Plaintiff S428-2008 v MIAC & Anor

[2008] HCATrans 362

[2008] HCATrans 362

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S428 of 2008

B e t w e e n -

PLAINTIFF S428/2008

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for an order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 29 OCTOBER 2008, AT 10.26 AM

Copyright in the High Court of Australia

MR L.J. KARP:   If your Honour pleases, I appear for the plaintiff.  (instructed by Legal Aid Commission of NSW)

MS R.S. FRANCOIS:   If your Honour pleases, I appear for the first defendant.  (instructed Clayton Utz)

HIS HONOUR:   Mr Karp, I have read four affidavits filed by your client, one of Alexander Grosart of 12 September 2008, one of the plaintiff dated 15 October 2008, one of Emad Hamid of 21 October 2008 and one of Mohammed Maar of 22 October 2008.  That is the evidence you rely on?

MR KARP:   It is, your Honour, yes.

HIS HONOUR:   Do you object to any of that, Ms Francois?

MS FRANCOIS:   No, your Honour.

HIS HONOUR:   Very well.  I have read various written submissions that you have prepared and had filed, so I think we are in a position to hear your oral submissions, Mr Karp.

MR KARP:   Thank you, your Honour.  If it is convenient to your Honour, I will start with an explanation of what I say the jurisdictional error in the Tribunal decision is.  If I could take you to page 8 of exhibit B of Mr Grosart’s affidavit.

HIS HONOUR:   Yes.

MR KARP:   There is a heading there “Findings and Reasons” of the Tribunal.

HIS HONOUR:   I see that, yes.

MR KARP:   Your Honour, I will start with the matters which the Tribunal accepted and it accepted, it says, “without hesitation his account of events”.  Has your Honour read the Tribunal decision?

HIS HONOUR:   I have not read all of it, but I have read pages 8 to the end, which centres on this question of motivation, pure revenge or political motivation.

MR KARP:   It does, your Honour.  That is the central part of it.  It accepted his account of events, it accepted that he was believed by members of this political military group that his employer was negotiating with that he had informed the army as to their whereabouts and it accepted that he had been responsible for the army ambush which led to the deaths of a couple of dozen or so of these people.  Now, it is quite clear when the Tribunal found that the group wanted revenge or were looking at him for revenge, he had, in colloquial terms, dobbed them in and they wanted to, to use another colloquial term, do him in.  The issue of Convention reason cannot be addressed simply, in my submission, by looking at the immediate motivation because something else may underlie that motivation.

In this case one possible reason for the perception that the applicant informed the army about the whereabouts of the militants was that he opposed them, that is, that he had a political opinion opposed to theirs, to their existence or to their activities.  In any case, that is a political opinion for the purposes of the Convention.  The Tribunal’s reasons at page 9 of exhibit B to Mr Grosart’s affidavit say that there are two motivating factors for the desire of the gunmen or their families to harm him.  The first is revenge and the second, he says, is political opinion and he puts political opinion, as far as the Tribunal understood it, on these grounds.  This is the first full paragraph on page 9:

the applicant is perceived as holding political opinions in opposition to Takfir wal‑Hijra because of his actions in refusing to take up arms in support of the group –

insistent on him taking up arms in support of the group after they discovered that he had been informing the army on him –

in (it is believed), having been responsible for the authorities’ military action against the group; and for subsequently defending the actions of the authorities in conversations about the incident around Tripoli.

After that what the Tribunal does is it says correctly “that there can be more than one motivation for harm that may be inflicted” for a Convention reason.  It then cites 91R, specifically 91R(1)(a).  Does your Honour have a copy of the legislation?

HIS HONOUR:   Yes, I do.

MR KARP:   I have a copy printed out if it is more convenient.

HIS HONOUR:   No, this will be all right, thank you.  I have 91R.

MR KARP: Section 91R(1)(a) says that the Convention does not apply unless the Convention reason:

is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution –

So getting back to page 9, the Tribunal cites that and says, quite curiously, that:

The question to be determined in this case is whether the harm feared by the applicant is directed against him for the “essential and significant” reason of his political opinion, as required by section 91R(1)(a) of the Act; or whether revenge, directed against the applicant as an individual, for something he has done or is perceived to have done, is the essential and significant motivation.

