Paramasivam v Min for Immigration & Multicultural Affairs

[1999] HCATrans 291

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M59 of 1998

B e t w e e n -

VEERAVAGU PARAMASIVAM

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 SEPTEMBER 1999, AT 11.38 AM

Copyright in the High Court of Australia

MR T.V. HURLEY:   May it please your Honours, I appear on behalf of the applicant.  (instructed by Ravi James & Associates)

MR W.S. MOSLEY:   If your Honours please, I appear for the respondent in this matter.  (instructed by the Australian Government Solicitor)

MR HURLEY:   Your Honours, application for special leave is sought on three grounds; two short grounds and one other ground.  The first ground, your Honours, relates to the application in this decision of the internal relocation test as established by the Full Court in the decision in Randhawa.  The applicant submits that the Tribunal erred in this case in not posing the question of whether the applicant could internally relocate, whether it was reasonably possible, which is the test posited by Randhawa, but instead erred in requiring the applicant to prove that he had a well-founded fear of persecution twice, once from the north of his country and once in the army‑controlled part of his country to the south.

GUMMOW J:   The real question is, for us, not whether the Tribunal was right or wrong; the real question for us is where did the Full Court of the Federal Court go wrong in endorsing, as it did, the judgment of Justice Beaumont?

MR HURLEY:   That, your Honour, Justice Beaumont did not accept that the Tribunal had applied – although it had stated the test correctly, had not applied the Randhawa test and the Full Court erred in not accepting that Justice Beaumont had not accepted the error manifest in the RRT’s reasons.  The Full Court proceeded on the basis that the matter was simply a question of fact and ultimately there is a question of fact or judgment involved, but that question of fact is derived at by asking the right question which is whether ‑ ‑ ‑

GUMMOW J:   That is not fair to what Justice Beaumont said.  He asked himself whether the correct principles had been applied as to matters of law by the Tribunal and he said they had.  Having said that he said, well, it is just a fact.

MR HURLEY:   Your Honour, that is the way he reasoned.  We do not dispute that the Tribunal correctly referred to the Randhawa principles but that it then went on to address other matters.  Rather than the reasonableness of internal relocation, it posed questions which led it to conclude in its reasons at the application book at page 15 in terms of posing the entire question again as to whether the applicant was a refugee, rather than whether, having found he was a refugee in the north, it was reasonable for him to relocate to the south.

McHUGH J:   But at page 15 the Tribunal made a specific finding of fact it:

finds that it is reasonable for the Applicant to relocate to an army controlled place such as Colombo.

MR HURLEY:   Yes, your Honour, at line 25.  If your Honour goes on to line 30, though, the Tribunal ‑ ‑ ‑

McHUGH J:   Yes:

The chances that he may now…..if he returns is so remote as to found a conclusion that he does not have a well-founded fear in this respect.

I would have thought that they were talking generally, that they were not restating another test.  But even if they were, what is the error?

MR HURLEY:   Your Honour, the error is the Tribunal has posed a question of fact but we would submit it is the wrong question. 

The second ground upon which special leave is sought is the “what if I am wrong” test, but that test only arises on the authorities if the Tribunal is uncertain of its findings and it is our submission that because the Tribunal’s findings were based on asking the wrong question, it should have posed the “what if I am wrong” test.

The third ground, though, your Honours, is one that may involve a slight recasting of what is in the application book following on this Court’s decision in Eshetu.  Prior to Eshetu, as the Court will know from Eshetu, there was a lot of argument placed in the Federal Court which relied on section 420 of the Act, the fair, just, economical and quick ground and the substantial justice and merits of the case ground.  This Court in Eshetu in May of this year concluded that section 420 for the Refugee Review Tribunal did not support that ground.

Another ground was agitated before Justice Beaumont.  If I can take the Court to the application book at page 19.  This is the amended application that his Honour decided and at the bottom of page 19 is paragraph 3:

The Tribunal erred in the interpretation and application of the law, or alternatively failed to follow procedures which were required by the Act to be observed in that it failed to comply with section 430 of the Act.

Section 430 of the Act obliged the Tribunal to make a written statement of its decision that:

(a)  sets out the decision of the Tribunal on the review; and
(b)  sets out the reasons for the decision; and
(c)  sets out the findings on any material questions of fact; and
(d)  refers to the evidence or any other material on which the findings of fact were based.

GUMMOW J:   Now this ground under 430, was that pressed in the Full Court?

