VAAW v MIMIA

[2004] HCATrans 214

[2004] HCATrans 214

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M265 of 2003

B e t w e e n -

VAAW OF 2001

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Office of the Registry         
  Melbourne  No M266 of 2003

In the matter of -

An application for Writs of Certiorari and Mandamus against MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte –

APPLICANT M266/2003

Applicant/Prosecutor

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 JUNE 2004, AT 2.19 PM

Copyright in the High Court of Australia

__________________

MR A.D. O’DONOGHUE:   If your Honours please, I appear on behalf of the applicant in both matters.  (instructed by Bourke and Wells)

MR C.J. HORAN:   If the Court pleases, I appear for the respondent in both matters.  (instructed by Australian Government Solicitor)

HAYNE J:   Yes, Mr O’Donoghue.  We should, I take it, deal with both matters together, is that right?

MR O’DONOGHUE:   Yes, your Honour, subject to any contrary view of the Court.  If I may commence, we are dealing with the application for constitutional writs.  The two bases of the application for the writs are (1) a breach of natural justice; and (2) what I will describe as illogical reasoning.

Your Honours, the critical issue that gives rise to the natural justice issue is the Tribunal’s failure to draw to the applicant’s attention its view of the letter dated 2 September 2000 on its face signed by members of the Falun Gong at Jiatong Park in Shanghai.  Unfortunately, your Honours, that letter was not able to be ascertained, so has not been reproduced, but the critical aspects of it are contained in the transcript and the reasoning of the Tribunal.  The failure was that its view of that letter would or might be critical to the assessment of the genuineness of the claim of the applicant to be a Falun Gong practitioner.

Your Honours, briefly drawing the Court’s attention to the discussion of the letter, which is at pages 163 to 164 of the application for special leave book, without taking the Court to every aspect, critically what that transcript shows is that certainly the concern – sorry, does the Court have that?

HAYNE J:   Which page?

MR O’DONOGHUE:   Pages 163 and 164 of the special leave application book.

HAYNE J:   No, that is not ‑ ‑ ‑

MR O’DONOGHUE:   I am sorry, your Honour, pages 26 and 27.  I was reading the bottom.  My apologies.  Briefly, those pages show that the concern of the Tribunal as to the genuineness of the letter was brought to the applicant’s attention, and the fact that the Tribunal saw the issue of whether the Falun Gong had an office in Shanghai after the applicant left China was a matter of some significance.  That was also expressly brought to the applicant’s attention but what was not brought to the applicant’s attention was that if the Tribunal were to find, as it did, that the letter was not genuine, that it would find as a result, notwithstanding the other evidence before it, that the applicant had not been a practitioner of Falun Gong at any time prior to being detained.

HAYNE J:   At the top of page 26 the Tribunal points out one part of the letter that concerned her as casting “some doubt on the identity of the authors”.

MR O’DONOGHUE:   Yes, certainly, your Honour.

HAYNE J:   The fact that they claimed to be Falun Gong practitioners seemed to be a matter of some concern to her.  What more should she have done than she did?

MR O’DONOGHUE:   It is linked in, of course, to the way she used the letter, your Honour.  If she had simply found against the applicant on that letter – but that was simply one issue that it found against the applicant.  Her finding on the letter was the critical determination which ultimately led to the finding that the applicant was not a practitioner of Falun Gong at any time before he left China and what inevitably then led to the finding that he was not a genuine practitioner of Falun Gong at any time which inevitably led to the finding that he was at no risk of persecution as a result of being a Falun Gong practitioner and thus his application was bound to fail.

It was that use of the letter which dictated, in the applicant’s submission, that she considered the issues pertaining to the letter as so important that the Tribunal would or might come to that conclusion, should have been drawn to the applicant’s attention, given that there was other independent evidence, apart from the letter, that he was involved in Falun Gong.  It was accepted by the Tribunal that he knew a lot about Falun Gong and there was evidence from him that he had practised Falun Gong in Australia before he was detained.  So that latter evidence clearly must have been ignored in a finding that because the letter was not genuine that the applicant had not been a genuine practitioner of Falun Gong at any time before he was detained, remembering, as the facts reveal, this applicant was in Australia for a number of years before he was detained – approximately four years.

HAYNE J:   The difficulty I have with this branch of the argument, Mr O’Donoghue, I raise so that you may deal with it.  It seems to be an argument that depends upon the Tribunal having an advanced view in the course of hearing about the way in which he, or in this case she, may decide the case, that is, that the Tribunal should have a well‑advanced set of reasons at hand even when hearing the basic evidence.  That is a rather large proposition.