Now, the words “as an individual” are curious because the Tribunal does not appear to contemplate that actions of the plaintiff as an individual could impute a political opinion to him.  The Tribunal then, at the bottom of page 9 on to page 10, speaks about the motivation of the relatives of those killed and that is not relevant to this case.  But what is relevant is at page 10 when the Tribunal goes on to consider the attitude of members of this political military group.  It says, in the second paragraph on page 10, that they:

may regard the applicant as holding political views in opposition to their organisation.  The Tribunal is satisfied that, even though a political opinion imputed to the applicant may play some role in the desire of the remaining members of Takfir wal‑Hijra to kill him, this is not the essential and significant motivation. 

Now, it makes those findings for two reasons.  First, he says himself that the motivation of the remaining gunmen was revenge.  But the Tribunal also said that none of the other people involved in the negotiations were under a threat of harm.  This, the Tribunal suggested that revenge is the essential and significant motivation on the grounds apparently that anybody perceived to be opposed to them would be equally at risk.  Now, what this reason does is ignore the Tribunal’s own finding that the army was contacted on this man’s phone by this man and that his action in contacting the army could have imputed a political opinion to him which could be a large part of the revenge which he fears.

Now, as this Court found in a different context in Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533, revenge and political opinion are not entirely separate. They can have a very large overlap. Now, is your Honour familiar with Singh?

HIS HONOUR:   Generally, yes.

MR KARP:   Singh is at tab 2 of the plaintiff’s bundle of cases. 

HIS HONOUR:   I have the plaintiff’s list of authorities which contains only one thing, SZJRI.  Should we have more or are we at fault for ‑ ‑ ‑

MR KARP:   You should, your Honour.  You should have a folder like this.

HIS HONOUR:   Just one moment.  Apart from Singh, is there any other case you ‑ ‑ ‑

MR KARP:   I can hand up my folder, your Honour.  That might be easiest.

HIS HONOUR:   Can you carry on without your folder?

MR KARP:   Yes, your Honour.  I have the reported cases marked up.  I am sorry about that, your Honour.  There appears to have been a slight misunderstanding.  Singh is a case where the AAT found that an Indian Sikh from the Punjab in that state had committed a serious non‑political crime within the meaning of Article 1F(b) of the Convention. Article 1F(b) can be found within the judgment of the Chief Justice at page 538 of 209 CLR 533 at paragraph 2. The case was, as I said, whether this man had committed a serious non‑political crime. The crime he had committed or the act he had committed was, he had been involved in killing a policeman who had tortured one of the members of his political party.

The Court found, in essence, that there was no antithesis between political action and revenge.  His Honour the Chief Justice found at 542 to 543 at 14, or his Honour approved, as I read it, of the Full Court’s reasoning that the distinction drawn by the Tribunal in that case was “an artificial and unwarranted antithesis between political action and revenge”.  That conclusion is repeated at paragraph 20 on page 545.  Now, if I may also draw attention to his Honour Justice McHugh’s judgment at page 552 at paragraph 48 where his Honour said that:

Mr Singh had a significant political purpose.  Such a purpose was not negatived by the element of revenge.

Then his Honour refers to the Chief Justice.  I should point out that Justice McHugh – sorry, that was Justice Gaudron at 48.  Justice McHugh’s judgment starts a little bit later.  Now, this case of course is not about 1F(b), it is about Article 1A(2), the question of political opinion for the purpose of Article 1A(2).  In my submission, they are very much related.  Both 1F(b) and 1A(2) involve the motivation of those who would inflict or have inflicted harm. 

In my submission, there is no reason why revenge can be an integral aspect of a political crime in forming the motivation of the perpetrators of that crime and yet be entirely divorced from the political motivation of one person to cause harm to another for the purpose of 1A(2).  Both involve the question of the motivation of the perpetrator of the harm, although in 1F(b) it would be the applicant who has committed the crime and in 1A(2) it is the applicant who fears the commission of the crime.  The concepts are interrelated, in my submission, very much so.  There is a Federal Court case, your Honour, which bears directly on this question and that is SZJRI. 

