WALN v MIMIA & Anor

[2007] HCATrans 58

[2007] HCATrans 058

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P30 of 2006

B e t w e e n -

WALN

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 9 FEBRUARY 2007, AT 1.21 PM

Copyright in the High Court of Australia

MS L.B. PRICE:   If the Court pleases, I appear for the applicant.  (instructed by Scales Community Legal Centre)

MR L.A. TSAKNIS:   If the Court pleases, I appear for the first respondent.  (instructed by Australian Government Solicitor)

MS PRICE:   Your Honours, in the Full Federal Court’s decision, they said that they were not persuaded that the Refugee Review Tribunal had infringed the applicant’s right to have his application processed in accordance with any residuum of procedural fairness after the enactment of section 422B of the Migration Act.  Your Honours, it is our submission that the way the Full Federal Court looked at that fails to see the consequences of how the Tribunal put the country information to the applicant and the circumstances in which he was before the Tribunal and the sort of position he was in to enable him to make some sort of proper response.

If I could take your Honours first to the application book at page 15 – I am sorry, I have just recalled that this is a matter where we really need to seek leave to bring this application.  The reasons for the late application appear in the application ‑ ‑ ‑

CALLINAN J:   Before you continue, Mr Tsaknis, do you have any objection to the ‑ ‑ ‑

MR TSAKNIS:   We do not object to the grant of leave, may it please the Court.

CALLINAN J:   You may continue, Ms Price.

MS PRICE:   Thank you, your Honour.  On page 15 of the application book you will see there two pieces of country information extracted.  These were the pieces of country information that the Tribunal relied upon in refusing the applicant refugee status.  I would then like your Honours to turn if you would to page 96 ‑ ‑ ‑

CALLINAN J:   Just give me one moment to scan this.

MS PRICE:   Perhaps before you leave page 15, your Honours might just note the third line of the first extract where it says:

There would be a couple of exceptions:  those who are repetitive demonstrators; active and high profile members of the ABSDF or the NCGUB and those ringleaders of the more violent attack on the embassy in Canberra in September 1999.

Then if your Honours would turn over to page 96 of the application book where the manner in which the Tribunal put that information to the applicant is set out.  If I could take you to the second section that is in italics, your Honours, you will see there that the Tribunal reads out in relation to this country information:

It says:

There would be a couple of exceptions.  One is repetitive demonstrators who are also active and high profile members of the ABSDF or the NCGUB and those ring leaders of the more violent attack on the Embassy in Canberra ‑ ‑ ‑

CALLINAN J:   The word “also” has been inserted, is that the point?

MS PRICE:   That is right.  What the Tribunal has done has misread the document and has inserted a connection between repetitive demonstration and high profile membership of these two organisations.

CALLINAN J:   Where is the response to that, Ms Price?

MS PRICE:   The response to that is at the top of page 97.

CALLINAN J:   You are really rather reading what was put as if it were a pleading, not simply an attempt to make aware of the sorts of considerations that are relevant.

MS PRICE:   What then occurred is that the Tribunal has carried that misreading into its decision.  At page 18 of the application book around about line 10, the Tribunal draws this decisive conclusion about the application:

The Tribunal accepts that the applicant may have attended more than one peaceful demonstration in Australia and held a flag or poster; he may also have attended two to three anti government speeches in 1997 and prior to 1999 in Australia and also some fund raising functions . . . Further the independent country information would indicate that whilst the Burmese authorities monitor opposition activities outside Burma, they only have an interest in repetitive demonstrators that are high profile members of the ABSDF, or NCGUB and the ringleaders of the violent attack on the embassy in Canberra ‑ ‑ ‑

CALLINAN J:   Ms Price, on the findings, he would not fall within either of those exceptions, as they are stated, in the other country information.

MS PRICE:   That is correct, your Honour.

CALLINAN J:   It does not really matter on the findings of fact, regardless whether there has been a misquotation or not, objectively the facts, as found, do not suggest that he would fall within the exceptions, taken together or taken separately.

MS PRICE:   Yes, I accept what your Honour is saying that the exception to the mandatory notice requirements in section 424A may arguably not have applied to this fellow, but the point we also make, your Honours, that even if section 424A did not apply in this case that there has been a denial of procedural fairness in the way this information was put to the applicant, bearing in mind that he has been unrepresented all the way through until he got to the Federal Court.  There were issues about the ‑ ‑ ‑

CALLINAN J:   Ms Price, as I have put to you before, the proceedings do not involve putting information as if it were a pleading and as if each and every possible separate allegation has to be the subject of specific commentary, denial, acceptance.  It is simply not what natural justice itself requires.

MS PRICE:   But natural justice, your Honour, would require that if you are going to present some adverse information to an applicant orally and expect him, without opportunity to consider, without opportunity to take advice, and he is struggling with the English language and relying upon interpretation where the expert evidence was that the interpretation was not the best, that there would be a decent opportunity to comment and consider the adverse information before one then went away and made a decision upon it.

