SZQGJ v Minister for Immigration and Citizenship and Anor

[2012] HCATrans 298

[2012] HCATrans 298

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S143 of 2012

B e t w e e n -

SZQGJ

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERIT REVIEWER

Second Respondent

Application for special leave to appeal

HEYDON J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 NOVEMBER 2012, AT 1.59 PM

Copyright in the High Court of Australia

MR L. BOCCABELLA:   May it please the Court, I appear with my learned friend, MR W.J. MARKWELL, for the applicant.  (instructed by Rasan T. Selliah & Associates)

MR D.H. GODWIN:   May it please the Court, I appear for the first respondent, and I note there is a submitting appearance for the second respondent filed on 18 June.  (instructed by Australian Government Solicitor)

HEYDON J:   Yes, Mr Boccabella.

MR BOCCABELLA:   Your Honours, the special leave point is this, I submit:  that when governments set up these informal systems of review leading to a recommendation to a final decision maker, those conducting these reviews must apply the principles of natural justice with rigour.  Indeed, in my submission it follows that those principles, with appropriate adjustments for practicalities, ought to be basically the same as those principles which apply to tribunals.

Regrettably, I submit that, by implication, the Federal Court decision in this case basically determined that these principles are substantially diluted in practice, and I will explain why that is the case shortly.  But the special leave point, as I go on to say, is this:  that unless these principles of natural justice are applied with appropriate rigour and to the appropriate standards, there is a serious risk that these matters will simply be decided by process and ultimately these are life‑destroying decisions that are made.

GAGELER J:   What do you mean by “process”?

MR BOCCABELLA:   One after the other, to a formula.  I submit what has happened in this case – and I will go to that shortly – is that the crux of the applicant’s claim was simply not considered as required by law.  Indeed, may I go to that now?  Could I take you to the application book?  Of course, your Honours are no doubt aware of the law in these situations.  An applicant for a refugee, of course, has to show a real chance of persecution for a Convention reason – the applicant being a young male, Tamil, whose family has been closely associated with the Tamil Tigers and essentially, as is shown on the material, he on his case was persecuted because of his membership of that group.

Your Honours, could I take you to page 5 of the statement of reasons of the independent merits review body.  As your Honours are aware, these bodies stand outside of the statutory regime of the Migration Act and therefore there are no issues of jurisdictional error as such because the privative clause, of course, does not apply to this decision but, as this Court has ruled in M61, they are nevertheless subject to the prerogative writs under section 75 of the Constitution.

The decision maker, in effect, being the independent merits review decision maker appointed administratively, at page 5 noted the claims in evidence in paragraph 10, where it says he claims that the CID – the police –went to the house first of all in Jaffna but ultimately ascertained the family address in Colombo, and he made claims that his father was not there, but he was arrested, being the only male, and he goes on to say:

I was beaten and asked about my dad being part of the LTTE –

the Tamil Tigers –

I was also accused of being a member . . . I was beaten for each day for 5 days, then mum got help from others and paid money –

Being beaten for five days for each day, of course, fits the classic definition of “torture”, and the torturers took a bribe to let him out, and essentially that is his case.

Now, when we move over to the rest of the written record on page 6 at about line 32, that sets up the evidence of his father being perhaps, for want of a better term – page 6, halfway down the page – no one at least is a prominent person or certainly recognised at least by the leader of the LTTE, Prabaharan, and indeed there is a photograph of his father with the leader of the Tamils, and that establishes that issue.  On page 6, at about line 45, he repeats that he was released because his mother paid money.

The country information, the information collected by the various independent authorities, shows on page 8 at lines 49 and 50, by way of example:

The US State Department Report detailed –

and this is in effect post the so‑called settlement –

widespread abuse and torture including beatings, burning, near drowning, electric shock and asphyxiation with plastic bags –

That paragraph also states:

There were well documented reports of torture being used on a widespread basis by security forces and in particular against those in detention.

Then on the next page at page 9, the International Crisis Group pointing out that:

The military has been maintaining extra-legal detention centres for an estimated 11,000-13,000 people suspected of LTTE ties.

Et cetera.  Of course, it is the applicant’s case that he was part of that in the sense that they first went looking for him in Jaffna.  Perhaps if we could quickly move over to page 11, in lines 45 to 50:

In early June 2009, the Sri Lankan parliament extended the state of emergency –

And of course extended it again and, as I understand it, at the material time the state of emergency exists.  Now, had this just been a case of the tribunal simply determining I do not accept the applicant’s evidence then obviously we would not be here.  But on page 18, at about 24 to 25, the merits review decision maker reports:

I find the claimant was for most part a credible witness, however I find that he was not a credible witness in relation to some aspects of his claims and as detailed below.

One would have expected then to see a list of the things that the tribunal member did not accept, as detailed below, but that detail does not include the torture in detention and does not include the bribes paid by his mother to get his release.  Indeed, the decision maker reports, at line 45:

I consider that at that time when mass round ups, arrests and detentions were taking place that the fact of his being released clearly indicates no adverse interest.

But his case was he was released because bribes were paid.  Of course, history records, and by common sense one knows that people who do torture are of course corrupt and history records that torturers take money for the purposes of stopping the torturing.

