QLN146 v Republic of Nauru

[2018] HCATrans 179

[2018] HCATrans 179

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M26 of 2018

B e t w e e n -

QLN146

Appellant

and

REPUBLIC OF NAURU

Respondent

BELL J
KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 SEPTEMBER 2018, AT 2.16 PM

Copyright in the High Court of Australia

MS C.M. HARRIS, QC:   If the Court pleases, I appear with MR N.M. WOOD, for the appellant.  (instructed by Grindal & Patrick)

MS C.L. SYMONS:   If the Court pleases, I appear on behalf of the respondent.  (instructed by Republic of Nauru)

BELL J:   Yes, Ms Harris.

MS HARRIS:   Thank you, your Honour.  As the Court is aware, this appeal raises a very narrow point and the point is as to the precise bases upon which the Tribunal did not accept claims made by the appellant to have fled his hometown of Achuveli in Sri Lanka for the reason of escaping local militants who suspected him of involvement with the LTTE.  It involves the proper interpretation of the Tribunal’s written statement prepared under section 34(4) of the Refugees Convention Act.  It is useful as a starting point to acknowledge that it is uncontroversial and it was uncontroversial below that the Tribunal identified multiple reasons that cumulatively led to the rejection of the claim as to why the appellant left in the way that he did. 

First, the Supreme Court accepted that there were reasons which cumulatively led the Tribunal to reject the appellant’s claim to have been targeted by the authorities for his support of the LTTE.  That is found at paragraph 24 of the Supreme Court’s reasons.  Now, the way in which the Court arrived at that really was as a result of both the way the Tribunal’s reasons are expressed and the approach taken by the parties below.

In particular, your Honours, if I can draw the Court’s attention to some transcript in the book of further material at page 104 and it contains a helpful summary of the concession made by the Republic about the way in which the Tribunal referred cumulatively to multiple matters in its reasons.  At approximately line 10 on page 104 counsel for the Republic refers briefly to the concession that the Republic made:

my learned friend is quite correct in his understanding that we do accept that these matters as a whole appearing at paragraphs 28 through to 51 should be understood as operating cumulatively, and we can’t avoid the reference to the words ‑ I think it’s “taken together” or something to that effect.

If I can interpose, counsel for the Republic is referring to the words of the Tribunal at paragraph 50 of its reasons.  I can take the Court to that.  A bit further down, at approximately line 25, counsel for the Republic states:

it’s in that context that we say notwithstanding the reasons operated cumulatively, that doesn’t mean that a view could be taken that one aspect of such reasons was not sufficiently material to compel the court to exercise the discretion to remit the decision as an example.

That is important because it is in fact not the way the Supreme Court decided to determine this issue.  The Supreme Court determined the issue not by accepting that the finding rejecting the bribe as implausible was made.

BELL J:   Did you say the finding rejecting that a bribe had been made?

MS HARRIS:   Yes, the conclusion, your Honour, perhaps is more appropriate than the word “finding”.  First if I can go to the Supreme Court’s conclusion, your Honour.

BELL J:   Yes.  That is the matter that I was raising with you.  At appeal book page 46, paragraph 36, Justice Marshall says:

Here, the Tribunal observes, without making a precise finding about whether a bribe was made, that paying bribes to authorities to leave Sri Lanka is inconsistent with being in fear of authorities.

MS HARRIS:   Yes, your Honour, and the court goes on:

Regarding the reasons of the Tribunal as a whole and fairly, it is clear that at [37] to [39] the Tribunal records the question it put to the Appellant and the answers he gave but nonetheless it went onto accept that he may have left his local area in the way he described. 

Now, what I was wishing to put to the Court is that the Tribunal did not say – we accept that the – the Supreme Court did not say that the Tribunal had accepted the proposition put by counsel for the appellant before it – that it had rejected, in effect, that the claim that an army commander would accept this bribe in order to facilitate the appellant’s travel was implausible.  That was the entire premise of the three errors of law that the appellant wished to put to the Supreme Court.

So, it was important – and I need to take the Court to this – that it could be said that the Tribunal, in fact, did reject as implausible the idea that an army commander would accept a bribe of two lakhs to, in effect, take the risk of facilitating this person’s travel out of Achuveli to Colombo.  That was the premise.  The Supreme Court did not, for example, accept that premise and take the invitation to say it was not – if that, in fact, was rejected, that was not really material.