The injustice here, your Honours, is borne out by the fact that the Tribunal has combined two pieces of country information, it has misread them to the applicant, it has misunderstood them itself, and then it has gone and made a decisive decision on the applicant’s rights on the basis of its misreading of adverse material, that it has not given the applicant a proper opportunity to consider.

It is our submission that the information is not caught by the exception in 424A, but we accept that that point is arguable based on decisions of the Full Federal Court on that matter, but 424A does not necessarily remove the residuum of common law procedural fairness.  The question then arises whether section 422B has removed that residuum of procedural fairness, and that is the point of importance, we say, arises in this case; that on the face of the facts there has been a denial of procedural fairness.  The question is if the country information falls within the exception in 424A, after the enactment of 422B, a residuum of procedural fairness that should have been applied here to allow this applicant to have a proper opportunity to consider this information that was being put before him.

My learned friend would no doubt take your Honours to the explanatory memorandums for the introduction of section 422B and also to the Full Federal Court’s decision in Lay Lat and say that 422B is now an exhaustive statement, removing all natural justice requirements from the Refugee Review Tribunals review process.  Your Honours, it is our submission that the words of section 422B are somewhat unusual and they are not determinant of the matter, particularly the tail to section 422B which talks about the division is:

taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. 

Now, should the country information fall within exception 424A then there is country information adverse to an applicant that is not met by the mandatory requirements in 424A.  We have an applicant who is denied procedural fairness in respect of adverse information in circumstances where he is not properly able to respond to it and he faces a decisive decision that has been made on the basis of that country information and he is unable to obtain judicial intervention to ensure that procedural fairness was extended to him in giving him a fair hearing. 

Essentially, what we are saying, your Honours, is that the point of importance is the proper relationship here between 424A and 422B and whether there has been a removal of the natural justice rules in respect of Refugee Review Tribunal hearing processes, and, we say, your Honours, that this is an appropriate case upon which to explore that.  The facts of the case are such that clearly procedural fairness was not extended.  The question is whether that is what Part 7 of the Migration Act now allows or whether there is some residuum of common law procedural fairness left. 

Your Honours, if I could just move on to our last point.  Actually, before I do that, your Honours, there is one other point in respect of 422B.  The explanatory memorandum, which I think my learned friend has provided to you as part of its documents it intends to refer to, there are clear statements, particularly by Justice McHugh in the Miah Case, which indicate that where rights are concerned which are decisive upon an applicant, that explanatory memorandums are not generally the way one should approach the interpretation of a provision and one should look to the words of the provision.

We would say that this is an appropriate case where that principle should apply, that the words are not crystal clear as to their meaning and intent, and if one is to remove natural justice they should be very clear words.

Your Honours, if I could just turn to our last point which was whether the applicant’s claims had been properly dealt with according to law.  There is not much more I can add to what is set out in the outline of argument on that, but I did want to take your Honours to pages 63 and 64 of the application book which is the judgment of Justice Ryan.  His Honour is talking about the translation and right at the end of the page he is referring to Justice Nicholson considering that:

the alleged [translation] errors were not material to the matters decided adversely to the appellant.  One such matter that was canvassed in the course of oral argument this morning was an answer to the Tribunal’s enquiry as to why the appellant had applied for a protection visa in 2003.  The appellant’s actual answer included the sentence, “But things got worse in 2003.”  That was mistranslated as, “Because the situation was becoming worse after 2000.” . . . did not exclude reliance by the applicant on the events of 2003 -

but it certainly had the opportunity to mislead the Tribunal, it having found country information that related to demonstration activity and that country information relating to 2000 and 2002.  It had an answer from the applicant that talked about “worse after 2000” and from there it has reached its conclusion and has not gone, as we say it properly should have, to the country information that the applicant provided of the worsening situation after May 2003 when there had been an attack on supporters of the pro‑democracy party, the NLD. 

As a consequence, it is our submission that the Tribunal has clearly denied the applicant proper administration.  His claim was that he feared returning to Burma because of changed circumstances after May 2003.  The Tribunal, as a result of country information it had before it and an answer it had from the applicant which had been mistranslated, was led away from the proper consideration of the applicant’s claim and the evidence he provided to support his claim.

In our submission, that has caused a miscarriage of justice here, a misadministration of justice, and that is a matter upon which the Court, in our submission, should give some consideration to dealing with this matter on appeal.  Your Honours, there is probably nothing more I can add to my summary of argument.

CALLINAN J:   Thank you, Ms Price.  Mr Tsaknis, we would just like to hear you on that last point that was raised by the applicant, the mistranslation.  It is possible to visualise or to imagine, and I do not know

what the material shows, that there may have been significant change at some stage, some specific stage, rather than generally after, say, 2000.

MR TSAKNIS:   We say two things in response to that.  The first thing we say is that the Tribunal was cognisant of those changes, indeed, had regard to country information after 30 June 2003.

