NABE v MIMIA

[2003] HCATrans 364

[2003] HCATrans 364

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S343 of 2002

B e t w e e n -

NABE

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 SEPTEMBER 2003, AT 11.59 AM

Copyright in the High Court of Australia

MR J.L. CAMERON:   May it please the Court, I appear for the applicant.  (instructed by the applicant)

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

GLEESON CJ:   Yes, Mr Cameron.

MR CAMERON:   There is an application for an extension of time according to my calculation ‑ ‑ ‑

GLEESON CJ:   Is that opposed, Mr Lloyd?

MR LLOYD:   It is not opposed, your Honour.

GLEESON CJ:   Yes, you have that.

MR CAMERON:   Thank you, your Honour.  I also seek leave to amend the application for special leave and the grounds, which were prepared by the applicant without the benefit of legal advice and I ‑ ‑ ‑

GLEESON CJ:   This is in a document filed on 10 September.

MR CAMERON:   That is right.

GLEESON CJ:   Is that opposed, Mr Lloyd?

MR LLOYD:   No, it is not, your Honour.

GLEESON CJ:   You have that leave.

MR CAMERON:   Thank you, your Honour.  There were two limbs to the applicant’s application for a protection visa based on past persecution, past mistreatment, firstly by what he had called the authorities, from which I understand he meant State authorities in Sri Lanka, and second by an organisation known as the People’s Liberation Organisation of Tamil Eelam, which is referred to in the application book by the acronym “PLOTE”.

His Honour Mr Justice Tamberlin at first instance in the case found that the Tribunal had considered the applicant’s claim only on the basis of mistreatment by the authorities and had not considered mistreatment by Tamil Eelam – I will refer to PLOTE as Tamil Eelam.

GUMMOW J:   Where do we actually see this?  About page 24, is it, of the book?

MR CAMERON:   Yes.  So his Honour found that there was a “constructive failure to exercise jurisdiction” because of the failure to consider the second limb and his Honour also found that had the second limb been considered there might have been a different outcome to the applicant’s application for review.

GLEESON CJ:   Does this appear further from the bottom of page 35?

MR CAMERON:   Yes, it does, your Honour.  It is set out more clearly, perhaps, on 35 where his Honour said at line 54:

On the material I have referred to, other statements by the applicant and the relevant part of the transcript of the hearing before the RRT which was tendered in evidence, I am satisfied that there was an error by the RRT –

and it continues over the page and, of course, there was material before his Honour Mr Justice Tamberlin which was not before the Full Court on appeal –

which could have affected the outcome because it bears directly on the question whether there were grounds, based on past persecution, for the applicant believing there is a real risk of persecution if returned.

It would be our submission that that error goes to jurisdiction insofar as there was a failure to exercise jurisdiction by considering the application ‑ ‑ ‑

GLEESON CJ:   Just before you go any further, I just want to look into the facts.  If you look a little further up on page 35 the delegate referred to the claim by the applicant that he was dealt with badly, if I could use that expression, by PLOTE.

MR CAMERON:   Yes.

GLEESON CJ:   What makes it clear that the RRT, as it were, overlooked that claim or misunderstood that claim and dealt only with the claim that he was tortured by the authorities?

MR CAMERON:   Because if one goes to the decision of the Tribunal, while the Tribunal notes that PLOTE was responsible for disappearances and extrajudicial killings as claimed by the applicant – and there was evidence before the Tribunal of that – when it actually goes to consider whether the applicant’s fears were well‑grounded, it only looks at activities of the security forces.  It does not consider the activities of PLOTE.  That is where the error which was found by his Honour Justice Tamberlin resides and it would be our submission that it is that error upon which the applicant would seek to appeal.

GLEESON CJ:   Did Justice Tamberlin find that the error referred to on the top of page 35 in the first paragraph there was an error that was made?

MR CAMERON:   Yes, he did, your Honour.

GLEESON CJ:   And was that then dealt with by the Full Court on page 294 in the first complete sentence on that page?

