Minister for Immigration and Citizenship v SZRKT

[2013] HCATrans 251

[2013] HCATrans 251

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S88 of 2013

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Applicant

and

SZRKT

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 OCTOBER 2013, AT 1.59 PM

Copyright in the High Court of Australia

MR G.T. JOHNSON, SC:   May it please, your Honours, I appear for the applicant with my learned friend, MR J.D. SMITH.  (instructed by Minter Ellison)

MR T.A. GAME, SC:   If the Court please, I appear for the first respondent with MR R.M.T. CHIA.  (instructed by Fragomen)

BELL J:   Yes, Mr Johnson.

MR JOHNSON:   Your Honours, firstly, the name of my client has very recently changed to the Minister for Immigration and Border Protection.  I wonder if I could ask the Court, by consent, to note that.

BELL J:   Yes, noted.

MR JOHNSON:   Thank you, your Honours.  Your Honours, this is a case, you will have observed, where the Federal Court of Australia found jurisdictional error by the Refugee Review Tribunal in not considering a particular document.  The document has been referred to in shorthand, both as an academic transcript and it has also been referred to, for the sake of brevity, in the applicant’s submissions as the card.  It is set out in the book before your Honours in both judgments – the federal magistrate at page 30 of the application book and his Honour Justice Robertson, starting at the very foot of page 65 and going over to page 66.

Just for the moment, your Honours will note that it is, in effect, a document setting out results from the University of the Punjab.  If your Honours go to page 66, line 32 of the book, your Honours will see that one of the subjects that he studied was “Persian (Optional)” and then the score is recorded in the columns opposite.

I will come very shortly to the very few paragraphs of the Tribunal’s reasons that are relevant for present purposes and I will also take your Honours to some brief transcript references.  Could I just note by way of introduction that there are, of course, two special leave questions said by the applicant to arise and those are set out in paragraph 1 of the applicant’s summary of argument at page 120. 

The first of those questions relates to the way in which his Honour found jurisdictional error by the Tribunal in not considering the document that I have just taken your Honours to.  In the applicant’s submission, his Honour found it to be jurisdictional error because his Honour considered it to be important or substantial and coherent, or cogent ‑ ‑ ‑

BELL J:   It was the gravity of the error having regard to the significance that the Tribunal placed on that finding.

MR JOHNSON:   Yes, on the finding in relation to the applicant’s credibility.  Yes, that is correct.

BELL J:   Indeed.  I think at paragraph 78 – this is application book 88 - his Honour rejected the view:

that a finding in relation to credit may never found a conclusion of jurisdictional error ‑ ‑ ‑

MR JOHNSON:   Yes, that is correct.  Could I just say that the applicant’s present case does not necessarily ask the Court to accept that broad proposition?  What we do say, however, is that to find jurisdictional error upon the basis that the court’s own view of an item of evidence was that it was cogent and important and therefore should have been given a greater place in the Tribunal’s fact finding that that is jurisdictional error.

Before I just move briefly to the other documents that I was going to take your Honours to, I will just note the second question which is formulated at page 120 of the application book.  That relates to his Honour’s finding that the document was not considered by the Tribunal.  His Honour described that as a finding of ordinary fact finding but what we say, as is brought out, I hope, by question 1.2 on page 120 is that there was an error or principle involved in that in that the Tribunal had no obligation, under section 430(1) of the Migration Act, to refer to the document in its reasons.

KEANE J:   Well, not standing alone, but if they are going to make a finding of fact that is critical to their determination and there is a piece of evidence that contradicts the finding of fact they wish to make, does it not go to the integrity of their decision that they failed to do so?