HIS HONOUR:   Justice Gilmour.  Yes, I have that.

MR KARP:   Correct, your Honour.  In SZJRI the question was whether a Nepalese policeman who had been involved in an ambush of Maoist rebels in that country feared persecution for revenge or for political opinion.  Now, his Honour at paragraph [12] of that judgment draws attention to Singh.  In paragraph [13] his Honour says:

In some respects, Singh is analogous to the present matter.  Like Singh, on one interpretation, “there was no real suggestion of private purposes or of a personal motivation” on the part of the appellant in his conflict with Maoists in 1998.  In Singh, the issue was how to characterise whether a crime that targeted a police officer for reasons of revenge was personal or political.  In the present case, there is an issue as to how to characterise persecution that targets a police officer for reasons of revenge:  personal or political.  For the appellant, if the motivation for the persecution was political, and not based on a private grudge, then there is a strong argument that he was targeted for reasons of his actual or imputed political opinion, or for reasons of his membership of a particular social group –

Now, his Honour at paragraphs [15] and [16] dismissed an argument that 1F(b) and 1A(2) were not interrelated and his Honour found at paragraph [25], after an analysis of the Tribunal’s reasons, that:

It was unreasonable on the evidence before it for the tribunal to conclude that the motive of revenge, if indeed that is what it was, was equivalent to a personal grudge.

I would interpolate, and nothing more.  In the present case, your Honour, there appears to be no recognition on the part of the Tribunal that revenge could be related to an imputed political opinion that the plaintiff holds in the eyes of those who would persecute him.  That, in my submission, is a jurisdictional error and one which should either be litigated in this Court or in the Federal Magistrates Court.  Your Honour, unless I can further assist on that particular issue, I might go to the other issues which have been raised.  I can either deal with the jurisdictional issue or delay, whichever order your Honour pleases.

HEYDON J:   Delay, if you can deal with that.

MR KARP:   Certainly, your Honour.  Your Honour, in explaining delay I would rely very heavily on the plaintiff’s affidavit.  Now, it appears not to be disputed that, as stated in paragraph 5 of the plaintiff’s affidavit made on 15 October, that he did not speak any English at the time of the decision.  That was in 2002.  Even now he speaks very little English.  He also stated in his affidavit that at that time and indeed until very recently he did not know the difference between a migration agent and a solicitor.  He also had very limited education, four years of education, and that can be found at page 18 of exhibit C to Mr Grosart’s affidavit, in one of the forms that he submitted for a protection visa.

HIS HONOUR:   Yes, I see that.

MR KARP:   He had four years education.  Also, the fact which he stated in his affidavit that he did not wish to publicise widely within his community the facts of his particular concerns, because he was afraid that his presence in Australia might come to the attention of those who would harm him.  That can be seen at paragraph 6 on page 2 of his affidavit.  I should also mention that the Tribunal itself suggested that this was a suitable case for the exercise of the Minister’s discretion.  That can be found at page 12 of exhibit B to Mr Grosart’s affidavit, the last page of the Tribunal decision.  The Tribunal says:

In these circumstances, the Tribunal considers it appropriate to refer this matter to the Minister for his consideration in relation to the grant of a visa on humanitarian grounds.

Now, what this means or what this adds up to is that the plaintiff in this case was limited entirely to the advice that he was given.  He was given the advice by people who were not legally qualified.  I do not dispute that he was given the advice with the best of intentions, but he had absolutely no access to a lawyer and no access to advice about the prospects of success of a case taken to the courts.  The advice that was given to him was that he should make applications to the Minister, which he did in great abundance covering a very large part of the time difference between the time the decision was made in 2002 and when he commenced action in the Federal Magistrates Court earlier this year.

Now, the fact that he applied to the Federal Magistrates Court in the way that he did, in complete contravention to section 477 which at the time and now states that an application lodged outside the 84 day period stated in that section should not be entertained, indicates the quality of the advice that was given to him at that time. Section 477 specifically states that the Federal Magistrates Court cannot hear an application brought after 84 days. In my submission, your Honour, the plaintiff acted on advice he was given. He was unaware of the basis upon which he could make a case in any court.