MR CAMERON:   It was dealt with by Justice von Doussa to the extent that he agreed with Justice Wilcox and Justice Wilcox embarked upon a re‑examination of the facts while at the same time conceding that all of the materials which were before the primary judge, Mr Justice Tamberlin, were not before the Full Court and none of the other judges in the Full Court appeared to agree with that examination.  There was no notice of contention filed and so far as the Full Court was concerned that error of fact was held to be accepted.

GUMMOW J:   What is the core of Justice Wilcox’s reasoning for there not being jurisdictional error?  Where does that appear, which page?

MR CAMERON:   It starts at 155 where his Honour examines the evidence in relation to the NABE appeal, but essentially, if one goes to page 158, paragraph 342, his Honour says:

So far as I can ascertain, at no time did NABE claim a fear of persecution at the hands of PLOTE, as distinct from the “authorities”. 

That is quite contrary to the finding of Mr Justice Tamberlin on the material which was before him which included a transcript and other statements, but which, as I understand it, was not before the Full Court.

Although Mr Justice von Doussa agreed with Justice Wilcox on the question of jurisdictional error, his Honour does not appear to have agreed or to have considered whether there was an error at all and essentially what Justice Wilcox is saying, “There was no error, therefore there was no jurisdictional error, therefore it is not necessary for me to consider the application of section 494”, whereas the other judges took a different approach.

GLEESON CJ:   On page 158 in paragraph 344 Justice Wilcox refers to and disagrees with Justice Tamberlin’s view that the Tribunal fell into jurisdictional error.  Where do we find Justice Tamberlin expressing that view?

MR CAMERON:   Essentially, it is the passage to which your Honour referred me earlier at the bottom of page 35.

GLEESON CJ:   If you look at the following paragraph, that seems ‑ ‑ ‑

MR CAMERON:   He then goes on to apply what I might call the Hickman test as the proviso.

GUMMOW J:   The trouble with this case is that the Full Court has not directed itself to the law as it stands after our decisions in February this year.

MR CAMERON:   That is right.

GUMMOW J:   And they got enmeshed in Hickman.

MR CAMERON:   Yes.

GUMMOW J:   The question really is whether there was a constructive failure to exercise jurisdiction because the RRT did not understand what was being put forward as the necessary facts to constitute the persecution.

MR CAMERON:   Yes, so to some extent it is on all fours with Dranichnikov, where in fact there was – in this case it is a question of the persecution on two past bases, past persecution, and the court only considered one.  In Dranichnikov the court considered membership of one class but did not consider membership of the subclass of Russian businessmen who complained about corruption and had accordingly suffered mistreatment.  The court in Dranichnikov got the wrong class.  It did not look at the subclass.  But in each case it would be my submission that was jurisdictional error for the same reason, in other words a failure to exercise jurisdiction by examining the claim which was put forward by the applicant in terms of section 47 of the Act.

GUMMOW J:   Are these Full Court decisions the same batch of cases that involve NAAV, which was No 1 on the list this morning?

MR CAMERON:   They are, yes.

GUMMOW J:   That is going back by consent, but this is not.

MR CAMERON:   Is it?  Apparently not.

CALLINAN J:   Where do you say the Tribunal’s error appears?  Is it at the bottom of page 7 and page 8?

MR CAMERON:   Well, essentially, no, it is an error of omission rather than error of commission.

CALLINAN J:   There is no complaint made about the confusion on the part of the Tribunal with respect to PLOTE and LTTE?

MR CAMERON:   No.

CALLINAN J:   No complaint about that at all.

MR CAMERON:   PLOTE was a militia which was associated with the central authorities in Colombo and LTTE, the Liberation Tigers of Tamil Eelam, were a separatist group based in the north of the country and on each occasion in which the applicant claimed to have been mistreated it was upon suspicion of having been associated with the Tamil Tigers.

CALLINAN J:   Is there any reference to past persecution at all in the Tribunal’s decision?  What about at page 18:

There is no doubt that Tamils have often been at risk of persecution in Colombo and elsewhere in recent years.

