VSAF of 2003 & Ors v MIMIA & Anor

[2005] HCATrans 757

[2005] HCATrans 757

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M61 of 2005

B e t w e e n -

VSAF OF 2003, VSAG OF 2003 AND VSAH OF 2003

Applicants

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 SEPTEMBER 2005, AT 12.10 PM

Copyright in the High Court of Australia

MR R.M. NIALL:   May it please the Court, I appear for the applicants with my learned friend, MS L.G. DE FERRARI.  (instructed by Corrs Chambers Westgarth)

MR S.P. DONAGHUE:   May it please the Court, I appear for the first respondent.  (instructed by Australian Government Solicitor)

KIRBY J:   Yes, Mr Niall.

MR NIALL:   If the Court pleases.  This application raises two issues of construction of the Migration Act.  The first concerns section 65 of the Act and whether it permits the Tribunal to abstain from making any findings of fact on the claims that are advanced.  We submit that it does not and that the Full Court erred in holding that it does.  The second concerns the interaction between sections 425 and ‑ ‑ ‑

KIRBY J:   But the Tribunal did go on and decide the matter.  It just had to do so without the benefit of your client, or one of your clients, appearing before it.

MR NIALL:   In our submission, the Tribunal’s ultimate conclusion was not premised upon the factual finding which it was incumbent upon it to make.  That was the point Justice Gray ‑ ‑ ‑

KIRBY J:   But that would give an applicant for a protection visa a complete veto over the conduct by the Tribunal of its business.  That cannot be the law.

MR NIALL:   No, it cannot, your Honour, and that is not the submission.  The significance of the non‑attendance by the applicant before the Tribunal was that the evidentiary record was thereby lessened.  The applicant ‑ ‑ ‑

KIRBY J:   Yes, but why did your client not send in the evidence so that this was not a furphy, that it was not just wasting the Tribunal’s time and that there was indeed a funeral?

MR NIALL:   There was no explanation given to the ‑ ‑ ‑

KIRBY J:   No, indeed.  This Tribunal is very busy.  It is going through lots of these cases and it has to have a timetable.  They have set the timetable.  Your client was given notice and told they would be welcome to come along.  Then at the last minute they say they cannot and they do not give proof as to the reason why.

MR NIALL:   But the proposition for which we contend is that the Tribunal was left with a factual record upon which it was required to make findings of fact.  Now, those ‑ ‑ ‑

KIRBY J:   Exactly.  That is the default of your client turning up.

MR NIALL:   But it did not, in my respectful submission, alter the nature of the duty of the Tribunal and the point the primary judge made was that the ‑ ‑ ‑

CALLINAN J:   What precisely was the duty?

MR NIALL:   The duty that section 65 created was the duty to consider the claims and make findings of fact on those claims so that the Tribunal could reach a state of satisfaction, or non‑satisfaction, as to whether or not the applicant was a refugee.

KIRBY J:   Well, I repeat, that is what they did, but they did not have the benefit of your client’s evidence because your client did not turn up when invited to do so.

MR NIALL:   That is not what the Tribunal did, in our submission.  What the Tribunal did was that there are claims that had been made of torture and past harm and the Tribunal says, “Well, I don’t know what happened, therefore, I am not satisfied you are a refugee”.

KIRBY J:   Well, if you do not give the Tribunal the material, you cannot really explain it.  They proceed – I mean, every court in this land, let alone tribunals, reaches the end of the line.  It has to make the decision and if parties do not turn up and present their case, well, they just have to do it as best they can without that evidence.

MR NIALL:   But the proposition inherent in that respect is that the applicant bore an onus.  He made a claim that was advanced and the Tribunal said, “I don’t know what the facts are”, and his Honour the learned primary judge concluded that that did not provide the factual basis of which it could come to its ultimate conclusion.  Now, the error which we contend exists in the judgment of the Full Court can be seen in paragraph 16 on page 49, line 44, where their Honours say:

In our view, in a case such as the present, the Act imposes no obligation on the Tribunal to make positive findings either accepting or rejecting claims.

