RE PHILLIP RUDDOCK IN HIS CAPACITY RESPONDENTS AS MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR
EX PARTE APPLICANT S154/2002 APPLICANT/PROSECUTRIX
Re Minister for Immigration and Multicultural Affairs;
Ex parte Applicant S154/2002
[2003] HCA 60
8 October 2003 S154/2002
ORDER
1. Order nisi, granted on 7 November 2002, discharged.
2. Prosecutrix to pay second respondent’s costs.
Representation:
J M Patel for the applicant/prosecutrix (instructed by the applicant/prosecutrix)
No appearance for the first respondent
S J Gageler SC with S B Lloyd for the second respondent (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002
Immigration – Refugees – Refugee Review Tribunal – Procedural fairness – Whether Tribunal misled applicant into believing factual claim had been accepted as true – Whether Tribunal relied on evidence tendered earlier to disbelieve factual claim without giving applicant opportunity to demonstrate evidence was not inconsistent with factual claim – Whether Tribunal relied on belated disclosure of rape incident to disbelieve factual claim in circumstances where belated disclosure might have been explicable – Whether subsequent hearing and provision of written submissions cured any earlier breach of requirements of procedural fairness – Inquisitorial hearing by Tribunal – Whether failure by Tribunal to afford procedural fairness amounting to jurisdictional error.
Constitution, s 75(v) Migration Act1958 (Cth), s 420(2).
GLEESON CJ. The facts of the case are set out in the reasons for judgment of Gummow and Heydon JJ ("the joint reasons"). I agree with those reasons, and would add only two observations.
First, the Tribunal Member's remark that he did not need to ask any further questions about an incident said by the prosecutrix to involve rape was a response to her statement that "I cannot tell this", indicating that she did not wish to be pressed for further details. It is improbable that the Tribunal Member intended to use legal jargon indicating an acceptance of that part of the case for the prosecutrix, as when a judge says to counsel: "I do not need to hear you further". It is improbable in the extreme that the prosecutrix would have been familiar with such legal jargon, and would have understood the remark in that light. In any event, as the joint reasons demonstrate, even if such a misapprehension had been created, it must have been dispelled by what followed.
Secondly, the particulars in the order nisi complain of a denial of procedural fairness by the creation of a wrong and misleading impression and a false belief that the Tribunal had accepted part of the prosecutrix's evidence. I do not accept that contention. Additionally, however, it should be noted that what is alleged is materially different from a complaint that, apart from the creation of a misleading impression or a false belief, the Member in some…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Re Ruddock; ex parte Applicant S154/2002 [2003] HCA 60
Case
[2003] HCA 60
Decision Date
CaseChat Overview and Summary
The case of *Re Ruddock; ex parte Applicant S154/2002* involved an application for a protection visa by a Sri Lankan national of Tamil ethnicity and Christian religion. The applicant's initial application was refused, and a subsequent review by the Refugee Review Tribunal also affirmed this decision. The applicant then sought judicial review of the Tribunal's decision in the Federal Court of Australia.
The central legal issues before the High Court of Australia concerned whether the Refugee Review Tribunal had denied the applicant procedural fairness. Specifically, the court had to determine if the Tribunal had misled the applicant into believing a crucial factual claim had been accepted, if it had relied on earlier evidence to disbelieve a factual claim without affording the applicant an opportunity to explain potential inconsistencies, and if it had improperly relied on the belated disclosure of a rape incident to disbelieve the applicant's claim without allowing her to fully elaborate on the circumstances. The court also considered whether a subsequent hearing and the provision of written submissions could cure any earlier breaches of procedural fairness, and whether any failure to afford procedural fairness amounted to jurisdictional error.