MR CAMERON:   But, again, if one looks at the evidence upon which one bases that, the Tribunal is only looking at persecution by the central authority, in other words by the State.

CALLINAN J:   So you are saying past persecution by – what was actually ‑ ‑ ‑

MR CAMERON:   There were two levels.  There was past persecution by PLOTE and past persecution by the security forces associated with the central government.

CALLINAN J:   And you say that the Tribunal did not have regard to either of those.

MR CAMERON:   No, it had regard to the first of those, in other words, persecution by the security forces, and when one looks at all the evidence that the Tribunal examined ‑ ‑ ‑

GUMMOW J:   But PLOTE is a body associated with government interests or it might do.

MR CAMERON:   Is associated, exactly, yes.

CALLINAN J:   Well, does not that make what I drew your attention to on pages 7 and 8 relevant?  I am just having a little trouble, I am sorry, understanding the precise formulation of what you say the Tribunal failed to deal with.

MR CAMERON:   Because, in my submission, it failed to deal with the possibility of further persecution by PLOTE if, in fact, the applicant should be returned.  The Tribunal considered ‑ ‑ ‑

CALLINAN J:   Because he had been persecuted by PLOTE in the past.

MR CAMERON:   In the past, and he had been persecuted by the authorities in the past.  The Tribunal went through the improvements in control of the security forces as a result of various political agreements which had been reached, but never considered ‑ ‑ ‑

CALLINAN J:   But what about this finding:

In weighing all the relevant information the Tribunal concludes that the applicant has fabricated his claim of involvement with the LTTE and of continuing problems with the authorities due to his association with the LTTE or PLOTE.

There is a finding of credibility against him.

MR CAMERON:   Well, there is a finding of credibility in respect of persecution by the authorities but, in my submission, there is no finding in respect of possible further persecution by PLOTE.

CALLINAN J:   Well, “or PLOTE” it says.  I know it says “association”, but the persecution by PLOTE would be because of a suspicion that he was associated with LTTE.

MR CAMERON:   Yes, that is correct.

CALLINAN J:   But his “claim of involvement with the LTTE and of continuing problems . . . due to his association with the LTTE” have been rejected as a matter of fact by the Tribunal.  He just has not been believed on that.

MR CAMERON:   Yes, but not in respect of his association with “and past persecution by PLOTE”.

GLEESON CJ:   Is this all on the assumption that if we look at page 9, line 11 the words “by the authorities” do not include by PLOTE?

MR CAMERON:   Do not include by PLOTE.

GLEESON CJ:   Is that common ground?  I do not know enough about the facts to know whether that is self‑evidently correct.  Justice Tamberlin seems to have treated it as correct because if you look at page 35 he says:

The applicant submits that the error relied on is that the claim made by him was that he was detained by the PLOTE . . . and not by the authorities.  This . . . points to jurisdictional error ‑ ‑ ‑

MR CAMERON:   I am in some difficulty because this is my first appearance in the matter.

GLEESON CJ:   Yes, but is it right that PLOTE are separate from the authorities?

MR CAMERON:   PLOTE would be, in my view, separate from the authorities because they are, in fact, a militia which is associated with the authorities but which, I imagine, since it is responsible for extrajudicial killings, the authorities would seek to disassociate themselves from.  That is where the difficulty raised by Justice Callinan resides because, in considering the possibility of future persecution by the authorities, the Tribunal looked at the improvements which have taken place.

CALLINAN J:   But he has been rejected anyway.  If you look at page 9, line 31:

The applicant has provided no satisfactory reason as to why he would have returned to Vavuniya.  He claims it was to escape mistreatment –

There are all sorts of credibility findings in ‑ ‑ ‑

MR CAMERON:   There are credibility ‑ ‑ ‑

CALLINAN J:   So that really his claims as to what happened in the past have to be taken as having been rejected, whether it was persecution by the authorities or persecution by the PLOTE or by anybody else.  He just has not been believed as to his account of what he claimed happened before he left Sri Lanka.

