Iyer v MIMA S17/2001

[2001] HCATrans 590

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S17 of 2001

B e t w e e n -

NIRMALESWARAN SOMASUNTHARA IYER

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 20 NOVEMBER 2001, AT 2.15 PM

Copyright in the High Court of Australia

MR B.M. ZIPSER:   If the Court pleases, I appear for the applicant.  (instructed by Jamnadas & Associates)

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

KIRBY J:   Yes, Mr Zipser.

MR ZIPSER:   Your Honours, first there is a preliminary matter to deal with in this application in that the applicant seeks to raise two new arguments in the application for special leave that were not argued before the Full Court of the Federal Court.  The reason is as follows:  the new arguments are based on a decision of the High Court in The Minister v Yusuf, which was argued in November 2000.  The decision was handed down on 31 May 2001.  Prior to The Minister v Yusuf, it was unclear that these arguments that are put now could be raised before the Court.  The Minister v Yusuf has made that clear and that is why they are put now.

KIRBY J:   This is the case where there was a finding by the Tribunal that there was no subjective fear of return to Sri Lanka?

MR ZIPSER:   Yes.

KIRBY J:   Now, is that not a pretty difficult problem for you to overcome?

MR ZIPSER:   The applicant claims that there was error in that finding and the error can be explained in one of two ways.  One way, to use the language of The Minister v Yusuf, is that in considering the question of subjective fear of persecution, the Tribunal asked itself the wrong question.  The Tribunal’s finding is at page ‑ ‑ ‑

KIRBY J:   It would be hard to see how it could ask itself the wrong question on that particular issue because that issue lies at the threshold of attracting the Convention definition and thus the Act.

MR ZIPSER:   The question that the Tribunal asked, which is at page 26 of the application book, was whether the applicant had a genuine fear of persecution returning to Sri Lanka, and the question that it is submitted should have been considered and asked, in light of the facts of this particular case, is whether he had a subjective fear of returning to Sri Lanka with his son, in light of the fact that the particular type of persecution that he asserts is connected with extortion and forced recruitment of his son.

KIRBY J:   Yes, and dragooning young people into the Tamil Tigers, but that was a matter which had been argued before the Tribunal.  It is scarcely likely that the Tribunal would not have considered that in using the formula that it did because that was the essence of the matter that your client was putting to the Tribunal.

MR ZIPSER:   This Court’s consideration of the matter can be based upon the wording used by the Tribunal on the face of the decision and if one considers that wording at page 26 of the application book, in particular at lines 36 to 41, then there are two points to note.  The first point is that the Tribunal uses the term “the Applicant” rather than the “the Applicant and his son” or “the Applicant and his family”.  Secondly, the Tribunal states:

Having regard to the fact that the Applicant returned to Sri Lanka twice after coming to Australia –

the language suggests that at the time the Tribunal made this finding, it was considering the circumstances of the applicant himself and only himself returning to Sri Lanka and not with his son.  There is an alternative basis of making the same argument and that is that the question of whether an applicant has a subjective fear of persecution can be considered to be a mixed question of fact and law and there are other circumstances under the Act where findings are mixed questions of fact and law, for example, a finding on relocation.  The Court has developed a relocation principle and if the Tribunal were to misapply that principle, that would give rise to an error of law.  Similarly, in this case, a required aspect of a finding on subjective fear of persecution is that the Tribunal must assess the fear of persecution against each of the claims in relation to persecution made.  The submission then is the same that on the language at page 26, if one considers that language, then the Tribunal appears not to have considered the risk of persecution in connection with the applicant’s claim of extortion in connection with his son.

HAYNE J:   Now, where in the Tribunal’s decision do we find reference to the significance of the son?  I see at page 7, lines 46 and following, there is a reference, but are there other references to which I should pay regard?

MR ZIPSER:   There is one reference at the bottom of page 7, as your Honour has noted, and there is another reference on page 6 at lines 16 to 23.

HAYNE J:   I should say to you I had read the Tribunal’s decision as focusing upon a claim at page 7, lines 21 and following, that there was particular risk to the applicant because he was a priest, not because of any particular difficulty presented by the child.

MR ZIPSER:   The applicant made a number of claims.  One claim which is at line 21 of page 7 is on the basis that he was a priest.  Another claim made on the same page at line 46 is a submission that the applicant was worried that his son would be forcibly recruited by the LTTE and, on my understanding of the Tribunal’s decision, that is not a claim connected with the applicant being a priest but with the son being of forcible recruitment age.  It is submitted also at page 6, the factual basis is laid, where the applicant states that he had experienced extortion in the past.  This is at page 6, lines 16 to 23.

Given that he had made the claim before the Tribunal that he had experienced extortion in the past, it was incumbent on the Tribunal in order to properly carry out its function to consider whether there was a real chance that he would face extortion in the future.  Those are the applicant’s submissions.

KIRBY J:   Yes.  The Court does not need the assistance of the respondent.

The Refugee Review Tribunal found that the applicant did not have a subjective fear of returning to Sri Lanka.  The applicant contends that this formulation did not address the correct question.  It is suggested that this question was whether the applicant had such a fear of returning to Sri Lanka with his son, a youth of an age liable to be pressed into military service by the LTTE (Tamil Tigers).  In our view, that distinction in the context involves the over‑pernickety analysis of the reasons of the Tribunal which this Court has repeatedly deprecated:  see eg Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271‑272, 291‑292.

Having regard to the issues fought before the Tribunal and to the fact that the applicant returned to Sri Lanka twice, despite his propounded fear, we do not consider that his application warrants the grant of special leave.  Special leave is therefore refused.  The applicant must pay the respondent’s costs.

AT 2.26 PM THE MATTER WAS CONCLUDED