The High Court found that the Tribunal had indeed failed to afford the applicant procedural fairness. The court reasoned that the Tribunal Member's questioning and comments during the hearing could have reasonably led the applicant and her representative to believe that her account of a rape incident, which formed a significant part of her fear of persecution, had been accepted as fact. The Tribunal subsequently disbelieved this claim without giving the applicant a full opportunity to elaborate on the circumstances of its belated disclosure, nor did it fairly inform her that this failure to mention it earlier was influencing the decision against her. The court emphasised that while a third hearing would be unfortunate, the seriousness of the issues and the high standards of procedural fairness required meant that the applicant was entitled to have her story heard and considered properly.
Consequently, the High Court made absolute the order nisi previously granted. A writ of certiorari was issued to quash the Tribunal's decision of 17 July 2001, and a writ of mandamus was issued directing the Tribunal to rehear and determine the applicant's application according to law. The applicant was to pay the second respondent's costs.
Orders
Orders of the court
1. Order nisi, granted on 7 November 2002, discharged.
2. Prosecutrix to pay second respondent’s costs.
Background
Background to the litigation
Counsel for the prosecutrix adopted as the essence of her case a statement made by Gaudron J about that observation:"If I had been appearing for the applicant and the presiding member had said that to me, I would have thought that has been accepted as fact ….It is not a question of what the Tribunal was thinking. I am not in the least bit concerned what the Tribunal is thinking. The question from a procedural fairness point of view is what the applicant, but perhaps more significantly her representative, thought was indicated by that. Ordinarily, if a court says that to you, a wink is as good as a nod and you sit down." The background to the proceedings The prosecutrix is Sri Lankan in citizenship, Tamil in ethnicity, and Christian in religion. She was born on 18 January 1974 in Kandy. In 1994 she went to live in Colombo. In 1995 she moved to Nilambe, a town near Kandy. In 1996 she moved to the Maldives and lived in a de facto relationship with her employer, a Pakistani national of Muslim religion. She made several return trips to Sri Lanka in 1996-1998. She married her employer on 20 December 1998 and they arrived in Australia on 31 December 1998, together with the prosecutrix's mother. On 9 February 1999 the prosecutrix applied for a protection visa. Her contention was that she was a Tamil suspected by the authorities of being a member of the Liberation Tigers of Tamil Eelam ("LTTE"), a Tamil separatist group. On 12 March 1999 a delegate of the second respondent refused the application. He did so on the ground that she was not regarded as being associated with the LTTE, had never been arrested or detained under anti-terrorist legislation, had been free to leave and return to Sri Lanka in the past, was of no interest to the Sri Lankan authorities, had no well-founded fear of persecution, and hence was not owed protection obligations by Australia. On 29 March 1999 the Tribunal received an application to review the delegate's decision. Among the material relied on to support the application was a report by a consultant psychologist with whom the prosecutrix had had ten consultations in 1999-2000, "mostly with her mother … sometimes with her husband and, more rarely, alone". On 29 March 2000 the Tribunal, after a hearing conducted by Mr J Vrachnas on 8 February 2000, affirmed the delegate's decision. On 31 August 2000 the Federal Court of Australia set aside the decision of 29 March 2000 on the ground that the Tribunal had failed to make findings about a claim made by the prosecutrix for the first time at the hearing on 8 February 2000 that she feared being recruited by the LTTE. The matter was remitted to the Tribunal. An oral hearing of the Tribunal was arranged for 1 June 2001 and conducted by another Member, Mr J C Blount. The prosecutrix's evidence was given in Tamil and translated into English by an interpreter. The prosecutrix was assisted by a migration agent ("prosecutrix's adviser"). At that hearing the Tribunal Member said he would have regard to evidence previously provided by the prosecutrix. He questioned her about her movements from Sri Lanka to the Maldives and back in 1996-1998. He then questioned her about her claims to have moved about Sri Lanka from 1984 on. After asking some questions seeking to clarify whether the prosecutrix had stayed in Colombo in the period before moving to the Maldives in 1996, and being told that she had been staying at Nilambe, the Tribunal Member asked the following questions[1]:[1]"M" refers to the Tribunal Member, and "I" to the interpreter."MDid your mother arrange the travel and employment in the Maldives for you?I No Sir I ...M Do you want me to repeat the question?I Yes Sir I ...MI was asking whether when you went to the Maldives whether it was your mother who arranged your travel and employment there?IIn the meantime there was an incident that happened in my life.MWhich was in Nilambe?IYes.MWhen was this?IIn 95.MWhen in 95 you recall? In the middle of the year, the end of the year?IIt should be I think in the end of the year.MOk. What was that happened?IThis has not been described in the statement. My mother doesn't know. Nor does my husband know.MPlease continue.II have described in the statement the saying that one night some boys came and knocked at the door. Later mother came no no that elderly lady. That elderly lady came and she scolded and wanted them to go. I have described this in the statement. Later, the following day police came there. Police came and asked are you trying to threaten us with Tamil boys? Are you in the LTTE? They took me. Later I was kept in the police. One thing happened to me Sir. So far I have not revealed this to my mother because my mother has pressure problems. And in the future she should not know about this. They raped me. Owing to this fear, I asked my mother to take me away. I cannot tell this.MOk. I don't need to ask you any further question about that particular incident. Now, after that you went to the Maldives and you became established there with employment and after a period with a relationship with a person who later became your husband?IYes." The italicised sections of the transcript above ("italicised passages") were relied on in the particulars included in the Order Nisi.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
GUMMOW AND HEYDON JJ
KIRBY J
CALLINAN J
Conclusion – the excuses fail: None of the claimed explanations or justifications for the course that the proceedings took before the second Tribunal is therefore persuasive.Conclusion: constitutional writs should issue It is true that a third hearing before the Tribunal would be a misfortune. However, as this Court has repeatedly said, the issues raised by applications of this kind are serious and important for the applicant, for the Australian population and for the nation, fulfilling its obligations under international law[42]. High standards of procedural fairness are required, and usually observed, by the Tribunal. [42]Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at 69-70 [196]-[198]. In this case a mistake occurred. The obligation to repeat the exercise does not ensure that the prosecutor will ultimately succeed on the merits. Nor is that its object. But it would ensure that she be allowed to recount her story about being raped by police officers of the Sri Lankan government as a factual foundation for her claim of having a well-founded fear of persecution. Further, she would not then have her allegation disbelieved, if it is, without a full opportunity to elaborate it as she wishes; nor have her allegation discounted on the basis of her failure to mention the rape in earlier records without being fairly told that such considerations inclined the decision-maker to an adverse conclusion about the truth of that allegation. She could then give her answer, a chance that was denied to her by the course taken in the hearing in the second Tribunal. The prosecutor is entitled to succeed.Orders The orders nisi granted by Gaudron J should be made absolute. A writ of certiorari should issue to the Tribunal to remove into this Court the decision of the Tribunal of 17 July 2001 so that the decision might be quashed. A writ of mandamus should issue to the Tribunal requiring it to rehear and determine the prosecutor's application according to law. The prosecutor should have leave to apply for any other relief, by way of injunction or otherwise, as might be needed, to give effect to the foregoing orders. The Minister should pay the prosecutor's costs in this Court, except for the special interlocutory costs ordered by Gaudron J in favour of the Minister. The question in this case is whether the refusal of a grant of a protection visa to the prosecutor involved a denial of natural justice to her, specifically, by an alleged intimation by the first respondent, the Refugee Review Tribunal ("the Tribunal") that the prosecutor had satisfied it of a matter, and in respect of which the Tribunal subsequently made a finding adverse to her.Facts The prosecutor is a Christian Tamil Sri Lankan who was born in Kandy in 1974. She entered Australia accompanied by her husband and mother in 1998. She applied for a protection visa in 1999. A delegate of the second respondent refused the application. She sought a review of that refusal by the Tribunal. The prosecutor's claims
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
GUMMOW AND HEYDON JJ,
KIRBY J,
CALLINAN J