CALLINAN J:   Is that apparent from the record.

MR TSAKNIS:   Yes, it is, if it please the Court.  If I can take you to the judgment which commences – it is synonymous with the pages in the appeal book – page 1 of the application book.  If one first turns to page 6 of the application book at the top of the page one sees reference to what the applicant in that circumstance included in the matters which he wished the appeal to consider which included, relevantly, in the fourth line the:

Amnesty International Justice on Trial, dated 30 July 2003; an eye witness report on the Tabayin killings of 30 May 2003; DIMIA letter of 4 March 2004 –

which dealt with that.  If one follows the material which was considered through relevantly to page 11 of the application book there appears a cable, 25 February 2004.  I would invite the Court to turn to about line 27 of page 11 which begins with the words “On May 30” about five words in, “government‑affiliated forces attacked an NLD convoy”.  So that is the Tabayin killing which is referred to in that cable which continues to the end of that paragraph for those six or seven lines on page 11.

Then one turns to page 12 at about line 27, the final paragraph on page 12, and one then has a list of a range of country information which was considered which relevantly goes through the list of other information that was considered.  That really includes all the other material.  So there was certainly the post‑2000, or 30 June 2003 situation was considered.

We say the fundamental flaw, and there is a fundamental flaw in the appeal, is that the case had been conducted on the basis that – or ignores the fundamental basis that what the applicant was concerned about and how he conducted his case was it was his activities in Australia which were the reason that he would suffer harm if returned to Burma.  That is made clear in the reasons for decision at page 7.  It is at line 25 which says:

The Tribunal asked what the applicant feared if he had to return to Burma.  The applicant stated that they would know his involvement in Australia if he was forced to go back and ‑ ‑ ‑

CALLINAN J:   I do not think we need to hear you any further, thank you.

MR TSAKNIS:   May it please the Court.

CALLINAN J:   Ms Price, is there anything you want to say in response to what has been said by the respondent?

MS PRICE:   Yes, just briefly, your Honours.  The US country information that my learned friend took you to at pages 11 and 12 is the only place in the Tribunal’s reason for decision where it refers to post‑May 2003 events and it does not make any assessment of that material.  It simply cites it.

My learned friend says that the application was run on the applicant’s activity in Australia.  That was certainly how he pleaded his case to the Tribunal, but with the added aspect before the Tribunal that things had changed after May 2003, bearing in mind his application had commenced before May 2003, that there had been changed circumstances.  He had had advice from his parents that he should not return and he presented evidence to the Tribunal of what was happening there after 2003. 

It is our submission that the Court’s decisions in cases like Guo make it very clear that in assessing the applicant’s fear of persecution, whether it is an objective fear, one must look at future events and the current situation and it is our submission that the Tribunal has led itself into error by looking only at country information relating to the position for Australian demonstrators in 2002 and also the answer received from the applicant that things had changed from 2000, a mistranslated answer, and it has not gone any further.

The Full Court below endorsed the comments of Justice Nicholson that the Tribunal has not made any reference to the events of 2003 or any country information after 2003 because clearly there could have been no change in the situation and that the country information it relied upon, going back to 2002, was relevant.  It is our submission, your Honour, that that caution needs to be attached to that because it is clear that the Tribunal was capable of being misled.  It had misled itself on what the country information said.  It had a misleading answer on translation and there is nothing to say – the Tribunal does not say itself that it could find no country information relating to changed circumstances after 2003.

So, in our submission, there is a real risk that the Tribunal has fallen into fundamental error here in applying the approach required by the Court in Guo to assessing whether the applicant had an objective fear of returning to Burma in the current situation.  If the Court pleases, those are my submissions.

CALLINAN J:   Thank you.

In this matter the applicant argues that the applicant has been denied procedural fairness by reason of a misrepresentation of other country information and a mistranslation during the course of the hearing before the Refugee Review Tribunal.  We do not think that such errors as may have been made are ones of real significance but, in any event, the findings of fact are such that the applicant has not been able to bring himself within the Convention as a person entitled to protection as a refugee.  There is no basis, therefore, for the intervention by this Court and, accordingly, the application should be dismissed.  Do you ask for costs, Mr Tsaknis?

MR TSAKNIS:   My instructions are to ask for costs.

CALLINAN J:   Can you oppose them, Ms Price?

MS PRICE:   Your Honour, there is only one ground for opposition, that my client is very unlikely to be able to pay them.  He is here on a bridging visa under which he is not permitted to work.

CALLINAN J:   I understand that, but it is not a reason why costs should not follow the event.

MS PRICE:   Exactly, your Honour.

CALLINAN J:   Ms Price, thank you for your assistance.  The Court is indebted to you for that.

MS PRICE:   Yes, thank you, your Honours.

CALLINAN J:   Thank you.

AT 1.48 PM THE MATTER WAS CONCLUDED