MR CAMERON:   Yes, but in that event I would simply have to rely, and in my submission it would be appropriate to rely, on the finding of Mr Justice Tamberlin who had all of the evidence before him and found that it was an error which could have affected the outcome because the evidence in respect of PLOTE had not been properly assessed by the Tribunal, although it had been properly assessed ‑ ‑ ‑

CALLINAN J:   It does not have to be assessed if, in fact, he is completely rejected.  His whole account has been rejected.

MR CAMERON:   I could not accept, with respect, that his whole account has been rejected because there is no evidence there in respect of possible persecution by PLOTE and, in fact, what his Honour relied on was going back to the finding of the delegate, and the delegate’s decision was before his Honour but not before the Full Court.  The delegate’s decision was that the delegate accepted that he had been ‑ ‑ ‑

CALLINAN J:   Well, at the top of page 10:

the Tribunal is not satisfied that he has the residential history in recent years or the pattern of travel claimed by him at the hearing.

So if he was not where he said he was, he could not have been persecuted by the PLOTE there, could he?

MR CAMERON:   I can only refer your Honours to the passage on page 35 in the decision of his Honour Justice Tamberlin where there is a reference to arrest by the PLOTE people:

“The applicant claims that Vavuniya was under Sri Lankan Army control and that whilst in Vavuniya he was arrested by PLOTE people.  The applicant claims that he was arrested by PLOTE because persons who came from Mullaitivu were suspected of being LTTE –

but none of that was ever put to ‑ ‑ ‑

CALLINAN J:   But if I claimed that I was residing in Rome in 2000 and I was beaten up in Rome in 2000 and I was disbelieved that I was in Rome, then how could anybody make any finding in my favour that I was beaten up there in 2000?

MR CAMERON:   With respect, the Tribunal accepted that he came from Jaffna and that he was in Vavuniya.

CALLINAN J:   But did not accept his “residential history in recent years”.

MR CAMERON:   In Colombo?

CALLINAN J:  

not satisfied that he has the residential history in recent years –

I do not know how far that goes back –

or the pattern of travel claimed by him at the hearing.

MR CAMERON:   Yes.

GLEESON CJ:   Where did he say he was when he was arrested by the PLOTE?

MR CAMERON:   In Vavuniya which is up in the Jaffna Peninsula.  He later came from the Jaffna Peninsula to Colombo.

CALLINAN J:   When did he do that?  When did he say he came to Colombo?

MR CAMERON:   January 1999, as I recall.

CALLINAN J:   When did he come to Australia?

MR CAMERON:   He came to Australia in 2001.  So he had come down, he had been mistreated by the authorities in Vavuniya as a result of which he went to Colombo.  He had difficulties in Colombo, went back to Vavuniya, was mistreated by PLOTE, then returned to Colombo and came to Australia.

GLEESON CJ:   Yes, thank you, Mr Cameron.  Yes, Mr Lloyd.

MR LLOYD:   Can I address it in two parts, your Honour.  In relation to the question as to whether or not the errors made by the Full Court in relation to the construction of the privative clause affect this case, in answer to a matter raised by your Honour Justice Gummow, the reason why this case is not conceded like NAAV is because the Minister contends that the construction of the privative clause did not affect the analysis of either Justice von Doussa or Justice Wilcox in relation to this particular case and that Chief Justice Black and Justice Beaumont both agreed with Justice von Doussa, who himself agreed with Justice Wilcox.  So four of their Honours all reached a decision, as it were, on the basis of a putative situation of if the test in Craig applied and found that there was no jurisdictional error on that basis.

GLEESON CJ:   Now, what do you say about Justice Tamberlin’s finding on the bottom of 35 and the top of 36?

MR LLOYD:   I would say, your Honour, that Justice Wilcox is correct in characterising that as that his Honour Justice Tamberlin was in error in concluding that that was a jurisdictional error.

GLEESON CJ:   Before you let us know what you say about whether it was a jurisdictional error, what do you say about the finding that there was an error and that it was an error that could have affected the outcome?

