VGAJ v MIMIA

[2005] HCATrans 564

[2005] HCATrans 564

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P56 of 2003

B e t w e e n -

VGAJ

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 AUGUST 2005, AT 10.49 AM

Copyright in the High Court of Australia

MR M.D. HOWARD:   May it please the Court, I appear for the applicant. (instructed by the applicant)

MS L.B. PRICE:   May it please the Court, I appear for the respondent. (instructed by Australian Government Solicitor)

MR HOWARD:   Your Honours, a supplementary summary of argument was filed.

GUMMOW J:   Yes, we have that.

MR HOWARD:   Thank you, your Honours.  As noted it is to the supplementary summary that oral submissions will be addressed.  In this case, your Honours, the Tribunal made a number of findings about election violence in Sri Lanka.  The Tribunal also made a number of findings about the applicant’s close relationship with the UNP Party and the Tribunal found that the applicant’s home had been attacked in a politically motivated attack in an election.  There was evidence that appeared to be accepted about other politically motivated violence as well, but after each of those findings the Tribunal then looked at the position of state protection.

HAYNE J:   Now, the Tribunal also made the finding, which appears at application book 30, lines 16 to 22, a finding upon which some weight was placed in the courts below that:

However, the Tribunal cannot find information which suggests that vendettas –

et cetera, that sentence, and line 23, after referring to her connections with the present government:

The Tribunal is satisfied that this means she is adequately protected.

Now, some weight was attached to those.  What answer would you seek to make to that aspect of the matter?

MR HOWARD:   Your Honour, what the Tribunal does in coming to that is it finds – there are two really key findings.  There is the one that your Honour Justice Hayne has identified, but if I can go back one step.  At application book 28 at about lines 25, this is the first important key finding.  I do not suppose there are unimportant key findings, but this is the first key finding.  At about line 25:

The Tribunal accepts . . . that she feared that election violence would result in serious harm or even death –

and it holds that that fear could not be described as baseless because of other findings of fact.  Then the Tribunal looks at the question ‑ ‑ ‑

GUMMOW J:   That is sometime in the past, is it not?

MR HOWARD:   Well, it is, your Honour, but what must be remembered is the Tribunal makes this decision in July 2002.  The most recent election it considers is in December of 2001 and it is one of the bloodiest, the Tribunal finds, elections that has been held and also, the election commissioner of Sri Lanka in December of 2001 finds that election violence is still out of control.  So in July 2002, when the Tribunal is making its decision, there is a history which it finds and accepts of election violence in Sri Lanka, and we have set that out in the written submissions.  Now, the passage that your Honour Justice Hayne took me to ‑ ‑ ‑

GUMMOW J:   Justice French was well aware of this and dealt with it at paragraph 34 on page 72, in particular, line 25 and following.

MR HOWARD:   We say, your Honour, that ‑ ‑ ‑

GUMMOW J:   Where is the jurisdictional error?

MR HOWARD:   The error is this.  The Tribunal considered the question of was the applicant in harm’s way generally, but there were findings and there was evidence and claims before the Tribunal to the effect that during election campaigns the applicant held a particular fear of persecution and in those circumstances we say the jurisdictional error is that the Tribunal ought to have considered whether the applicant held a well‑founded fear of persecution during election periods.  By not considering that question, the Tribunal asked itself the wrong question, in a nutshell. 

So the passage that Justice Hayne took me to earlier does not answer that question because what it is looking at is the fact that the applicant is well connected with the UNP might give her some protection in the ordinary course, but there is no finding and no consideration as to whether that gives her any protection during election periods.  The Tribunal does not consider it and the courts below do not consider it, even though that claim was made and that evidence was before the Tribunal.  So that his Honour Justice French affirms, in effect, the Tribunal’s general finding, but does not ‑ ‑ ‑

GUMMOW J:   Where is the jurisdictional error?

MR HOWARD:   Because, in our submission, the Tribunal was obliged in considering the applicant’s claims to consider the question of whether the applicant held a well-founded fear of persecution during election periods and it then had to consider, in our submission, whether the change in government made any difference to violence that the applicant feared in election campaigns, and those questions were not addressed by the Tribunal.  We say, in effect, it asked ‑ ‑ ‑

GUMMOW J:   What is the answer to Justice French’s point that there was no matter of jurisdictional fact which pre-conditioned the exercise of the power which can be impugned - line 30 on page 72?

MR HOWARD:   Yes, we take issue with that, your Honour, because we say that – and we have set them out in the written submissions.  The evidence that was before the Tribunal – and we do so at paragraphs 12 and 14 and 15 in particular – that there was evidence and there were claims before the Tribunal which the Tribunal did not address.  Your Honours will have seen in the written submissions we draw an analogy with the Dranichnikov Case where we say that the Tribunal did not ask itself the right question and that is the source of the jurisdictional error, in our submission.

So that the passage that your Honour Justice Hayne took me to and the passage that I think both of your Honours have taken me to in the judgment of Justice French leaves that point alone.  The Tribunal never asked itself, in our submission, the correct question based on the claims and the evidence that it had in front of it.  Your Honour, I think it follows from the submissions that the evidence was accepted by the Tribunal.  The applicant’s evidence in these matters was accepted and also there were any number of objective pieces of evidence accepted to that effect as well.  Your Honours, I have really addressed the issue in a nutshell.  I do not know if I can assist the Court further.

GUMMOW J:   Thank you, Mr Howard.

The Court has been assisted by the provision of written and oral submissions on behalf of the applicant but having read and heard what has been put, we are nevertheless of the view that there are insufficient prospects of success in this matter to warrant a grant of special leave.  Accordingly, special leave is refused with costs.

We will adjourn to take a reconstitution.

AT 10.58 AM THE MATTER WAS CONCLUDED