Over on the next page, page 50, paragraph 17, in the middle of that paragraph, line 28, their Honours observe that:

There are many cases showing that findings of fact are not necessarily required to support a state of non‑satisfaction.

Now, in our submission, those two statements of principle are in error.  The ultimate question is whether the Tribunal is satisfied or not satisfied that the applicant is a refugee.  The applicant could have no cause for complaint having not turned up if the findings of fact which he had advanced were rejected.  But he does have a cause of complaint, in our submission, if the findings of fact are not resolved.

The Tribunal does not reject the claims, nor does it accept them.  It falls back into a position of saying “I am not satisfied”.  Now, our submission is that the state of satisfaction and the state of non‑satisfaction must be built upon findings of fact made on probative material.  It would have been open to the Tribunal to reject the findings of fact, to reject the claim, but it had to engage with those claims.

As to your Honour Justice Callinan’s question of where the obligation arises from and what is it, it arises from section 65.  Section 65 requires – we have put that in our material - requires the Tribunal to answer the claims that have been made regardless of the state of the evidentiary record.

CALLINAN J:   Well, where do I find the text of section 65 in your papers?

MR NIALL:   We have handed it up in some additional materials, your Honour, but I am not sure if your Honour has those.  It can be found in page 26 in the extract of Justice Gray’s judgment, in the application book.  Now, the section there provides ‑ ‑ ‑

CALLINAN J:   What page of the ‑ ‑ ‑

MR NIALL:   Page 26 of the application book, your Honour.

CALLINAN J:   Thank you.

MR NIALL:   It reads that:

After considering a valid application for a visa, the Minister –

is either satisfied that the criteria is met, that is, he is satisfied that the applicant is a refugee, or is not so satisfied that the applicant is a refugee.  Now, the state of satisfaction, as this Court has established, the obligation in section 65 to grant or to refuse to grant the visa depends on the state of satisfaction.

CALLINAN J:   Well, did the Tribunal not say it could not be satisfied on the evidence? 

MR NIALL:   But having done so without determining the facts. 

CALLINAN J:   But it might not be able to determine the facts.  It might be left in the position of just not being satisfied.

MR NIALL:   Well, in our submission ‑ ‑ ‑

CALLINAN J:   Where does the Act say it must determine the facts, must reach a definite conclusion on factual issues?  Where does it say that?  Does the Act say that?

MR NIALL: In our submission, it does not say that in terms, but it is implicit in section 65(1)(a)(ii).

CALLINAN J:   Courts are often left in a state of mind that they are not satisfied.

MR NIALL:   That may be so, your Honour, and ultimately the court has to decide the facts that are necessary to underpin the judgment.

CALLINAN J:   But sometimes it just cannot and then a party loses.

MR NIALL:   Precisely, your Honour.  In the context of a curial litigation, the party loses it because it has not discharged its onus.  The applicant bore no onus in this proceeding.  It simply – his obligation, or his right was to make a claim for protection.  The obligation of ‑ ‑ ‑

CALLINAN J:   I do not suggest he bore an onus, I am not suggesting that, but he had an opportunity.  He had an opportunity which he did not take.  The opportunity was to have full oral hearing if he could satisfy the Tribunal that he had a proper basis for non‑attendance on the day which had been appointed some months before, and he made no effort to satisfy the Tribunal of that either.

MR NIALL:   The consequence of that is the issue that is raised in the proceeding – and we say there is no consequence for the duty of the Tribunal.  The consequence is solely for the record.  There was no difficulty, in our submission, with the Tribunal discharging the duty by making findings of fact on the claims of torture.  There was no difficulty.

CALLINAN J:   See, I do not accept, for example, what appears at page 36 in its entirety in the judgment:

In the present case, the Tribunal did not consider the various claims made and make findings in respect of them.

