a matter for your Honour.

HIS HONOUR:   Yes, I do not propose to alter the order that I have made.  I will certify for counsel.

MR LLOYD:   May it please the Court.

AT 12.27 PM THE MATTER WAS CONCLUDED