HIS HONOUR:   I have to challenge that.  According to his affidavit, Ms Vrakas said “you have the option of going to court”.

MR KARP:   Yes, he was told that he could go to court, but he was not told the basis upon which he could go to court.

HIS HONOUR:   Does that matter?

MR KARP:   In my submission, it does, your Honour, because the question of delay, the question of whether a person goes to court involves a question of whether he or she has a full knowledge of the basis upon which he can make an application and the basis of the consequences of that application.  Now, simply saying you can go to court but I would advise you not to without any explanation is hardly a basis for choice.  The fact that he knew about the possibility of going to a court, and the Tribunal itself had said this is a suitable case for humanitarian consideration, and the people who he consulted made those applications on his behalf or those solicitors on his behalf, does not indicate that he had an informed choice about his ability to go to court. 

So, in my submission, your Honour, the basis for the delay, although it is quite a long delay in the scheme of things, is explained. My friend has raised in her written submissions several cases in the Federal Court which deal with what is said to be an assumption or presumption, that an application to the Minister under section 417 or indeed 351is an admission that the Tribunal’s decision is correct. Now, that is not a presumption or an assumption which can be made under law.

HIS HONOUR: I did not quite read her submissions as saying that. I mean, what I took out of her submissions was the proposition that just because you make application to the Minister under section 417 or 351 is not of itself a satisfactory explanation for failing to go to the court within whatever time limits are stated or within whatever discretionary period the Court ultimately thinks to be proper.

MR KARP:   I would accept that, your Honour.

HIS HONOUR:   She was not submitting there was any sort of presumption of ‑ ‑ ‑

MR KARP:   Some of the cases do suggest there is a presumption.  But I would accept your Honour’s explanation of that and I would say that in this

case the added.....to which I have referred to explain the delay and put the applications which he made to the Minister in context.

HIS HONOUR:   Yes, thank you.  Does that finish what you have to say about delay?

MR KARP:   It does, your Honour.

HIS HONOUR:   I do not think I need trouble you on the Federal Magistrates Court versus High Court question.  Thank you.

MR KARP:   If it please your Honour.

HIS HONOUR:   I do not think I need trouble you, Ms Francois.

MS FRANCOIS:   If the Court pleases.

HIS HONOUR:   On 12 September 2008 the plaintiff filed an application for an order to show cause.  The proceedings relate to a decision of the second defendant, the Refugee Review Tribunal, handed down on 28 March 2002 affirming a decision of a delegate of the first defendant to refuse the plaintiff a protection Class XA visa.  The application seeks a writ of certiorari with a view to quashing the 28 March 2002 decision, a writ of mandamus remitting the matter to the Tribunal and a writ of prohibition or an injunction to prevent the first defendant from giving effect to the decision.  Before the Court today is an amended summons seeking directions to ready the matter for hearing. 

The second defendant has filed an application submitting to any order save as to costs.  The primary relief sought by the plaintiff is the writ of certiorari pursuant to rule 25.06 of the High Court Rules.  The application should have been filed not later than six months after 28 March 2002.  For that reason the plaintiff seeks an order extending time pursuant to rule 4.02.  Counsel for the first defendant opposes an order extending time.  One primary question is whether there is any explanation for the six year delay. 

The delay since 14 March 2008, it is submitted, is explained by the fact that on that day the plaintiff filed proceedings seeking judicial review of the Tribunal’s decision. The plaintiff was then advised that the Federal Magistrates Court had no jurisdiction because of the time limits created by section 477 of the Migration Act 1958 (Cth). The delay since 2002 is explained, it is submitted, by the fact that the plaintiff was advised by a migration agent to apply to the first defendant to exercise its discretion pursuant to sections 48 and 417 of the Migration Act rather than challenging the Tribunal decision in Court.  Several applications were in fact made to the Minister without success.  The plaintiff also made further visa applications which were also unsuccessful.

