NAPX of 2002 v MIMIA

[2003] HCATrans 538

[2003] HCATrans 538

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S75 of 2003

B e t w e e n -

NAPX OF 2002

Applicant

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 10.07 AM

Copyright in the High Court of Australia

MR M.C. JAYAWARDENA:   Your Honour, I appear for the applicant in this matter.  (instructed by the applicant) 

MR R.J. BROMWICH:   May it please the Court, I appear for the respondent.  (instructed by Clayton Utz Lawyers) 

KIRBY J:   Yes, Mr Jayawardena.

MR JAYAWARDENA:   Your Honour, this is an application made to your Honour’s Court seeking special leave to proceed with an application under section 35A of the Judiciary Act 1903. Your Honours, my main argument is that the decision made by both the Honourable Justice Driver and Justice Lindgren was made in error, because the pronunciation made by Justice Driver, according to the application book, the final decision was that he dismissed this application because it falls under – it says, page 43, your Honour:

My conclusion is that the application fails in the face of the privative clause ‑ ‑ ‑

KIRBY J:   I am sorry, would you just direct me again to that?

MR JAYAWARDENA:   Page 43 of the application book, your Honour.

KIRBY J:   Which paragraph?

MR JAYAWARDENA:   24:

My conclusion is that the application fails in the face of the privative clause ‑ ‑ ‑

KIRBY J:   Yes, I saw that, and I understand how you are attacking it on that basis, but you will recall that in the hearing Justice Lindgren invited the issue to be presented as if the privative clause was not there, and thus gave the applicant the full opportunity to argue the matter.  He had the benefit of the decision of this Court in Plaintiff S157, but only just.  I think it had only just come down two or three days before the hearing, but it is not as if his Honour did not address the larger issues.  He did refer to the privative clause, but he did invite your side to address the substance of the matter.

MR JAYAWARDENA:   I think, your Honour, this is what I refer to the decision made by Justice Driver.  Justice Driver’s conclusion was in November 2002, long before this S157 of 2002 came into effect, and the conclusion on that ‑ ‑ ‑

KIRBY J:   Yes, but there is no point in our giving special leave to reconsider the interpretation of the Act and the so‑called privative clause because we have already passed upon that.  The Court has spoken on that in Plaintiff S157, so there would be no point in our bringing this matter up.  You have to really say that because Justice Lindgren used as a step in part of his reasoning the privative clause, by reason of the decision in Plaintiff S157, his Honour misled himself.  That is what you are saying?

MR JAYAWARDENA:   That is right, your Honour.

KIRBY J:   Exactly, but his Honour did say to you that you should address the issue on the footing that the provision was not there.  So it cannot be suggested that his Honour did not give consideration to the case absent the privative clause.

MR JAYAWARDENA:   Really, your Honour, the opportunity was given to me by Justice Lindgren as to whether there had been bad faith, error, bias or fraud on the part of the decision made by the Tribunal.  I assert it, your Honour, because some of the reasons enunciated by Justice Driver where it clearly says he disagreed with the findings of the Tribunal and his decision would have been otherwise, if not for the privative clause, where his decision is bound because of the privative clause decision.  Then your Honour would look at the RRT decision – Justice Driver’s decision on that.  Justice Driver has very clearly said that, page ‑ ‑ ‑

KIRBY J:   It is Federal Magistrate Driver? 

MR JAYAWARDENA:   Federal Magistrate, yes, your Honour.

KIRBY J:   What page?