So the difficulty that the applicant experienced in this particular review was that the fundamental basis of his claim was the torture while in detention, and of course the fact that he was released from detention because of paying the bribes.  That is just simply not mentioned.  It is not a case of the decision maker might have overlooked this or overlooked that or overlooked this incident or that incident.  This is the fundamental basis of his claim, torture in detention, on the basis that if one is tortured in detention for a Convention reason, it may very well happen again and therefore he has a real chance of persecution if he is returned.

So it is not a case of reading these reasons with a fine toothcomb looking for error.  It is simply a case that this decision maker just has not considered the very basic core claim by the applicant.  Indeed, he says – this is the decision maker – “I find the claimant for most part a credible witness”.  He goes on to say he exaggerated some aspects of his claims, as detailed below, but the detail does not mention the torture or the bribes.

GAGELER J:   Do you accept that whether he did or did not consider the claim is a question of fact?

MR BOCCABELLA:   I do not, your Honour, because the wrong test was simply applied, and that is an important issue, and it turns on the word “consider”.  Indeed, may I develop this point very briefly?  In the Federal Court decision, at page 46 of the appeal book, his Honour observes at the bottom of the page:

The appellant must demonstrate on the balance of probabilities that the Reviewer did not consider the relevant claims –

and referred to the decision of SZDXZ.  Now, the word “consider” is problematical, and again, it is not a question of mere semantics because the High Court has not used the word “consider” in M61 and in Dranichnikov.  The error that his Honour, I submit, made comes from a misapplication of the Full Federal Court decision of SZDXZ.  Your Honours have access to the bundle of materials which has my authorities.  It is set out on page 69, the relevant extract that I wish to take you to.  The difficulty is that SZDXZ was a classic case, or an allegation, of failing to consider a relevant circumstance or relevant fact.  The consideration here was a letter from the police, and in the middle of the page, at paragraph 25, their Honours say:

However, the appellants are obliged to do more than point to material capable of supporting an inference that the Tribunal did not consider the Police letter.

In other words, there is a bundle of things, and it possibly did not consider one matter.  Then their Honours went on to point out, at page 70 of my bundle, at paragraph 29:

Thirdly, the Tribunal’s failure to refer to the Police letter could reflect the Tribunal member’s appreciation that –

it was not required to do so.  Indeed, as the learned magistrate observed, the letter made no new claims, nor did it add any integer of a claim on behalf of the appellants.  It was at best evidence inconsistent with the tribunal’s conclusions, et cetera.  So this case was about a failure to consider a document, but that is not what the applicant in this case complains of.  Going now to page 40 of my list of authorities in the case of M61, this Court of course articulated the appropriate test.  At paragraph 90:

failing to address one of the claimed bases for the plaintiff’s fear of persecution meant that the Minister was not informed about a matter that bore upon the question that the Minister had asked to be considered:  whether Australia owed the plaintiff protection obligations.

This case, as your Honours will recall, was a case involving this informal merit review process.  The court there referred to Dranichnikov and, your Honours, on page 49 of my bundle, their Honours there from M61 footnoted paragraph [24], which basically is, I submit, on all fours with the applicant in these proceedings:

To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least a failure to accord Mr Dranichnikov natural justice.  A failure to accord natural justice did not provide a statutory basis for a review of a decision –

and has followed those issues there:

The question remains however whether what occurred, either characterised as a failure to accord natural justice or as that, and more, which we consider it to be, including a constructive failure to exercise jurisdiction, entitles Mr Dranichnikov to relief under s 75(v) of the Constitution.

So the case is vastly different to the case of SZDXZ where there is a pile of material and some of it may or may not be considered.  This is simply the wrong test being applied.  It is not a question of whether the decision maker considered a document or a fact; it is a question of did the decision maker respond to, as the words were used in Dranichnikov, or did the decision maker address the claim?  These are not just considerations; I have got to consider 10 pieces of evidence.  This is:  did the decision maker address the claim?  This is not a question of fact.  This is why I submit that the special leave point is that some rigour needs to be put into these informal merit review bodies because if they are not required to apply the rigour, you will get this looseness of approach which we get here.

To have a man articulate a claim of torture, for that man’s claim to be at least regarded as credible and that the tribunal says some things I do not believe and then lists them but does not mention the torture or the bribes, is just simply not responding or addressing his claim.  It is not a question of considering irrelevant circumstances here or irrelevant

circumstances there.  The very basis of his claim is not addressed or responded to.  That is the special leave point, that these bodies have to be given that rigour.  I see I am nearly out of time; I think I have got a couple of minutes left.

In essence, your Honours, that is the case, that we cannot have these bodies just running these cases through:  look, we have basically put all the evidence in a mixmaster and we have come out with it.  The tribunal has – I am sorry, it is not a tribunal.  It should have the same standards as a tribunal in this reasoning process, whether they call witnesses in a particular environment or another environment.  But in the reasoning and decision‑making process the special leave point is that these informal decision makers ought to have the same rigorous natural justice obligations of a tribunal and that is to address or respond to, as this Court has said, the basic claim of this particular applicant.  Those are my submissions.

HEYDON J:   Thank you, Mr Boccabella.  We will not trouble you, Mr Godwin, today.

The question which the applicant seeks to raise as a question of law is one of fact.  The question was considered in the Federal Magistrates Court and again in the Federal Court of Australia.  It is not in the interests of the administration of justice that it be considered again in this Court.  Do you seek costs?

MR GODWIN:   We do, your Honour.

HEYDON J:   The application will be dismissed with costs.

MR GODWIN:   May it please the Court.

AT 2.19 PM THE MATTER WAS CONCLUDED