MR LLOYD:   We say it is not an error that could have affected the outcome, but we accept that there was an error.

GLEESON CJ:   What would you say was the error?

MR LLOYD:   The error transpired in this way.  In the applicant’s original claims he did not refer to the PLOTE at all.  He just said, “They arrested me, they beat me”.  It is all a reference to “they”.  Then apparently there was an interview with a departmental officer and in the delegate’s decision there is a reference to the PLOTE and that is the reference in the quote at paragraph 36.  My friend says not all of the material was before the Full Court.  That may be so, but the relevant material was and that quote in paragraph 36 is the bit which the Tribunal seems to have failed to appreciate that the applicant was saying that in January 1999 the people who arrested and beat him were the PLOTE and not the Sri Lankan Army or other Sri Lankan authorities.

That led the Tribunal into an error, which was accepted, and the error appears perhaps in two places, one at the top of page 6 of the book where it says:

He claims that he was interrogated, beaten and otherwise mistreated by the authorities while detained for two weeks on suspicion of involvement with the LTTE or with the . . . (PLOTE).

That was an error because his claim was he was detained – although it obviously was not made at all clear to the Tribunal, but if the Tribunal had have appreciated what the delegate said in the delegate’s report, then it appears in what his Honour Justice Tamberlin found is that he had claimed that he was detained by the PLOTE because of his association with the LTTE.

GUMMOW J:   Wait a minute, I am just looking at the sentence:

He claims that he was interrogated, beaten and otherwise mistreated by the authorities while detained for two weeks on suspicion of involvement with the LTTE or . . . (PLOTE).

The authorities do not beat people up for being associated with PLOTE, do they?

MR LLOYD:   That is exactly the point and that is why, at the bottom of page 7 over to ‑ ‑ ‑

GUMMOW J:   It suggests the Tribunal does not really understand what is going on in the country.

MR LLOYD:   Well, no, your Honour.  If your Honour turns to the bottom of page 7 over to the top of page 8, you will see what the Tribunal is there saying is his claim to have been beaten up because he was associated with the PLOTE is incredible because the authorities would never beat up someone associated with the PLOTE because they are affiliated with the authorities.  So that is the error.  The error of the Tribunal is in relation to thinking that in January 1999 ‑ ‑ ‑

GUMMOW J:   It went to his credibility.  Their mistake assisted a finding about his credibility, did it not?

MR LLOYD:   In relation to that matter, yes, your Honour.  Then if your Honours look at the middle of page 7, the context is that the claims of having been beaten were claims of having been beaten in January 1999.  Subsequently the applicant said he had been permitted on two occasions by the authorities to travel from Vavuniya to Colombo and on both occasions he required permits, and the Tribunal drew the inference at about line 45 on page 7 and again from lines 10 to 15 on page 8 that that indicates that whatever the view was in January 1999, the authorities released him - as it turns out, that was the PLOTE who released him – and then subsequently had no interest in him and allowed him twice to travel to Colombo.  In that sense the error, in my submission, is not a material error because, whether it was the PLOTE who had detained him or the authorities, it was indicative that some months after that he was no longer of interest for his association with the LTTE.

What his Honour Justice Wilcox said at page 155, where his Honour begins the analysis of this decision at page 155 and makes the point at paragraphs 339, 340 and 341 that the applicant’s claim was focused upon harm by the authorities and not by the PLOTE.  What his Honour says in paragraph 342 is that the relevance of the PLOTE incident was that it was one of many incidents which he used to show that the authorities, if he went back to Colombo, would be interested in him in an adverse way.  What his Honour says is that ‑ ‑ ‑

GLEESON CJ:   That is the key to it, is it not, really in paragraph 342, right or wrong?  Justice Wilcox said this was “merely an error of fact”.

MR LLOYD:   That is right.

GUMMOW J:   The question is:  what quality of fact?