MR JAYAWARDENA:   Page 82 of the book, your Honour, paragraphs5 to 25:

The Hon. Judge F.M. Driver also concluded in paragraph 15 as follows:

“On the basis of the material in the court book I am satisfied that there was material before the RRT that could reasonably have led to a conclusion that the appellant was advancing a case of asserted persecution from at least the age of eight years of age, and in the circumstances, it was reasonably open to the Presiding Member to draw conclusions based upon that material” –

Then the Honourable Judge, of course, continues, your Honour:

“I do not necessarily agree with the conclusion reached by the Presiding Member.  It seems to me that the Presiding Member has in a perfunctory way dismissed the applicant’s story on the basis that it is inherently implausible that the applicant could have been sought to be recruited at such an age.  In my view, it is not necessarily restricted implausible when one looks at country information, not necessarily restricted to Sri Lankan country information, concerning the recruitment of children by political organizations of various kinds to support their activities.  It is not apparent to me whether the Presiding Member had any regard to country information along those lines.”

KIRBY J:   All of this seems to be, really, a masked attempt to get the Federal Magistrates Court and then the Federal Court to reconsider the factual conclusions of the Tribunal.  I mean, that is what Federal Magistrate Driver is saying.  He is saying, I do not necessarily agree with that conclusion of the Tribunal.  Well, that is not the role of judicial review.  It is not a merits review.  It has to be showing error of law jurisdiction.

MR JAYAWARDENA:   By virtue of those decisions, I mean, the finding made by the Tribunal, my submission to you is there is jurisdictional error, because the decision was made on facts that were not in existence, as Justice Driver has decided.  If the learned Tribunal Member referred to the country information, his opinion would have been quite different.  That is why Justice Driver has said whether the learned Member had the opportunity of seeing those country information, which Justice Driver believes he had not seen.

My argument bases fairly on the decision made by Justice Lindgren, your Honour, on 7 February, when S157 of 2002 has very clearly spelt out that privative clauses were unconstitutionally, and Justice Lindgren at that point of time was unsure what the position is.  He has said on page 54, your Honour, of the book:

In the light of the High Court’s decision in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 decided on 4 February 2003, s 474 is now to be construed so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. With respect, it is not clear today, 7 February 2003, precisely what is the scope of the decisions which fall within and the decisions which lie outside ‑ ‑ ‑

KIRBY J:   Now, is that not the point of difference, the distinction, and is that not the problem in this case?  The passage you were referring from paragraph 24 was, of course, in the reasons of Federal Magistrate Driver, and he, in accordance with the then understanding of the law, applied the privative clause provision.  That was on page 43 of the application book.  Meanwhile, by the time the matter came before Justice Lindgren, he had the advantage of the decision of this Court in S157 and he says, in paragraph 11, at page 54:

I invited Mr Jayawardena to enunciate all criticisms he wished to make of the decision of the Tribunal as if s 474 –

the privative clause – 

did not exist.

So that his Honour has bypassed the point on which Magistrate Driver decided the case and dealt with it in a global way, as the decision in Plaintiff S157 required.  We are looking at whether any error was made by the Full Court that is constituted by Justice Lindgren.  Now, what is the error of Justice Lindgren?

MR JAYAWARDENA:   The error made by Justice Lindgren, your Honour, is that the privative clause was abolished by the High Court ‑ ‑ ‑

KIRBY J:   They were not abolished, but they were given a construction.

MR JAYAWARDENA:   Held unconstitutional, and so, by that time when Justice Lindgren made the decision, this section 474 was already out.

KIRBY J:   That is what he says at page 54, paragraph 11. He said, I have asked Mr Jayawardena to address me on the basis that “s 474 did not exist”. So he has dealt with the matter without regard to section 474.

MR JAYAWARDENA:   I did argue, your Honour, because I referred to the fact that the learned Member held that, virtually, the applicant was a liar, and I said that was definitely very prejudicial and biased towards the applicant, because in his decision the learned Member said – if I may be permitted to refer to that, your Honour? 