The latter part is true in part, but the Tribunal did consider the claims.  It was left in a state of not being satisfied, but it did consider the claims.

MR NIALL:   But it arrived at no factual conclusions which would support either its state of satisfaction or its non‑satisfaction, and the ‑ ‑ ‑

CALLINAN J:   No, no final factual conclusions, but it found them vague.  The Tribunal found them to be vague.

MR NIALL:   But did not reject them and so it remained extant.

CALLINAN J:   Do you say that the Tribunal has never exercised its statutory jurisdiction unless it makes explicit findings of fact on all claims made by an applicant?  Is that your proposition?

MR NIALL:   No, your Honour, no. 

CALLINAN J:   Well, tell me what is the closest you would come to that?

MR NIALL:   The proposition is that the Tribunal must resolve the questions of fact that are necessary to underpin its state of satisfaction.  It cannot abstain from fact finding and then conclude that it has not affirmatively satisfied the person is a refugee.  It must engage with the claims and that engagement must lead to a resolution of them.  Now, that is a different proposition to saying that the Tribunal must find every single fact or every single claim, but it must have sufficient factual underpinning for the state of satisfaction or the state of non‑satisfaction.

CALLINAN J:   But the section expressly contemplates that the Tribunal may not be satisfied.

MR NIALL:   Precisely, your Honour.

CALLINAN J:   And you want to elevate that provision into a provision to the effect that if the Tribunal rejects the claims made then it must not grant a visa.  You want to elevate it.  That is a different thing from what the section says.

MR NIALL:   No, your Honour, we do not seek to elevate it, nor do we seek to ‑ ‑ ‑

CALLINAN J:   Well, I do not see how, if your proposition is right, you can avoid that.

MR NIALL:   The contrary proposition which the Full Court embraced is one which entitles the Tribunal to abstain from fact finding altogether if it believes that such a process is too hard or too difficult or the evidence is vague.  Now, that proposition will obtain in any number of cases, whether or not the applicant attends.  There may be very many reasons why the evidentiary record is vague and uncertain and that is why the Convention does not require a statement of an applicant to prove the claims.  That is why on a proper application to the well-founded fear the decision‑maker has to take into account the chance that they are wrong.  But one does not get to that without some factual foundation for the ultimate proposition.

KIRBY J:   Is there another section that says that the Tribunal has to approach the matter in the way section 65 suggests?  Section 65 is addressed to the delegate of the Minister?

MR NIALL:   Yes, your Honour, and the link is section 414 which provides that the Tribunal must review and push back the Tribunal to the ultimate issue resting in section 65.

KIRBY J:   Yes.

MR NIALL:   In our submission, this Court has not looked at what is necessary as a factual matter to support a state of non‑satisfaction.  It is held that in order to have a state of satisfaction it is necessary to have findings of fact made on probative material.  But the converse is not – the propositions of which the Full Court reach have been applied in a number of judgments and they are of significance because they go to the fundamental nature of the Tribunal to undertake fact finding and we say this authorises or permits an abstention from what is the fundamental role of the Tribunal to grapple ‑ ‑ ‑

KIRBY J:   But test your proposition by the fact that an applicant keeps saying, “I just need a few more days.  I just want to have more time.  I can’t come along this day.  I’ve got religious observance on that day.  I have to go to take my children to school the next day”, and that way you could hold up the whole wheels of the Commonwealth.

MR NIALL:   With respect, that proposition or that process does no violence to our proposition because the proposition – what your Honour – the concept behind your Honour’s question is the opportunity to give a fair hearing.  Now, the Tribunal is obliged to give a fair hearing and no more and it comes to an end.  But the issue is, when the Tribunal has drawn the line on the evidentiary record and when it has completed its inquiries, what is its task?

KIRBY J:   Yes, but they did allow enough time after the first hearing date for your client to send in the proof, as was requested, of the funeral and they did within that time allow enough time for your client to send in any other material that he wanted to rely on and to give excuses and say why it was important for him to be heard orally, but he just did nothing. 