MR LLOYD:   I accept that, your Honour.  I suppose the first thing I wanted to say was that the approach to the privative clause did not affect it.  Perhaps if I just briefly say paragraph 344 reveals that and also paragraph 650 in his Honour Justice von Doussa’s decision, where he says:

I agree with Wilcox J that the error identified by Tamberlin J was an error of fact that did not amount to a jurisdictional error.  However, even if the error amounted to a jurisdictional error of the Craig type –

so his Honour in referring to jurisdictional error is looking at the broadest notion of jurisdictional error.  He then goes on to rely on section 474.  So for that reason ‑ ‑ ‑

GUMMOW J:   That is the problem.

MR LLOYD:   Well, it is not a problem ‑ ‑ ‑

GUMMOW J:   That is the problem with his judgment.

MR LLOYD:   Except that I would say any error in his Honour’s judgment and the construction of section 474 is not material to this.

GUMMOW J:   It is irrelevant, but it weakens the strength of what he is saying, does it not, about jurisdictional error?

MR LLOYD:   Because he so clearly identifies what he is referring to as jurisdictional error – he says Craig jurisdictional error – it is clear that he is accepting that there is nothing of that broader notion of jurisdictional error.

GUMMOW J:   What do you say there would have to be to amount to facts miscarriage?

MR LLOYD:   My client accepts the principles stated in Dranichnikov.  Perhaps if I turn to those.  It is in the bundle, I think, that I prepared for the Court.  I refer particularly to the judgment of your Honours Justices Gummow and Callinan, with whom Justice Hayne agreed.  At paragraph [24] your Honours say that “To fail to respond to a substantial, clearly articulated argument” would amount to a denial of natural justice and your Honours go on to say a jurisdictional error in paragraph [25].  In the previous paragraph, paragraph [23], your Honours refer to the fact that in that case the applicant placed emphasis upon a particular formulation of his membership of a social group.

So in Dranichnikov there is a case where an applicant makes a clear claim to a formulation of a social group, which is a critical element to the definition of “refugee”.  The Tribunal fails to assess that central part of his claim and is characterised as a jurisdictional error.  His Honour Justice Kirby, I should say, also refers at paragraph [87] and describes it as “a fundamental mistake” in considering “the legal claim propounded” ‑ ‑ ‑

GLEESON CJ:   Is this related to the point made by Justice Wilcox on page 158 in the middle of paragraph 342, where he says:

But it was not a separate claim requiring separate evaluation.

MR LLOYD:   That is so.  The point that I want to come to and the distinction between this case and Dranichnikov – perhaps I should put it at two levels.  First of all, this case is about whether or not on the facts of this case it falls within the principles as stated in Dranichnikov, which, in my submission, is not a matter of any general importance from that point of view.  Then the question is whether or not there is a sufficiently strong case to justify a grant of special leave.  In my submission, his Honour Justice Wilcox is correct in saying that the question of who detained him and beat him in January 1999 was just one of a long list of matters which was – even if the Tribunal erroneously identified who it was, it does not affect the rationale of the Tribunal that the authorities are not interested in the applicant and that he can return to Colombo where he, the Tribunal found, had a work history.  So on that basis ‑ ‑ ‑

GUMMOW J:   But his Honour is wrong, is he not, at the first sentence of 342?  Is that not wrong?

MR LLOYD:   No, your Honour.  What his Honour is saying there in paragraphs 339 to 341 is that he does not claim to have a fear of persecution from PLOTE.  He claimed to have been detained by them, and that was one of several incidents he relied upon, but his actual claims about being returned to Colombo are that the Sri Lankan authorities will get him.  That is his subjective fear, that the Sri Lankan authorities will get him.  My friend says he claims that he fears the PLOTE.  That is what his Honour Justice Wilcox did not accept – and, in my submission, correctly did not accept – that he has any fear of the PLOTE. 

I accept there was an error that he claimed that he was detained by the PLOTE in Vavuniya, but the issue the Tribunal was looking at is whether or not he can be returned in particular to Colombo and whether or not, as cited in the various passages at 339 and 340, he is fearing harm from the authorities.  I note that those passages are the applicant’s passages, not the Tribunal’s passages.  So the fear that the applicant says is a fear ‑ ‑ ‑

GUMMOW J:   Whereabouts?