In the learned Member’s decision, he has said that the applicant was virtually a liar.  I took that up and if the applicant could not be believed, you should not characterise the applicant as a liar, that if the Member feels that the evidence is not – if he cannot believe it, he can say, I will not accept this evidence.  But you cannot characterise ‑ he has said, in short, that the applicant fabricated the evidence, put a false claim, your Honour, which is wrong.  If the learned Member did not believe that evidence, he would say, I do not accept this evidence, rather than characterise ‑ ‑ ‑

KIRBY J:   Well, if this is a criticism of the way in which reasons are expressed, we are not here to be schoolmasters to the way tribunals and magistrates and judges express themselves.  We have to look at the substance of the matter, and the substance of the matter is your complaints, until the very last moment, were that there was bias on the part of the Tribunal, that there was a wrong decision on the merits and that there was bad faith.  You have also complained that Justice Lindgren gave a decision later in the afternoon by ex tempore reasons. 

Now, they are hopeless protests against the decision.  I realise you have to do your best for your client, but I am just saying they were all hopeless criticisms.  Now, you are saying that Justice Lindgren somehow did not address the matter, but he says in terms that he did.  He invited you to deal with it as if the privative clause did not exist.  Is there anything else that you want to say?

MR JAYAWARDENA:   I did make my arguments before Justice Lindgren and Justice Driver, your Honour, but my submission is that in view of the new decision S157 of 2002, because of the privative clauses being held as unconstitutional, whether the applicant has a right to seek your Honour’s leave before the Court to argue this matter.  That is my submission, your Honour.

KIRBY J:   Yes, thank you very much, Mr Jayawardena.  The Court does not need your assistance, Mr Bromwich.

The applicant, a national of Sri Lanka, claimed refugee status on the basis of his alleged interest in the JVP paramilitary organisation in Sri Lanka.  He said that the JVP had tried to recruit him to its activities as a child and that they had been involved in robberies of his family business.  The claim was rejected by the delegate of the Minister.  The applicant sought review in the Refugee Review Tribunal.  The Tribunal found that the applicant was not a credible witness; that he had fabricated his claim that he was of adverse interest to the JVP; and whilst the alleged robberies may have occurred, the rest of the claim was rejected as untrue.

Against this unpromising background, the applicant sought judicial review.  The application came before the Federal Magistrates Court prior to this Court’s decision in Plaintiff S157 of 2002 v The Commonwealth (2003) 195 ALR 24. The application was therefore complicated by the suggestion that the Tribunal’s decision was a privative clause decision within section 474 of the Migration Act 1958 (Cth).

The magistrate dismissed the application on that footing whilst making some critical remarks about certain of the reasoning of the Tribunal.  The applicant then appealed to the Full Court of the Federal Court.  That court was constituted by Justice Lindgren.  His Honour heard the appeal soon after the decision of this Court in Plaintiff S157 became available. He invited the applicant’s representative in terms to make his submissions on the footing that section 474 of the Migration Act did not exist.  He rejected the arguments that were advanced, namely reviewable error on the basis of bad faith or bias and on complaints concerned with the reasoning of the Tribunal.  He held that those complaints were not made good; that no error of law was demonstrated; and that the Tribunal had failed to comply with section 422B of the Act.

In this Court the applicant complains that Justice Lindgren gave insufficient attention to the case, providing his reasons ex tempore on the day of the hearing.  There is no merit at all in that complaint.  In any case, we have looked at the substance of the matter.  The applicant’s arguments address the privative clause decision.  However, since Plaintiff S157 there is no need for this Court to revisit that matter and the Minister did not suggest otherwise.

The applicant also referred in his written arguments to section 75(v) of the Constitution. That section was not engaged in this case which seeks to invoke this Court’s appellate jurisdiction. Both the Federal Magistrate and the Federal Court correctly recognised that judicial review is not an occasion for merits review. Having regard to the adverse credibility findings in the Tribunal, any review was confronted with profound difficulties in this case.

There is no reasonable prospect of success.  Special leave is refused.  The applicant, in his written argument, contested the order for costs.  However, the usual order should be made.  The application for special leave is dismissed with costs.

AT 10.23 AM THE MATTER WAS CONCLUDED