MR JOHNSON:   I think the answer to that is twofold, your Honour – firstly, with respect to the requirements of section 430.  Section 430(1)(d) requires the Tribunal to state that the evidence upon which its findings on material fact are based.  It does not require the Tribunal to deal with the competing body of evidence.  There is another paragraph of section 430(1) which requires the Tribunal to state its reasons and in some cases the rejection of other material might be one of the reasons for the decision, in which case the section requires it to be stated, but in this case, for reasons which I will shortly explain as I go through the facts, this is simply not such a case.  The Tribunal could have made the finding of fact in question, completely unaffected by the card, even if it totally accepted the card.  There is no necessary contradiction between the Tribunal’s finding of fact and the card.

BELL J:   Can I just take that up with you by reference to the contents of the Tribunal’s reasons at paragraph 46, application book 16?

MR JOHNSON:   Yes.

BELL J:   The Tribunal there states its belief that the applicant:

has not been truthful about his former study in that country

It describes him as claiming in his written application that over the two‑year period -

he was involved in private study through Punjab University which he did at this home.

Then it goes on to again refer to the claim -

to the tribunal to have undertaken two years of tertiary level study in the Persian language during this period.

MR JOHNSON:   That is correct.

BELL J:   Then to its observation that he was unable to say or write any Persian word when asked to do so.  But in the face of the transcript from the Punjab University, it does not appear to have been in doubt that he had in fact undertaken studies at the Punjab University in the period claimed in the subjects that he claimed.

MR JOHNSON:   Yes, yes, but two things ‑ ‑ ‑

BELL J:   There is a flavour, is there not, to paragraph 46 of not accepting the two‑year study at the Punjab University which, after all, was relevant to his claim about his capacity to have avoided recruitment by the jihadists was a significant matter?

MR JOHNSON:   Yes.  Just taking up on what your Honour just said, we do not run away from the fact that if one goes back to page 5 of the application book -– this is a part of a very, very long statement that I do not propose to spend any more than a few seconds on – but if your Honours go to line 38 at page 5, your Honours will see that what he is saying in his statement is:

My father who is a peace loving person agreed to educate me and I joined the Punjab University and studied from home privately.  My father convinced the Maulana brothers that I wished to study further and I should not be interrupted.

So the fact that he was undertaking this course was, in effect, put by him as, in effect, how he was able to avoid going and joining the militants to be trained.  We accept that, your Honour.  But returning to the particular paragraph that your Honour has focused upon, which is the critical paragraph in the Tribunal’s reasons, the Tribunal does not say in that paragraph that the Tribunal does not accept that he did not attend the University at all.  It does not say that it does not accept that he attended any particular course or passed any particular exam that the academic transcript or the card suggests.

What the Tribunal says is that he claimed to have undertaken two years tertiary level study in the Persian language and I would underline those words “in the Persian language” during this period.  When asked by the Tribunal whether he could say or write any Persian word, he was not able to do so.  So the conflict that the Tribunal is talking about is actually a conflict within the oral evidence given by the applicant to the Tribunal. 

Before I take your Honour to the transcript to make good that submission, could I just take your Honour to two other sentences in the reasons just to fully complete the extent to which the reasons are relevant to the matters that your Honour needs to worry about.  If your Honours go to paragraph 47 of the reasons on page 16, the Tribunal there says:

In the tribunal’s view, had the applicant spent two years studying the Persian language –

Again, I emphasise “language” -

at tertiary level so recently he would have been able to recall a Persian word, either in writing or in speech. 

Then in the balance of the paragraph it rejects his explanation.  Then the last paragraph that I want to take your Honours to is paragraph 26 which is back on page 9 of the application book.  There the Tribunal explains – I will start at line 28, I think it is, on page 9 of the book.  The Tribunal says:

He commenced arrangements for this study in 2006 and studied Persian language for two years.

Now, bear in mind this is an account of the evidence that he is giving to the Tribunal.  The first line of paragraph 24 makes that clear.  Then the Tribunal says:

Asked whether he could speak or write any Persian words, he indicated that he could not. 

Then an explanation is offered which is recorded.  So the conflict seems to be between having studied Persian language and not knowing a word of Persian.  When one goes to the transcript which Justice Robertson relevantly extracts – if your Honours go back to page 67 of the book and if your Honours go down to line 48:

TRIBUNAL              And what were you studying?

