VUAX v MIMIA

[2005] HCATrans 155

[2005] HCATrans 155

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M133 of 2004

B e t w e e n -

VUAX

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 MARCH 2005, AT 11.44 AM

Copyright in the High Court of Australia

MR J.R. HAMILTON:   May it please the Court, I appear for the applicant.  (instructed by Koenig and Simons)

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

KIRBY J:   Yes, Mr Hamilton.

MR HAMILTON:   Your Honour, the respondent states at page 88:

the points the applicant seeks to agitate as special leave questions were not the subject of argument or consideration –

of the courts below.  Do your Honours wish me to – there is contrary evidence of that.  Certainly, the issues were considered in the Federal Court but the Full Federal Court, not so clear.  I will take you to where it is in the application book if your Honours require it.

KIRBY J:   It seems to be a case where at every level there has been a different case argued; a matter the subject of complaint in the written submissions of the Minister.

MR HAMILTON:   Your Honour, if I could take you to where it appeared at first instance in the Federal Court, page 47, about line 15, and it says:

Counsel for the applicant made no separate challenge to the Tribunal’s failure to accept the authenticity of the subpoenas and arrest and investigation notices relied on by the applicant before the Tribunal.  It was open to the Tribunal to reject their authenticity for the reasons it gave.

So it does seem, even if it was not particularly agitated, the court still directed its mind to that and found that there was no error.

KIRBY J:   Yes, but it is fair to say, is it not, that this is a new way of putting the applicant’s case that really was not agitated in either the Tribunal or the courts below?

MR HAMILTON:   Your Honour, the matter of emphasis may well be there but the applicant would submit the two issues involved were certainly before the Federal Court and possibly before the Full Court.

KIRBY J:   Anyway, the matter is important for the applicant and his family and you recognise that to get into this Court you have to show something special, and these are the two points you want to argue?

MR HAMILTON:   Yes, your Honour. 

KIRBY J:   Just assume you could overcome the procedural problem, what do you say on those points?

MR HAMILTON:   As to the first point of rejecting the subpoenas and evidence and court documentation, arrest documentation, generally the courts have found that it is up to the appellants to make their own case and there is nothing that - the Tribunal does not need to take it further.  However, the Minister’s delegate and the Tribunal both had before them documentation that they did not find to be fraudulent.  There was no finding on that.  There was an observation that it can be forged as it is difficult to check, but both the delegate and the Tribunal were aware that the staff in the Minister’s department were in the process of seeking verification of this.

KIRBY J:   Yes, but why would that not be an error within jurisdiction?  I mean, we cannot be sitting here supervising every procedural and decisional step taken by every tribunal and court in the country.  There has to be a limit and particularly in applications for judicial review that have such a limited scope for the intervention of the courts. 

MR HAMILTON:   Yes, your Honour, and if it were just a matter of not seeking some corroborative evidence, even if that evidence had been received, it may not have been accepted in view of the main finding going to credibility.

KIRBY J:   Sounds like an error within jurisdiction to me.

MR HAMILTON:   Your Honour, what the applicant submits is that failure to consider whether there were subpoenas and arrest documentation extant went right to the heart of the applicant’s case.  The applicant – it was always found that his travel, his movements, were not that of a person who had any fear of the authorities.  If this documentation did exist, that would really – it is a very strong point and, as said in Plaintiff S157, fundamental rights, fairness, given that it was being considered - even if an explanation had been given for not considering it in that the Tribunal must have its decisions quick, economical, et cetera, if there has been a finding that they could not get the information within a reasonable time, nothing has been found on that.  Just for some reason or another, even though they knew it had been sought, they decided to make a decision without awaiting the finding.

KIRBY J:   I think we understand that first point.  What is the second point?

MR HAMILTON:   Your Honour, the second point ‑ ‑ ‑

KIRBY J:   The second point is the use they made of the counsellors. 

MR HAMILTON:   Yes, your Honour, The Victorian Foundation for the Survivors of Torture ‑ ‑ ‑

KIRBY J:   I think both of you know that I have been a patron of that body and I gather no one has any objection to my sitting in the matter.

MR MOSLEY:   No, your Honour.

MR HAMILTON:   We were advised of that recently, your Honour.  There was no objection from this side.

KIRBY J:   And in any case, the Tribunal accepted the counsellor’s opinion; it simply said that that cannot be conclusive of what is the source of the fear.  That is just self-evident, is it not?

MR HAMILTON:   Well, your Honour, the applicant would say not necessarily.  These people have assessed these people having experienced something traumatic. 

KIRBY J:   That is true but they do not have a magic crystal ball that can diagnose the actual cause of the trauma or the feeling of dislocation.  I imagine there must be millions of people in the Middle East who feel traumatised.

MR HAMILTON:   Your Honour, the foundation itself - the counsellors may have a different opinion to that.  They may well say in assessing someone, “It’s implicit in our findings that we are professional people and we assess this person to be telling us the truth”.