BELL J:   Why would not one read it as the Tribunal expressed some scepticism about the assertion to have paid the bribe in the amount stated but, as Justice Marshall pointed out, all of this was in the context of explaining the inconsistency that the Tribunal identified which went to the credibility of the appellant’s account between, on the one hand, describing how he had been hiding out in the roof space of his sister’s house and other people’s houses and yet going to the local commander of the army to pay a bribe.  The Tribunal had some difficulty with accepting that, and that is the inconsistency that Justice Marshall identifies at paragraph 37 as the nub of the matter.

MS HARRIS:   Yes, your Honour.  What we say about that is that there was not just a single finding about inconsistency.  It appears that what was exercising the Tribunal were two matters and it arose from the way the appellant responded to questions during the hearing before the Tribunal.  I will take the Court to that.  In paragraphs 38 and 39, and then a bit later, it appears that there was a concern ‑ ‑ ‑

GORDON J:   This is in the Tribunal’s reasons?

MS HARRIS:   I am sorry; this is at page 15 of the core appeal book.

GORDON J:   My problem with this sort of analysis is that it is taking sentences out of context.  I do not understand where it gets you.  You have five identified bases for rejecting the ultimate submission that he was targeted by the LTTE – five independent bases - and taking those requirements, all those amounts together they come to the conclusion that despite having put each of these matters to the appellant they are not satisfied by the explanations given or the answers given.  What is the problem?  We do not sit here and go through sentence by sentence and try and pick out whether or not this is right or this is wrong, do we?

MS HARRIS:   No, your Honour, but the first matter I would need to point out is, on a construction of the Tribunal’s reasons, why there was a shorthand used by both the Supreme Court and a numbering system used by the Tribunal of reasons for rejecting the claim.

GORDON J:   Five subject matters.

MS HARRIS:   Yes, there were five subject matters.  In our submission, the second subject matter that is covered by paragraphs 37 to 39 ‑ ‑ ‑

GORDON J:   Is the only one you make complaint about.

MS HARRIS:   It is the only one we make complaint about and it covers two important matters.  The way we put that is there was a concern as to the inconsistency of the behaviour that you are hiding out in rooves of other people’s homes but then you come out and bribe a commander; then a second concern as to the implausibility of the appellant’s explanation for that.  So the appellant when asked ‑ ‑ ‑

GORDON J:   Is it implausibilities or is it just the fact that he is asked a series of questions which are set out in the applicant’s further material in the transcript and they have complete scepticism about his responses to those questions?

MS HARRIS:   And if that is the case, your Honour, that was the point at which the errors of law are alleged, that there needed to be a proper engagement with explaining the factual basis, that it would be implausible to say that an army commander in Sri Lanka would not be susceptible to a bribe.

GORDON J:   Why would you need to go on to make that finding?  Here you have the Tribunal who puts a series of questions about just dealing with this second base for the moment ‑ ‑ ‑

MS HARRIS:   Yes.

GORDON J:   ‑ ‑ ‑ saying, listen, I find this odd.  I have a doubt about the fact that you say you can hide out in the roof and at the same time you are out there bribing an army commander in daylight, and the response from your client is, good question.  The response is then given and the Tribunal says, we are completely sceptical about it.  We do not accept it.  We are not persuaded by it.

MS HARRIS:   The difference between the inconsistency question and then the implausibility question – there is a difference, your Honour, in that he says, I was able to get out in the way I describe, notwithstanding I was still afraid of authorities because there are corrupt army commanders, this was one of them and I was able to bribe him to facilitate my safe exit from Achuveli. 

So, rejecting that as being difficult to believe, or implausible – and it is clear this was rejected by reason of paragraph 51 of the Tribunal’s reasons – is a different matter to saying, if you like, that it is inconsistent that you would be hiding and then you would come out and see an army commander.  The very reason that he was saying it is not inconsistent is because I was able to approach a corrupt army commander and in Sri Lanka money can buy anything, and it did.

BELL J:   But, Ms Harris, the Tribunal in terms states that it does not underestimate the extent of corruption in Sri Lanka even during the war years and it is willing to accept that the applicant may have had access to money.