MR HURLEY:   It was addressed by his Honour Justice Beaumont and his Honour, we submit, subsumed the section 430, which is the reasons, in the section 420 ground, which is the substantial justice ground that this Court considered in Eshetu.  He did this, your Honours, at application book pages 28 and 29.  At application book page 28, line 14, his Honour observes:

The third ground of the application is that the Tribunal –

and he sets out the ground and he accepts:

Again, it may be accepted that, if failures of this kind had been demonstrated, the Court would have jurisdiction to intervene.  There are three particulars given of this ground and they need to be considered separately.  The first is –

and he sets it out:

“…failed to give an evaluation of conflicting evidence…..”
In my opinion, this is no more than a claim that the Tribunal, in substance, failed to give proper weight to some of the evidence before it.

With respect, the ground that was in the application was that a procedure had not been followed, namely giving a written statement of reasons which:

(c)  sets out the findings on any material questions of fact; and
(d)  refers to the evidence or any other material on which the findings of fact were based.

The point is best made over the page, your Honour, at court book page 29.  His Honour commences the page by observing:

The second particular of this ground is that the Tribunal –

and he sets it out:

“…failed to refer to the evidence or other material on which it relied in stating that, ‘Notwithstanding the existence of widespread corruption in Sri Lanka it is improbable that the authorities would permit the applicant to leave Sri Lanka if they had any interest in him’.”

Your Honour, this goes back to a document that was placed before the Tribunal called the Danish Report and the Tribunal accepted part of the Danish Report.  It did so at the application book at page 15.  It refers to certain persons who had returned to Sri Lanka from Switzerland and their experiences, but the Tribunal did not address other parts of the Danish Report which are summarised at court book page 51 to the effect that:

Colombo airport could be described as “leaking like a sieve” –

which would answer the proposition that the applicant left Sri Lanka without attracting the interest of the authorities, the point being that this ground of review was not a matter that raised a matter of fact and went to the weight of the evidence, it was a ground of review which submitted that there had been a failure to refer to evidence or other material on which the findings of fact were based, being the reason for which the Tribunal accepted parts of the Danish Report and refused or declined to accept other parts.             It is our submission that ‑ ‑ ‑

McHUGH J:   These are questions of fact.

MR HURLEY:   Your Honour, the submission that we make is that the written statement of the Tribunal fails to address why it accepted one part of this material and acted on it but failed to address another part of the material.

McHUGH J:   Your opponent argues that the Tribunal was just merely referring to certain aspects of the report but did not rely on it.  Is that not what the respondent says?  What do you say about that?

MR HURLEY:   Yes, your Honour, words to that effect, and it was a secondary fact not a material fact. 

GUMMOW J:   These Tribunal reasons will get very lengthy if this is what you are saying is the standard to be observed, much longer than most judgments at primary level.

MR HURLEY:   Your Honour, the obligation on the Tribunal ‑ ‑ ‑

GUMMOW J:   There is an air of unreality about all this.

MR HURLEY:   Yes, your Honour, but we submit a statement of reasons that accepts parts of the material submitted by an applicant and not others, and where that difference is unexplained, is not a written statement of reasons ‑ ‑ ‑

GUMMOW J:   That, in some circumstances, I suppose, could be a substantive ground for a review, but 430 is a procedural requirement.  It tells - if they have not done something which they ought to have done, and that gives rise to a reviewable ground, that is one thing.  But you are trying to put 430 back as some sort of freestanding substantive ground.  Of course they have to give their reasons, but then the reasons stand or fall by other criterion.

MR HURLEY:   Yes, your Honour.

GUMMOW J:   They may disclose an error of law, et cetera.

MR HURLEY:   It is our submission that the requirements of section 430 constitute a procedure within section 475(1)(a) that is reviewable under Part 8 of the Migration Act and that these reasons did not comply with that standard and that the learned primary judge, Justice Beaumont, erred in construing the ground of review as being one that went to matters of fact and weight of evidence, which was then the answer to section 420, rather than the ground that was pleaded of section 430.

Your Honour, they are the submissions on behalf of the applicant in support of special leave.

McHUGH J:   Thank you, Mr Hurley.  The Court need not hear you, Mr Mosley.

Given the limited nature of review by the Federal Court of a decision of the Tribunal, there is nothing in the judgments of Justice Beaumont or the Full Court of the Federal Court which would justify this Court granting special leave to appeal.  The application is therefore dismissed.

MR MOSLEY:   I seek an order for costs, if your Honours please.

McHUGH J:   The application is dismissed with costs.

The Court will now adjourn to reconstitute.

AT 11.47 AM THE MATTER WAS CONCLUDED