KIRBY J:   Yes, but inevitably, Mr Hamilton, they have to rely for that on the statements that are made to them by the applicant.  They have to rely as to aetiology on that.  They cannot be conclusive.  They would have expertise in judging the existence and level of trauma.  I would accept that and if that had been disbelieved, there might be a different problem in the case but they cannot be conclusive on what has caused the trauma in a particular case.  They have to depend on what the person says and that is the matter that is for assessment by the Tribunal.

MR HAMILTON:   Your Honour, had it been put to the counsellor that they wanted them to see whether they could professionally make an attestation as to their belief or otherwise, they may have made that.  Even if they attested to the fact that in their professional opinion they were telling the truth ‑ ‑ ‑

KIRBY J:   How could they ever be conclusive or determinative of that?  That is a matter for assessment by the decision-maker.  I mean, this is rudimentary stuff.  Every day doctors go into courts and they say, “I’ve examined the person and they have this or that disability”, but as to aetiology they have to rely on what they are told, and it is the same with trauma counselling.  They have to rely on what they are told and therefore there is a question of the factual foundation, which is the matter for assessment by, in this case, the Refugee Review Tribunal.  It is really rudimentary, is it not?

MR HAMILTON:   Your Honour, I am not aware that the – that would basically mean that any assessment done by such a body is useless in a court.

KIRBY J:   Not at all because, combined with acceptance of the applicant, it can sustain the argument of fear overcoming therefore the subjective question and in particular cases, given perhaps a borderline case, it can be enough to convince on the cause of the fear.  But in this case, unfortunately for your client, that was not accepted by the Tribunal.

MR HAMILTON:   Your Honour, the other point there was the 424A point that if that was the case, they should have been put on notice but I take it from what you are saying that even if they were put on notice, regardless of what the counsellor – well, the counsellor is not in a position to assess the veracity of what they are saying.

KIRBY J:   I may be wrong on this, please argue if my impression is wrong on this, but it just seems to me this is something that is quite fundamental to the role of an expert.  The expert can give you the statement within the realm of expertise, which in this case is the existence of trauma.  The expert cannot conclusively answer the issue of aetiology. 

MR HAMILTON:   Well, your Honour, let me put it another way for the applicant.  If it is found that the person has been tortured and suffers real fear, given the fundamental rights at stake, should that not go along with his explanation for it in the absence of any finding otherwise?

KIRBY J:   You are now in the realm of facts, which is not the proper province of judicial review.  You are in the realm of arguing the merits of the matter.  If you had argued that before me in the circumstances of this case it might well have succeeded, but it did not before the Tribunal.

MR HAMILTON:   Your Honour, I will not take that point any further.

KIRBY J:   As in the Federal Court, this Court is grateful to you, Mr Hamilton.

MR HAMILTON:   Thank you, your Honour.

KIRBY J:   Thank you, Mr Hamilton.  The Court does not need your assistance, Mr Mosley.

The applicant is a national of Jordan, of Palestinian ethnicity.  He arrived in Australia with his wife and three children in August 2000.  He promptly sought a protection visa under the Migration Act 1958 (Cth) and the Regulations, claiming to be a refugee under the Refugees Convention.

He failed in this endeavour before the Minister’s delegate, the Refugee Review Tribunal, a single judge of the Federal Court (Justice Kenny) and the Full Court of that court (Justices Kiefel, Weinberg and Stone).  We see no error on the part of the Federal Court that would warrant the grant of special leave.

Various points have been argued that are said to justify such a grant.  Recognising the limited ambit of judicial review available in such cases, counsel for the applicant submitted that there were two issues of general principle that warranted consideration of the case by this Court.  These raise fresh issues that were not really the basis of the challenges in the Federal Court.  However, because of the importance to the applicant and his family, we will mention them.

First, it was said that the Tribunal had declined to exercise its powers of inquiry by failing to secure an expert report of a document examiner on the authenticity of an arrest summons and subpoena document said to evidence a persecution in Jordan.  If this was error, it was error in the conduct of the proceedings in the exercise of jurisdiction.  It is not error that involved the Tribunal’s abandoning or stepping outside its jurisdiction.

Secondly, it was said that the Tribunal had failed to observe the rules of procedural fairness by not putting to the applicant its reservations about a counsellor’s report as proof of the causation of the applicant’s subjective fear about return to his country of nationality.  The Tribunal accepted the counsellor’s assessment about the evidence of trauma and fear.  It did not have to give prior notice that such assessment might not have accurately identified the source of the applicant’s fear.  This was obvious.  It was a matter reserved to the judgment of the Tribunal.  It was not a matter that could be conclusively determined by the counsellor.

The application must therefore be dismissed with costs.  As in the Federal Court, the Court expresses its appreciation to Mr Hamilton for his assistance.

AT 11.56 AM THE MATTER WAS CONCLUDED