MS HARRIS:   Yes.

BELL J:   It accepts those things.  One cannot pick out of the numbers of paragraphs dealing with this subject matter and then assert an error of law in the failure to come to a finding about whether, in fact, there was a bribe to an army commander or not.  The Tribunal is pointing to a broader implausibility about the story.

KEANE J:   As one of five accumulated areas of concern, in relation to each of which they express their scepticism and having detailed their scepticism about each of them, reaches a final conclusion that they simply do not accept his story on the ultimate question as to why he left Sri Lanka.  They do not make intermediate findings.  They refer to the difficulties in relation to each of these questions and are not satisfied by the answers they get in relation to them and, then, they do not accept his story.

MS HARRIS:   Your Honour, that is correct in that the Tribunal has said – taking all of these matters, in fact cumulatively, this is the problem – that we do not accept the account.  But, it is not possible and, of course, this puts to one side whether your Honours would accept or not that there was a discrete matter on which the implausibility of the bribe was a discrete matter on which the Tribunal did make a finding which could then give rise to allegations of an error of law, but it is not possible to extricate the importance of that from all of the reasons taken together, cumulatively, which led to the Tribunal’s rejection of the claim that the appellant left Achuveli in the way, and for the reasons, he described.

KEANE J:   That might be so if they had actually made a finding to the effect that they found that – if they found as a fact that he had not bribed anyone to get out; they did not do that.

MS HARRIS:   Can I put to your Honour ‑ ‑ ‑

KEANE J:   They just did not do it.  They just did not do it, Ms Harris.  They made it perfectly clear that they were willing to accept that army commanders in Sri Lanka were bribable.

MS HARRIS:   Your Honour, the way we put it and if I can just finish on that question of why there is a factual finding to that effect that we say was made is that the Tribunal has described at 39 what I:

put to the applicant that it seemed difficult to believe he would have been able to bribe the army commander, even with a sum of Rs 2 lakhs, to allow him to escape to Colombo if he had genuinely been suspected of involvement with the LTTE.

So, that is the concern about implausibility that the army commander would take that risk because it goes on to describe the issues with that.  At paragraph 50 ‑ ‑ ‑

GORDON J:   But the problem with that, even take that as its highest, just accept it, you have got to read the rest of the paragraph and the other concerns about it are detailed and specific.  In a sense, they are putting to him practical questions about how it happened.  They are asking him, assuage my concerns about this because I just do not get it and there is no response from your client.  None of that material is addressed in a sense, if you go to the transcript.

MS HARRIS:   In respect of – well, the Tribunal does refer at 39 to one explanation that he has given, he has given ‑ ‑ ‑

GORDON J:   They do not like it.

MS HARRIS:   No, they do not tell us whether they like it or not.  They set out the claims here.

GORDON J:   Well, they say:

In response he suggested there had been an incident elsewhere –

and we know from the transcript, I think, the Tribunal member puts to that person that is an allegation, not a finding, and then it goes on:

Asked if he had been able to pass through . . . Asked if he meant that [he was] able to bribe –

him, goes through different other questions.  In a sense, you are asking us to make new findings.  I mean, you are asking for merits review.

MS HARRIS:   We do not seek that, your Honour.  If it is not accepted, our ground of appeal will not succeed, but at the heart of our ground of appeal is that there was a premise and that was that the Tribunal found that it was implausible that the appellant could successfully have bribed an army commander, that the army commander could have taken that risk, and because that was the premise on which the three errors of law that the appellant sought to raise before the Supreme Court was put, the Supreme Court’s determination that, in fact, there was no such finding so there is no premise so I am not going to proceed to consider the errors of law, that would be the error in the Supreme Court’s approach.

It could have gone further and said, well, I accept perhaps the way that the Republic now puts it that it may have made that finding or it may not have made a finding one way or the other but for these reasons I do not think it is material; that is not what the Supreme Court elected to do.  It is that that we say is in error in the judgment of the Supreme Court.  We do not then seek that this Court would engage in any process of ‑ ‑ ‑

BELL J:   The error – can we just go back to the amended notice of appeal in the Supreme Court ‑ in relation to this second subject matter was the Tribunal’s asserted failure to identify any reason why it did not accept the appellant’s claims in this respect, or, if it did accept his claims to have bribed the officer, the failure to give adequate reasons for what?