APPLICANT:           I was studying education, journalism and Persian.

TRIBUNAL              Sorry, what was the last word?  Persian.

APPLICANT:           Persian language.

So the applicant is plainly saying that he is studying Persian language.

BELL J:   Was this through an interpreter?

MR JOHNSON:   It was.  It was, your Honour, it was. 

BELL J:   Yes.

MR JOHNSON:   And with all of the uncertainties ‑ ‑ ‑

BELL J:   Then he goes on to explain that his studies in the subject described in the transcript as “Persian (Optional)” were conducted in the Urdu language.

MR JOHNSON:   He does not, actually, address the content of “Persian (Optional)”.

BELL J:   I appreciate that.

MR JOHNSON:   Yes.

BELL J:   But the matter I am taking up with you is a matter of practical common sense.  He is giving an account that his studies in Persian – whatever that may mean – were conducted in Urdu.

MR JOHNSON:   He is saying that.  In the paragraphs that your Honour has already gone to, your Honours will see that the Tribunal ultimately noted but rejected that explanation.  But he does say, as I have taken your Honours to, that one of the things he was studying was Persian language.  Then on the next page – page 68 of the book – starting about 13 lines down, the Tribunal asks:

And so you are able to write in Persian are you -

to which he answers –

No I don’t understand it, I can’t write.

TRIBUNAL              I thought you said you studied Persian?

APPLICANT:           Yeah there are some language and some other things we have in Persian . . . 

TRIBUNALRight, I thought you said you study Persian languages, the Persian language?

APPLICANT:           Ah the language is not in that matter it is that it is about some kind of things –

So there is some ambiguity about this evidence.  Then, further down, he says – this is at line 36 -

I don’t know any Persian words.

It may very well be that this evidence could have been taken different ways – different inferences – different factual conclusions could have been drawn from it.  But amongst it there is evidence from him, oral evidence from him that one of the things he was studying was Persian language.  There is also oral evidence from him that he does not know a word of Persian and the transcript, or the card, which occurs earlier, does not illuminate that question.  The transcript does not tell us whether the course, “Persian (Optional)” was Persian language, on the one hand, or Persian history or Persian culture or Persian culture and ‑ ‑ ‑

KEANE J:   Persian studies.

MR JOHNSON:   Or Persian studies, that is right.

KEANE J:   It is not unfamiliar that university courses are offered in cultural studies – Persian studies, Latin studies, Greek studies – where the students do not actually learn the language.

MR JOHNSON:   Yes.

KEANE J:   What he was saying is perfectly consistent with this having been one of those sorts of courses.  What you say about the resolution of the oral evidence might have some force if the Tribunal had actually referred to the card.  It is the fact that they did not refer to it and reached this conclusion which was a conclusion that they treated as a killer point in terms of the truthfulness of his account that is the problem.

MR JOHNSON:   The Tribunal would have, in my submission, been entitled to base that credit finding upon the particular contradiction in oral evidence without referring to the card because the card does not necessarily resolve or does not resolve that conflict.  One could look at the card and say well, that does not help in one way or the other to say whether he was studying Persian.

KEANE J:   Well, why does it not corroborate the notion that he was studying Persian in one of its manifestations?

MR JOHNSON:   It corroborates that, your Honour, but not that ‑ ‑ ‑

KEANE J:   And that the manifestation is Persian studies – not Persian language – as we would take it.

MR JOHNSON:   Yes, but it does not corroborate that he was studying Persian language.  I agree it is - he is studying one of these forms of Persian, be it culture or history or whatever.

KEANE J:   That is how he is spending his two years.

MR JOHNSON:   Yes, but it does not confirm that he was studying Persian language.