MR O’DONOGHUE:   Yes, I understand the point you are making, your Honour, and I accept that that is a difficulty we face, because it was only when one saw the reasons that one was able to conclude this was the ‑ ‑ ‑

HAYNE J:   Because the point put against you, I think, may be captured this way:  it is that this letter was seen as significant at the time of the hearing, attention was drawn to it, in particular, attention to its genuineness and probative quality was drawn to it, and the rhetorical question follows, “Well, what more could the Tribunal do?”  That is the nub of the argument against you.  Is there more that you would wish to advance in answer to it?

MR O’DONOGHUE:   The difficulty in answering it, your Honour, is that inevitably in answering it, you – the answer to it is that there was a loss of a practical opportunity within the meaning of Lam in that if the applicant had have known that his whole case could stand or fail on the interpretation of this letter, there was something practically he could have done, and that is call evidence from the authors, or attempted to call evidence from the authors of the letter, and that opportunity was lost.  Unfortunately, it is an opportunity that one does not know he lost until one reads the reasons.  I cannot take that specific point further, your Honour.

HAYNE J:   Does that bring us to the second point of the application?

MR O’DONOGHUE:   Yes, your Honour.  I will simply indicate that this fact was critical for the reasons set out in the Full Court’s decision.  I will not bother the Court to go to them.  Turning then to the second point, your Honour, here is a case where a determination of a matter which is required to be determined for the Tribunal to reach a position under section 65 of the Act where it is either required to grant a visa or required to refuse a visa.

Your Honour, the conclusion was not based on logical grounds within the meaning of S20, S106 of 2002 and the judgment of his Honour Justice Gummow in Eshetu was that the finding that any time before he was detained the applicant was not a practitioner of Falun Gong, because that finding was critical to the ultimate determination that he was not at risk of persecution and thus was not a refugee within the meaning of the Convention and thus was not entitled to a visa.  It was critical because her reasons, essentially, led ‑ ‑ ‑

HAYNE J:   I think we understand that this is the central point on which the case has been decided at all points, but do you say – I understood you to say – that, in effect, there was no evidence on which the Tribunal could reach the conclusion it did in this respect.  Is that right?

MR O’DONOGHUE:   Your Honour, there was no basis for the conclusion being reached in the way it was.  This is a situation akin to the analysis provided by his Honour Justice Deane in Bond at page 368, which is at tab 4 in our list of authorities.  There may well have been basis for the Tribunal to reach the conclusion it did, having regard to the other material before it, but there was no basis for it reaching the conclusion it did in the way that it did, namely, that the applicant was not a practitioner of Falun Gong at any time before he left China, on the basis that the letter purportedly from the practitioners of Falun Gong in China was not genuine because it referred to Falun Gong having an office and it was the view of the Tribunal that Falun Gong did not have an office.

The fact that there was other material, or may have been other material, before the Tribunal, that if used in the proper manner would have led it to reaching the same conclusion is beside the point, in our respectful submission.  What is critical is what it did, and there was no logical basis to support what it did.  So that is the way I put that aspect of the case, your Honour.

HAYNE J:   Does that deal with both of the points that you raise?

MR O’DONOGHUE:   That deals with both of the points on the constitutional writ application.  Your Honour, clearly it is common ground that the applicant needs an extension of time in support of the application for constitutional writs.  Briefly stated, your Honour, we say that there are merits in the case for the reasons I have given.  There is clearly an explanation for the delay, namely, that the applicant challenged the decision within time and proceeded right through all stages of the Federal Court.

HAYNE J:   Perhaps we might leave over any question of time until we see whether that is a point that has to be determined.  You have addressed the merits of the claim.

MR O’DONOGHUE:   Yes, thank you for that indication, your Honour.  If I may then turn to the special leave application, your Honour, the critical question here is what is the effect of the joint judgment of their Honours in Rajamanikkam, Justices McHugh Gaudron, and supported on this aspect by Justice Kirby, that the former section 476(4) of the Migration Act contained the precise content of the section 476(1)(g) no evidence ground in that Act.

We say, your Honour, that that must mean that 476(1)(g) is not to be interpreted as it was traditionally interpreted in the Federal Court and, indeed, the precisely equivalent section in the Administrative Decisions (Judicial Review) Act ‑ ‑ ‑

HAYNE J:   However we deal with what the content of a no evidence ground is, do you not have to surmount the hurdle showing that this is a no evidence case?

MR O’DONOGHUE:   Yes, certainly, your Honour.

HAYNE J:   In particular, is not a hurdle in your way the proposition advanced against you that there was evidence before the Tribunal which would warrant its conclusion.  Demonstrating now by an enlarged evidentiary base that that point may be right, wrong or indifferent is not to the point.  Was there evidence? 