MR LLOYD:   At 340.  There is a passage set out from Mr Selliah.  Mr Selliah is the migration agent for the applicant.  That is a submission made to the department.  Your Honour will see at paragraph 341 his Honour Justice Wilcox refers to a similar submission made to the Tribunal.

GLEESON CJ:   Is this upon the theory that, although he said that in the past he had been persecuted by the authorities and by PLOTE, he was only claiming that his fear of future persecution was mistreatment at the hands of the authorities but he had no fear of the PLOTE?

MR LLOYD:   He did not claim a fear of the PLOTE; that is precisely so.  Conversely, if you were to read it the other way and say that when is referring to the “authorities” he is talking about the Sri Lankan army and police and the PLOTE, then that is what the Tribunal in fact addressed in terms of rejecting the idea that the applicant was of any interest to them because they allowed him to travel to Colombo twice after the PLOTE incident.  So on either view the mistake made by the Tribunal does not affect the logic or the rationale of the Tribunal’s decision.

It is on that basis, in my submission, that the matter is distinguishable from Dranichnikov where there there was a clearly articulated claim.  Here there is no clearly articulated claim about the PLOTE at all.  It is never mentioned other than apparently to the delegate in an interview.  He never says that he fears the PLOTE at any time and in any event, on the rationale of the Tribunal, it is not material because subsequent to the PLOTE incident, the applicant’s own evidence was he was permitted to go to Colombo on two occasions, indicating he was not of interest.

GUMMOW J:   What do you say about credibility findings?  Do you place any reliance on it?

MR LLOYD:   The only credibility issue which the mistake went to was one which – this is at page 8 – that the Tribunal disbelieved that he would be of interest because of an association with the PLOTE.  In the end he had

not claimed that anyway, so to reject that claim does not touch upon anything else.  In any event, the claim that is of adverse inference because of being associated with the LTTE is clearly addressed and rejected on the basis that he is permitted to go to Colombo twice.  So, although there is an error of fact, in my submission, the fact does not have the character of the fact in Dranichnikov of a central element in the definition of “refugee”.  I am not sure I can take it any further.

GLEESON CJ:   Thank you, Mr Lloyd.  Yes, Mr Cameron.

MR CAMERON:   Just briefly, your Honour.  So far as the applicant is concerned, there is no dispute so far as the finding of the Tribunal is concerned that he was no longer in danger from the authorities but, in my submission, Mr Justice Wilcox, as your Honour Justice Gummow has pointed out, is clearly wrong in the first sentence where he says:

So far as I can ascertain, at no time did NABE claim a fear of persecution at the hands of PLOTE, as distinct from the “authorities”.

If one goes back to paragraph 36 of his Honour Mr Justice Tamberlin’s decision, that is precisely in the paragraph quoted from the decision of the delegate.  That is precisely what is claimed.  He claims that in Vavuniya he was arrested by PLOTE people and tortured by PLOTE people.

In my submission, that is a clear claim of past persecution and it is an obvious inference from it that on the basis of that past persecution the applicant feared further persecution from PLOTE, as distinct from the authorities, should he be returned to Sri Lanka.  The result of that is, the Tribunal not having considered that clearly articulated claim, probably even more clearly articulated than was the case with Mr Dranichnikov, the Tribunal failed to exercise jurisdiction, thereby fell into jurisdictional error and, contrary to the finding in the Full Court, the decision of the Tribunal was reviewable on that basis.  I do not believe I can take the matter any further.

CALLINAN J:   You could not go as far as the way in which Justice Kirby characterised it at paragraph [88] in Dranichnikov:

But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant –

you could not bring yourself within that sort of definition, could you?

MR CAMERON:   In my submission, yes, you could, your Honour, because he is claiming fear of persecution by PLOTE.  That is something which has not been considered, just as in Dranichnikov it was not considered that he was a member of a class of businessmen who had complained about corruption on the part of the authorities and had been dealt with by the authorities as a result.