BELL J:   But what difference does that make in the real world, Mr Johnson?  If one goes back to paragraph 46, the Tribunal’s rejection of the truthfulness of the applicant is with respect to his former study in that country, namely, his former study for two years at home through the Punjab University.  The certificate suggests there is no reason to doubt that.  It would be a curious process, surely, to accept that he had studied “Persian (Optional)” – whatever that might mean – and obtained marks of 87 out of 100 for that subject, but chosen to lie that it was the study of Persian language as distinct from Persian society or culture.

MR JOHNSON:   But what I am putting to your Honour is that the credit finding does not extend to him not having studied at all, or not having attended the University.  What I am putting to your Honour is the credit finding is limited to this conflict between him saying, “I studied Persian language and I do not know a Persian word”.

BELL J:   Does that arise, Mr Johnson, because if one is testing a person’s truthfulness of having undertaken tertiary studies at home for two years in things as vague as education and journalism, the killer point is to test when they say they have studied Persian language whether they can speak it.  Surely, the attack was an attack directed to his truthfulness that he had spent two years studying through the Punjab University.

MR JOHNSON:   Your Honour, not necessarily.  There is no doubt – we do not squabble for a moment, your Honour, that different fact finders could have treated this evidence differently, but what we say is that it has no absoluteness about it.  What we say is also – what we are talking about is evidence which goes to a factual finding as to credibility.  It is not in the realm of a relevant consideration in the Peko‑`Wallsend sense.  It is not in the realm of a claim in the sense of a statement which, if accepted, would mean that the applicant was entitled to a protection visa.  So it is quite different from the sorts of situations or sorts of things that were ignored in cases like Dranichnikov in this Court and in Htun in the Federal Court.  

BELL J:   But this was the basis of the rejection of his claim, that is, the first basis for dismissing him as a credible witness ‑ ‑ ‑

MR JOHNSON:   Yes.

BELL J:   ‑ ‑ ‑ respecting his protection claims was this matter.  When one goes to Justice Robertson at paragraph 111, application book 100, one sees that his Honour rejects the idea of some rigid taxonomy between claims and evidence in support of it.  That is, his Honour says:

the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself.

Do you challenge that?

MR JOHNSON:   Your Honour, we do challenge that in that if the factual finding is one which is not a claim – sorry, if the matter which is alleged to have been overlooked is not something which if accepted would have led to him being a refugee, then the Federal Court cases to which we refer would suggest that even though the court might consider it to be probative that is not a jurisdictional error. 

What we say to your Honours is that to put the test as his Honour ultimately does in paragraphs 111 and 112 - and that seems to be the germ of the judgment, on our reading - to put the test as his Honour does there not only conflicts with the particular line of cases that we refer to but also, we say, that it tilts the pendulum, if you like, in such a way as to become merits review, that if the existence or otherwise of jurisdictional error depends upon the view that the judge in subsequent review takes of the cogency of particular evidence, its importance, all in the face of findings and evidence which is really quite ambiguous, that that is going too far.  That is the point that we want to test. Your Honours, I must be nearing the end of my 20 minutes, I think.  

BELL J:   Yes, I think you are, Mr Johnson.

MR JOHNSON:   Over it.  Could I just say I have nothing to add to the written submissions in relation to the second point?

BELL J:   Thank you. 

KEANE J:   The applicant seeks special leave to appeal to this Court in order to agitate questions as to the scope of the concept of jurisdictional error on the part of the Tribunal where the error is said to consist of a failure to consider relevant material.  No question of law of general importance arises on the application.  The learned Federal Court judge, Justice Robertson, in a careful judgment was at pains to make it clear that to ignore relevant material is not necessarily to fall into jurisdictional error.  His Honour’s conclusion was based upon his Honour’s view of the significance of the error that was made in this particular case.  The decision below turned on the evaluation of the significance of matters of fact for the decision by the Tribunal.  The application does not raise any question of law of sufficient importance to warrant the grant of special leave to appeal.  The application for special leave to appeal should be dismissed with costs.

AT 2.24 PM THE MATTER WAS CONCLUDED