Counsel for the plaintiff, Mr Karp, pointed to evidence in which the plaintiff said he had not wished to publicise his concerns out of a fear that those whose conduct in Lebanon he claims as possible persecution might cause him harm.  Counsel also points to the fact that the Refugee Review Tribunal itself encouraged the plaintiff to have recourse to the Minister and counsel submitted that the plaintiff lacked full knowledge of the basis on which he could go to the Court and hence was not in a position to make an informed choice about doing so.

It was also submitted that the plaintiff was unable to speak English, ignorant of the law and not well educated.  However, the plaintiff did know that he had the option of going to Court because the migration agent informed him of that fact, although she also informed him that it was very expensive and that she did not encourage it.  In addition, there is nothing to suggest that the plaintiff thought it was not possible to pursue both the route of applying to the Minister and the route of applying to the Court.

The plaintiff relied on a statement of Chief Justice Gibbs which was approved in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 106 [51], 137 [149] and 144 [172]. In R v Ross‑Jones; Ex parte Green (1984) 156 CLR 185 at 194 the Chief Justice said that if a clear case of want or excess of jurisdiction was made out, the writ of prohibition would issue almost as of right. Three points, however, must be noted.

First, Chief Justice Gibbs went on to say that the writ of prohibition remained discretionary and could be refused “if in all the circumstances that seems the proper course”.  Secondly, the key relief sought here is a writ of certiorari.  Thirdly, there is no time limit for prohibition in the High Court Rules but there is for certiorari.  Where a specific time is fixed, the existence of a very long delay must weigh against an extension in “all but very exceptional circumstances”, as Justice McHugh said in Re Commonwealth of Australia; Ex parte Marks (2002) 177 ALR 491 at 496 [16].

The question then is whether this case is very exceptional.  In my opinion it is not for two reasons.  First, the explanations offered for the delay are not taken in their totality satisfactory given the plaintiff’s knowledge of his right to approach the Court.  Secondly, there is no jurisdictional error in what the Tribunal did.  That question turns on a claim by the plaintiff to fear revenge at the hands of the families of some dead gunmen and some surviving gunmen who claimed that he had made an attack on them by the Lebanese Army possible.  The plaintiff contended that the Tribunal had failed to ask itself whether the revenge that it found would be sought against the plaintiff could have a political aspect to it. 

The plaintiff relied on Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533 and submitted that the jurisdictional error found in that case had been replicated in this case. The error found in that case was that the Administrative Appeals Tribunal had proceeded on the view that there is a necessary antithesis between violent retribution and political action. Here it was submitted that the Refugee Review Tribunal had proceeded on the view that there was a necessary antithesis or dichotomy between attacks on the plaintiff motivated by revenge and attacks on the plaintiff motivated by reason of the plaintiff’s perceived political opinions.

The question is really one of construction of the Tribunal’s reasons and counsel for the plaintiff took the Court to the relevant passages in detail.  In my opinion, the Tribunal did not fail to consider whether the enemies of the plaintiff were motivated to harm him by reason of his political opinion.  It appeared explicitly to accept that the surviving gunmen could be motivated by the plaintiff’s political opinion or their perception of it because it said:

The Tribunal is satisfied that, even though a political opinion imputed to the applicant may play some role in the desire of the remaining members of the Takfir wal-Hijra to kill him, this is not the essential and significant motivation. 

The phrase “essential and significant” is a quotation from section 91R(1)(a) of the Migration Act which provides that:

Article 1A(2) of the Refugees Convention . . . does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)that reason is the essential and significant reason . . . for the persecution . . . 

As I read the Tribunal’s decision, its use of the expression “revenge” signified a finding that the motivations of the enemies of the plaintiff rested on reasons personal to the plaintiff so far as his supposed role in the Lebanese Army’s attack on them is concerned as distinct from his political opinions.  Accordingly, it is necessary to reject the characteristically helpful submissions of Mr Karp, counsel for the plaintiff.

In short, while minds might differ on whether or not the Tribunal made a factual error, it did not make any jurisdictional error.  In those circumstances, time should not be extended.  Further, the question which has been agitated between the parties about whether the proceedings should be remitted to the Federal Magistrates Court does not arise.  I order the application for an order to show cause to be dismissed with costs.

AT 11.06 AM THE MATTER WAS CONCLUDED