GUMMOW J:   One of the things that worries is that this matter was heard by five members of the Full Court.

MR CAMERON:   It was.

GUMMOW J:   Do we have the view of all five members on this question of jurisdictional error?

MR CAMERON:   All five members held that it was.

GUMMOW J:   As distinct from construction of 474, which then controlled them.

MR CAMERON:   They all held that there was jurisdictional error but on a slightly different basis.

GLEESON CJ:   Is it the case that the only two who dealt specifically with this question were Justices Wilcox and von Doussa?

MR CAMERON:   No, they all dealt with it quite briefly.  Mr Justice French dealt with it and he dealt with it on a slightly different basis from the majority.  The majority dealt with it on the basis that you just apply the three Hickman provisos.

GUMMOW J: Yes, I know that. What I am trying to get is: is there any consideration by all five members of what we now have to consider, which is jurisdictional error as expounded in terms of 75(v) of the Constitution as illustrated by Dranichnikov?

MR CAMERON:   No.  In fact, Mr Justice von Doussa mentions that the question of whether the decision was made under an Act was actually only mentioned in passing in argument.  It appears that the question ‑ ‑ ‑

GUMMOW J:   Why was Justice Wilcox worried about jurisdictional error?

MR CAMERON:   I have no idea, your Honour.  So that the question which was before your Honours in Plaintiff 157 was not clearly argued before the Full Court.  Thank you.

GLEESON CJ:   Thank you.  We will announce our decision in this matter when we resume at 2.00 pm.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.10 PM:

GLEESON CJ:   Mr Lloyd, what, if anything, would you have to say to the proposition that, having regard to the fact that the decision of the Full Court in this matter was given before our decision in S157, the best course to take would be to remit this matter to the Full Court of the Federal Court to reconsider it in the light of that decision?

MR LLOYD:   May I have a moment to take instructions?

GLEESON CJ:   Certainly.

MR LLOYD:   My instructing solicitor raises the practical question of reconstituting the five member Full Bench.

GLEESON CJ:   It would be a matter for the Federal Court to decide the constitution of the Full Court.  It might be none of them.  That is a matter for their internal administration.  We do not mean that Full Court.

MR LLOYD:   I suppose at the end of the day, your Honour, I do not have instructions to consent to that course.

GLEESON CJ:   Perhaps the problem that you raise means that we should make more explicit that in contemplating the possibility of that course, we are not intending to give any indication to the Federal Court as to how it should constitute a Full Court; that is a matter for the administration of the Federal Court.

MR LLOYD:   Would your Honour be proposing, as it were, to grant special leave in the view that my client and the applicant, or appellant then, would then be able to come to terms on a ‑ ‑ ‑

GLEESON CJ:   No, we are not inviting any agreement or anything.  We have heard what you had to say.

MR LLOYD:   Thank you.

GLEESON CJ:   We actually gave you leave, did we, Mr Cameron, to amend your application for special leave to appeal and your draft notice of appeal?

MR CAMERON:   You did, your Honour.

GLEESON CJ:   Thank you.

The decision of the Full Court of the Federal Court in this matter was given before the decision of this Court in S157/2002 v The Commonwealth.  Consequently, the decision of the Full Court did not address the question of jurisdictional error in the light of the principles since enunciated in that case.  We consider that in the circumstances the proper course to take is to grant special leave to appeal and allow the appeal and remit the matter to the Full Court of the Federal Court for further consideration in the light of the decision in the case to which I have referred. 

We make the following orders:  special leave to appeal is granted; the appeal is allowed with costs; the orders of the Full Court of the Federal Court are set aside; the matter is remitted to the Full Court of the Federal Court for further consideration in the light of the decision of this Court in S157/2002 v The Commonwealth.  The question of costs of proceedings in the Federal Court to date will be in the discretion of the Full Court when it reconsiders the matter.

We will adjourn to reconstitute.

AT 2.15 PM THE MATTER WAS CONCLUDED