MR NIALL:   That is the second error, the second error, and I will come to that in one minute.  But before leaving the first point of construction, we say there is nothing in the Act which authorises the Tribunal to proceed on the basis that the failure to attend alters the nature of the duty.  The two points do not interact.  The nature of the duty is not influenced by the question of whether or not the applicant attends.  As the learned primary judge made clear, what ultimately falls out of it is that the non‑attendance by the applicant becomes the reason for refusing the visa.  Now, that, in our submission, is not authorised by the Act because it is the duty of the Tribunal, which is not dictated by the circumstances of the applicant, and by making the claim the Tribunal was required to answer it.

In relation to – and that there can be no different duty whether or not the applicant attends or not.  That cannot affect section 65.  There cannot be a different structure of decision making depending on, firstly, the outcome, whether it is a state of satisfaction or non‑satisfaction, or whether or not the applicant attends.  The second point is the question of whether the Tribunal was entitled to proceed in the absence of the applicant and proceed on the papers, so it is called, and, in our submission, having given the applicant time till after the day of the point of the hearing date, the question of the first hearing date had not been resolved and accordingly 426A was not engaged.

KIRBY J:   Well, the sequence was, 11 June was the assigned hearing date, 10 June was the request for the adjournment because of the funeral, and the decision was then given on 12 June.  So he was told to give his evidence by 12 June and the decision was not made until 19 June.

MR NIALL:   That is so, your Honour.

KIRBY J:   So that there was a period of days within which he could have sent his evidence in, you would have been in a different case, or he could have sent in statements in support of his claim, you would have been in a different case.  He just did nothing.  That cannot be the standard of the Act.  That cannot be what Parliament envisaged.

MR NIALL:   That is the state of the evidentiary record that he did nothing and that is the basis on which the Tribunal proceeded.  The question was, was there a first hearing which he did not attend and, in our submission, had it given him time after that date, 426A was not engaged, otherwise we rely on our written submissions in relation to that second matter.  If the Court pleases.

KIRBY J:   Yes, thank you for your assistance, Mr Niall. 

I should have said at the outset of these proceedings that an application was made to add the Refuge Review Tribunal as a second respondent.  The order for that purpose is made.  The Refuge Review Tribunal has filed in this Court a submitting appearance, submitting to the order of the Court that it may make in the application save as to costs.

The Court does not need your assistance today, Mr Donaghue.

This is an application in a case involving a claim to refugee status by a family of Indian ethnicity from the Fiji Islands.  The first applicant, on behalf of his family, was given an opportunity to attend before the Refugee Review Tribunal for a review of a decision of the delegate of the Minister to give evidence and make submissions to that Tribunal.  The applicant failed to attend.  The day before the hearing was fixed he notified that he had to attend a funeral.  However, he failed to provide evidence, as he was requested to do, of the genuineness of that excuse.  To this day he has not provided that evidence. 

Leaving time for the evidence to be provided, the Tribunal, several days later, proceeded to decide the application on the materials before it. There was no error in the way in which the Tribunal proceeded in the circumstances of this case. In the terms of section 65(1) of the Migration Act 1958 (Cth), as applied to the Tribunal by section 414 of that Act, it had to consider whether it could reach the requisite satisfaction on the materials before it. In this case, the Tribunal decided that it could. It reached and expressed its satisfaction and it reached its consequent conclusion.

We see no error, still less a jurisdictional error, in what the Tribunal did in the circumstances of this case.  There are no prospects that this Court would disturb the orders of the Full Court of the Federal Court of Australia from which this application arises.  The application must therefore be dismissed.  Does the Minister ask for costs?

MR DONAGHUE:   Yes, your Honour.

KIRBY J:   Is there anything you can say?

MR NIALL:   No, your Honour.

KIRBY J:   The application is dismissed with costs.

The Court will now adjourn in order to be reconstituted for the following cases.

AT 12.32 PM THE MATTER WAS CONCLUDED