MS HARRIS:   For the rejection of the claim put forward, that I was able successfully to bribe an army commander in order to leave.

BELL J:   Then, thirdly, a no‑evidence ground.  The no‑evidence ground was?

MS HARRIS:   That there was no evidence to conclude that it is implausible that a local army commander in Sri Lanka would accept a bribe.

BELL J:   And that is maintained in the face of the Tribunal’s stated recognition that it did not underestimate the extent of corruption in Sri Lanka or doubt that the appellant had wealth.

MS HARRIS:   In light of that acceptance, your Honour, one might expect the Tribunal to go further and say, we accept all of that but here is why we do not think it happened in this case.

BELL J:   If you were teaching law students the effect of Wu Shan Liang, this would perhaps be a textbook example.  Ms Harris, the Tribunal was not obliged to make intermediate findings in respect of every matter that bore on its ultimate conclusion that it could not accept the credibility of the essential claims that were made.

MS HARRIS:   We would certainly accept that, your Honour.  The point that we make is that that is not the way the Supreme Court disposed of this appeal.

GORDON J:   Could I test that proposition in one aspect:

MS HARRIS:   Yes, your Honour.

GORDON J:   I must say that, reading the decisions of Justice Marshall, had understood that when one read paragraph 24 and following he was identifying that there were these five cumulative requirements which was the common ground between you and that you only sought to challenge two of them.  We will put one aside because that is not the subject of challenge any more.  So you are back to the same problem, are you not?  To suggest that Justice Marshall did not deal with it on the grounds of materiality is, in a sense, not right, is it?  I mean, he saw it in context.  That is the reason why you get the analysis at paragraphs 36 and 37, is it not:

Reading the reasons of the Tribunal as a whole –

He is not looking at this second basis in isolation. 

MS HARRIS:   No, your Honour, but we do say that it was a material step in his reasoning in paragraph 36 to say that the finding just was not made and hence for that reason did not proceed to consider these three errors of law that were said to affect that finding.

BELL J:   The errors of law depend upon a finding or otherwise respecting the paying of the bribe to the army commander.  That is, as his Honour points out, not necessary to understand the reason informing the rejection of the appellant’s credibility on this factual matter, and that is because the inconsistency was in the account.  We have been through this before.

MS HARRIS:   Yes, and we have also addressed in our written submissions as to how we say they are slightly different, so I will not go further with that, your Honours.

I cannot take this any further than the proposition that we have put, that the error that we say the Supreme Court fell into was to not accept the fact that a finding had been made.  It did not dispose of it on any other ground ‑ that it was not material or no error could possibly be demonstrated in a fact of that nature.  It determined the matter on the basis that the finding had not been made and, for the reasons that we have put in our written submissions, our contention is that it had been.  If the Court pleases.

BELL J:   Yes, thank you.  The Court will adjourn briefly to consider the future course of the matter.

AT 2.39 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.48 PM:

BELL J:   Thank you, Ms Symons.  We do not need to hear from you. 

I will ask Justice Gordon to give the first judgment.

GORDON J:   The Refugee Status Review Tribunal (“the Tribunal”) affirmed a determination of the Secretary of the Department of Justice and Border Control that the appellant was not recognised as a refugee under the Convention relating to the Status of Refugees (1951) as modified by the Protocol relating to the Status of Refugees (1967) and was not owed complementary protection under the Refugees Convention Act 2012 (Nr).

The Tribunal rejected the appellant’s claim that he had been targeted by the Sri Lankan authorities for supporting the Liberation Tigers of Tamil Eelam (“LTTE”).  Under the heading “[t]argeting of the applicant”, the Tribunal addressed five separate bases for scepticism as to the appellant’s claims.  That section of the Tribunal’s reasons for decision concluded in the following terms:

“Taking these matters together the Tribunal . . . does not accept that the [appellant] was targeted by the authorities for supporting the LTTE, as he claims.  The Tribunal does not accept that his house was visited by army and paramilitary personnel who were searching for him, that his wife was assaulted by such people, that he went into hiding in Achuveli [sic] to avoid capture or that it was for such a reason that he and his family travelled to Colombo and later left Sri Lanka to go to India, paying large bribes to be able to do so.  The Tribunal does accept that he was arrested and briefly detained in Colombo in December 2007, and that he suffered a physical assault while in custody, but it finds that his release after a short period is inconsistent with his claim to have been targeted by the authorities for supporting the LTTE. 

