NAAT of 2002 & Anor v MIMIA

[2003] HCATrans 537

[2003] HCATrans 537

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S27 of 2003

B e t w e e n -

NAAT OF 2002 AND NABB OF 2002

Applicants

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 DECEMBER 2003, AT 9.55 AM

Copyright in the High Court of Australia

MR A.P. JOSEPH:   If the Court pleases, I appear with my learned friend, MR S.V. KERRIGAN, for the applicant.  (instructed by the applicant)

MR. J.D. SMITH:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

KIRBY J:   Yes, Mr Joseph.

MR JOSEPH:   If the Court pleases, the question said to arise by the applicant for special leave in this matter relates to the failure, we say, of the Tribunal to exercise its jurisdiction under the Migration Act by not taking into account the sur place element of the applicant’s claim.  In this case it was the failure to take into account the fact that names and details had been published in an earlier decision by Justice Hely on 28 February 2000.

KIRBY J:   This is published on the Internet with the name of the applicant identified?

MR JOSEPH:   Yes, that is correct, your Honour.

KIRBY J:   Is this the only matter you are now pressing in this application?

MR JOSEPH:   It is the only matter.

KIRBY J:   And is that a matter that was pressed at any stage in the earlier proceedings?

MR JOSEPH:   To the best of my knowledge, no, your Honour.

KIRBY J:   Why would this Court deal with such an issue in a case where it has not been pressed in the Federal Court where we would then have the advantage of the reflections of the Federal Court of Australia on the point?

MR JOSEPH:   The only response to that, your Honour, is that the Court has made it plain in previous decisions that there is a discretion to allow in the High Court fresh grounds not previously raised to be raised on appeal.

KIRBY J:   That is true but that is always seen as exceptional because we have more than enough to do including in this field of the law without, as it were, struggling on without the help of the court which has the primary responsibility in this area, namely the Federal Court.

MR JOSEPH:   Yes.  The only other point I might put would be in essence that in considering the issue of jurisdictional error, it is beholden of those courts reviewing the decisions to take into account whether relevant questions have been asked, and we would submit that in ‑ ‑ ‑

KIRBY J:   But if relevant issues have not been posed, then you cannot be very critical of a court for not, as it were, having dreamed them up themselves.

MR JOSEPH:   I concede that is so, your Honour.

KIRBY J:   I could accept that there would be some barbarous and violent and horrible countries where this could be a relevant matter, but would one put Sri Lanka, as at the date of the decisions here, into that category?  I would not think so.

MR JOSEPH:   Without giving evidence from the Bar Table, your Honour, it is a changing situation in that country.  I would concede it might change from region to region.

KIRBY J:   I am just saying if I am being candid that one’s response to the attempt to add an entirely new ground at the last stage in a very lengthy process of litigation might be more attractive in certain factual circumstances than in these factual circumstances, where really the essence of the claim for refugee status seemed to turn upon the ethnicity of your female client’s mother, therefore of herself.  That does not seem to have been, as it were, the most acute factual springboard on which to present this issue to us.

MR JOSEPH:   Yes, I appreciate the point that your Honour is putting.

KIRBY J:   I do not have to persuade you and you have to speak for your client. We have read the papers very carefully but if you look at it from the point of view of this Court, an issue raising an objection about the Internet is one of general concern that might arise in other cases and, if so, will be argued and debated in the Federal Court and we as the final appellate court of the nation would then be in a better position to deal with any issues that it presents than we are in your clients’ cases.

MR JOSEPH:   Yes.  I concede that in this case, your Honour, the applicants were represented at the Tribunal and have been represented since that time.  In essence though, the question that arises is one that we say would arise in many circumstances, not necessarily with this factual situation but in many circumstances where events occur whilst persons are in Australia, in our case, either in their home country or here in Australia which might change their circumstance.  That is not a matter, to the best of my knowledge, that the Court has considered in detail.

KIRBY J:   Yes, very well.  Is there anything else you wish to say?

MR JOSEPH:   No, if the Court pleases.

KIRBY J:   Thank you for assisting the Court, Mr Joseph.

MR JOSEPH:   If the Court pleases.

KIRBY J:   The Court does not need your assistance, Mr Smith.

The applicants, nationals of Sri Lanka, seek special leave to appeal to this Court from orders of the Full Court of the Federal Court of Australia.  That court was constituted in this case by Justice Allsop.  His Honour rejected an appeal against the primary decision of the Federal Magistrates Court refusing judicial review of the decision of the Refugee Review Tribunal.  That Tribunal, in turn, had declined to disturb a decision of a delegate of the Minister refusing the applicants a protection visa sought on the basis that they were refugees.

Before the Tribunal and the Federal Court the applicants presented their case on the footing that they were entitled to refugee status by reason of events which they alleged had occurred in Sri Lanka by reason of the ethnic derivation of the female applicant.  Her mother is of Tamil ethnicity.  The Refugee Review Tribunal accepted that the male applicant had been harassed and had lost his job at the Colombo International Airport.  However, it did not accept that there was a real chance that the applicants would encounter the same difficulties if they returned to Sri Lanka.

The Full Court of the Federal Court, Justice Allsop, concluded that, in effect, the applicants were attempting to turn a complaint about fact finding in the Tribunal into a legal construct.  Such a case was a most unpromising vehicle for an application for special leave from this Court.  Recognising this, counsel for the applicant appearing before this Court presented a new issue.  That issue concerned whether the publication of the names of the applicants in the previous proceedings in the Tribunal and Federal Court would now present added difficulties for the applicants which would constitute persecution.  It was suggested this was a matter that ought to have been considered by the Federal Court.  Its failure to consider that issue was said to be an error of jurisdiction, or a constructive failure to exercise jurisdiction. 

It was accepted that the new point was never raised in the Tribunal or in the Federal Court.  It is true, as the applicants said, that this Court can provide leave to add new grounds.  A consideration relevant to that application is the seriousness of the consequence of refugee decisions for those who make them.  They make such applications under the Migration Act 1958 incorporating the Refugees Convention.

On the other hand, to allow the point now to be raised in the Court would have two significant disadvantages.  First, it would mean that the factual substratum for any particular perils or dangers said to be suffered by the applicants by reason of the publication of names on the Internet, was not laid.  This Court would have to struggle with the issue without the presentation of a proper factual foundation for consideration of the issue.  One can imagine countries where evidence could be given of particular dangers by reason of publication in the Internet.  Indeed, I have a recollection of such a case coming before me some years ago.  The evidence would not be available in this case.

Furthermore, by reason of the fact that the issue was not raised in the Federal Court, this Court does not have the benefit of the consideration of the issue by the Federal Court, either as a matter of general principle or as addressed to the particular circumstances of this case. 

Accordingly, we are not convinced that the added ground adds weight in circumstances to the application that is before us.  That application as originally presented did not attract a grant of special leave.  It follows that the application must be refused.  The applicants must pay the Minister’s costs.

AT 10.07 AM THE MATTER WAS CONCLUDED