MR O’DONOGHUE:   Your Honour, this is the crux of the matter.  What the applicant says, your Honour, that where you satisfy the first limb of section 476(4)(b), namely, the decision was based on a particular fact, and assuming for this purpose that the Full Court was correct in that aspect, the only other matter that an applicant has to satisfy is that the particular fact did not exist.  That is what I say is the effect ‑ ‑ ‑

HAYNE J:   Did not exist in the sense of can now by later added evidence be shown to be false or did not exist in the sense of there was no logically probative material before the Tribunal that ‑ ‑ ‑

MR O’DONOGHUE:   I say, your Honour, that is the change brought about by the majority that it is now, whereas previously it was only open to an applicant to lead more material on review if the applicant first showed that there was no probative material before the Tribunal.  I say what the position is now is that if the applicant is able to lead the material which would be the same as would have been led in the past, namely, admissible evidence going to the issue of whether a particular fact existed, the applicant is entitled to do that notwithstanding that it may be that there was some probative contrary material before the Tribunal.

HAYNE J:   That sounds awfully like appeal by way of rehearing on a question of fact.

MR O’DONOGHUE:   I understand that, your Honour, but I say that it is not.  It is simply addressing the second limb of section 476(4)(b) in the same way in terms of what the evidence would be that it was always open to be addressed – well, since the Curragh Mining Case interpreting the equivalent provision of the AD(JR) and, indeed, it is what Justice North was prepared to do should the applicant have satisfied all the other limbs of section 476.  I say that that is, in fact, the difference brought about as a result of a majority in Rajamanikkam.  So, yes, I acknowledge, your Honour, and it is said against me by the respondent and said against me by the Full Court that that change is not shown to be brought about by what I say is in the majority in Rajamanikkam.

If that is not so, your Honour, the issue of the precise content finding of the three judges does not seem to me to be any different to the approach of his Honour the Chief Justice and Justice Callinan, that section 476(4), in fact, qualifies section 476(1)(g), because under that analysis, the issue of sufficiency of evidence is clearly a matter that has to be addressed.

Your Honour, my second point is simply that if the Court is against me in that regard, the issue of the quality of evidence is raised, in that the evidence relied on says nothing about the position in China after the applicant left.  The most that it goes to is the applicant said there was no office when he left China.

HAYNE J:   I see that the time has gone, Mr O’Donoghue.  Thank you.

MR O’DONOGHUE:   Your Honour, I do not wish to make any further submissions in any event.  Thank you.

HAYNE J:   Mr Horan, what do you say about the Rajamanikkam point?

MR HORAN:   In short, your Honour, whatever differences there may be between the different judgments in Rajamanikkam, none of the judgments stand for the proposition sought to be raised or advocated for by the applicant which is that the ground does not require an applicant to demonstrate that there was no evidence.  There is a further problem in that the way in which these proceedings were conducted at first instance has meant that there has never been any determination that the applicant can actually satisfy that ground.

HAYNE J:   Thank you, Mr Horan.  We will not trouble you further.  Is there anything you want to add, Mr O’Donoghue, in respect of that point?

MR O’DONOGHUE:   No, your Honour, except to say in respect of the last point made by my learned friend, that is correct.  His Honour Justice North was prepared to address that aspect if ‑ the applicant was not in the position to call any further evidence at the time at first instance and Justice North was prepared to allow him that opportunity if he otherwise satisfied the…..

HAYNE J:   Yes.  Thank you, Mr O’Donoghue.

The applicant seeks special leave to appeal against the dismissal of his appeal to the Full Court of the Federal Court of Australia in relation to an application he made for review of the refusal by the Refugee Review Tribunal to grant him a protection visa.  He also applies for constitutional writs and associated relief in respect of the Tribunal’s decision.  For that latter application he would need an extension of time. 

He seeks to make two points:  first, that a finding of fact which the Tribunal made was not open to it; and, secondly, that he was denied procedural fairness because he was not told by the Tribunal that it considered that particular question of fact to be important.  Neither of those points would enjoy sufficient prospects of success to warrant a grant of special leave or the constitutional and other relief he would seek.

There was evidence before the Tribunal that would permit it to reach the conclusions which it did.  Now to enlarge the evidence touching that question, and seek to say that the further evidence demonstrates that the question should be decided differently, does not deny the evidence before the Tribunal permitted it to reach the conclusion which it did.  In doing so, the Tribunal did not contravene the requirement to accord procedural fairness to the applicant.  It follows that both applications are dismissed with costs.

AT 2.43 PM THE MATTER WAS CONCLUDED