In making these findings the Tribunal has had regard to the representative’s oral submissions to the effect that people do not always act rationally, and the fact that they may do things which seem odd does not in itself mean their account is untrue.  Even giving these cautionary remarks their full weight, however, the Tribunal is not satisfied that the concerns about the credibility of the [appellant’s] claims which it put to him at the hearing can be dismissed, as the representative suggested, as simple or mere speculation.  The Tribunal does not accept, in conclusion, that the [appellant] was of any adverse interest to the police, military or other authorities at the time he left Sri Lanka.” 

The appellant unsuccessfully appealed to the Supreme Court of Nauru. 

The appellant now appeals to this Court as of right.  The appellant contends that the issue arising on appeal is narrow.  The appellant does not challenge each of the five identified bases.  The appellant’s complaint concerns three paragraphs, in effect, ([37]‑[39]), addressing the second basis - the Tribunal’s scepticism as to the appellant’s claim of the means by which he fled his home town in Sri Lanka and, in particular, a finding by the Tribunal that it was “difficult to believe” that the appellant would have been able to bribe a local army commander to assist him to flee. 

In my view, the appeal should be dismissed. 

First, as is always the case, what is said in the Tribunal’s reasons must be understood in the context of the whole of the reasons.  Examining sentences, or parts of sentences, in isolation is apt to lead to error.  Here, the Tribunal’s reasons record a number of reasons for doubting the truth of the appellant’s claim that he had been targeted by the Sri Lankan authorities for supporting the LTTE.  Put in different terms, the evidence adduced by the appellant before the Tribunal and the Tribunal’s assessment of that evidence in paragraphs [37]‑[39] of the Tribunal’s reasons was not dispositive of the review or the decision of the Tribunal.

Second, adverse findings as to credibility are a matter for the Tribunal and considerable caution must be exercised before reaching the conclusion that adverse findings as to credit expose legal error.  As the Tribunal’s reasons for decisions stated and the transcript of the hearing before the Tribunal recorded, during the course of the hearing the Tribunal put its concerns about the bribery allegations to the appellant but the Tribunal was not satisfied that its concerns had been assuaged and could be simply dismissed.

Third, in addition to putting its concerns about the bribery allegations to the appellant during the hearing, the Tribunal addressed that evidence in its reasons.  The Tribunal stated that it did not underestimate the extent of corruption in Sri Lanka, even during the war years, and that it was willing to accept that the appellant may have had access to some wealth.  However, notwithstanding those matters, taking into account the totality of the five separate bases identified, the Tribunal did not accept the appellant’s claims that he was targeted by the Sri Lankan authorities for supporting the LTTE. 

Fourth, in substance, the appellant contends that the Tribunal should have made further findings that he fled his home town in Sri Lanka and that the appellant would have been able to bribe a local army commander to assist him to flee.  The Tribunal was not obliged, in my view, to make such findings given its general scepticism as to the appellant’s account.  To assert in substance that it was so obliged is impermissibly to invite review as to the merits of its decision.

Finally, the appellant’s argument in this Court focused on an asserted error in the Supreme Court’s acceptance that the Tribunal found that the appellant may have bribed an army commander but its failure to find that the commander would not accept a bribe.  That argument overlooks the Supreme Court’s analysis which is that the Tribunal did not make a precise finding about whether a bribe was made in circumstances where the inconsistency which the Tribunal identified was “on the one hand hiding out from authorities and on the other hand making a bribe to an army commander”. 

For those reasons, the appeal, in my view, should be dismissed with costs.

BELL J:   I agree.

KEANE J:   I agree.

BELL J:   The order of the Court is the appeal is dismissed with costs.  Adjourn the Court to 9.30 am tomorrow for the pronouncement of orders and otherwise to 10.00 am.

AT 2.56 PM THE MATTER WAS ADJOURNED