NAPL v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT WILCOX J: 1 This is an application for review of a decision of the Refugee Review Tribunal. 2 The Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention on Refugees 1951, as amended by the Protocol on Refugees 1976. Accordingly, the Tribunal affirmed a decision by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing to grant to the applicant a protection visa. 3 The applicant has appeared for himself at the hearing of this application for review. However, he has had the assistance of an interpreter and also the benefit of receiving legal advice from counsel assigned to him under the Panel Scheme administered by the Court. The relevant counsel, Mr Ben Zipser, has gone further than he was required to go under the Panel Scheme. He has provided a written submission setting out arguments on behalf of the applicant. I express the appreciation of the Court for this additional assistance to the applicant. 4 Mr Zipser has identified what he claims to be three errors made by the Tribunal in its decision about the applicant. He accepts that s 474 of the Migration Act, as inserted in the amendments which took effect on 2 October 2001, apply to this case. Mr Zipser also accepts that, on the interpretation of s 474 that was adopted by the majority of the Full Court of the Federal Court in NAAV v Minister of Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228, this application must fail. However, he says: "If this Court accepts that the RRT's decision is infected by jurisdictional error this Court should not hand down a decision until after the High Court hands down a decision in Applicants S134/2002; Re Minister for Immigration and Multicultural and Indigenous Affairs S134/2002." 5 The reference is to a proceeding that was recently heard by the Full High Court of Australia. I am informed there was argument as to both the constitutional validity of s 474 of the Migration Act and its proper interpretation and application. 6 Mr T. Reilly, counsel for the Minister, submits that, even if the Court came to the conclusion that one or more relevant errors had occurred, the Court ought not to take the course suggested by Mr Zipser. Mr Reilly argues that, if the High Court should come to a conclusion in S134/2002 that materially differs from the Full Court decision in NAAV, it will be open to the applicant to make an application for extension of time to appeal and any Full Court of this Court can be trusted to deal with that application appropriately. Furthermore, Mr Reilly disputes that any of the three alleged errors has occurred. 7 I have reached the conclusion, consistently with Mr Zipser's concession, that s 474 of the Migration Act does have the effect of precluding this Court intervening, even if one or more of the errors has occurred. This is not a case in which any of the three so-called Hickman conditions applies. Nor is it a case of failure to comply with an inviolable condition of the legislation, even if there is an error of a jurisdictional nature; as that concept has been applied in cases like Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. Jurisdictional error is not, itself, enough to overcome the limitation on the powers of the Court that is imposed by s 474. See NABM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs 202 FC 294 at para 25. 8 Under the circumstances, it is not essential that I reach a concluded view upon the question whether any of the alleged errors occurred. However, in case the matter goes further, I indicate my view that this is a case of jurisdictional error. The most obvious example of this is the third error identified by Mr Zipser, namely the failure of the Tribunal to deal with the applicant's claim that he was at risk of persecution by the LTTE. 9 The applicant is an Indian national of Tamil extraction. According to the case he put before the Tribunal, he developed sympathy for the struggle of the LTTE on behalf of Tamils in Sri Lanka. While still quite young, apparently aged only about 19 years, he took action in India to support the activities of the LTTE. This lead to his being arrested by the police, he says, in September 1999. He was accused of being a member of the LTTE. Apparently it was an offence, under Indian law, for anybody to give assistance to the LTTE. The applicant said he believed he was being charged with that offence but no details were ever given to him. He was held for about a month, during which time, he says, the police frequently beat him, using their arms and sticks. Apparently, they did this for the purpose of obtaining information but the applicant said he did not know anything. They would beat him and deny him regular meals and proper water. After about a month, he was released without charge. He was arrested again, about the end of November 1999. He said, on this occasion, he was held for three months. Once again, he understood that charges were laid against him. But this was apparently not done. He was again released without charge. 10 The applicant put two claims to the Tribunal. One claim is that he feared persecution by the police, on the basis that he was suspected of having engaged in criminal activity. The other basis was he feared mistreatment amounting to persecution by the LTTE because, since his more recent release from police custody, he has not given any further assistance to the LTTE. The Tribunal Member dealt with the claimed fear of persecution by the police, but he did not deal with the claim of fear of persecution by the LTTE. 11 Mr Zipser's submission is the Tribunal's failure to deal with the second matter constituted a jurisdictional error. That seems to me obviously correct. The second matter was a serious claim made by the applicant. It needed to be considered and dealt with by the Tribunal. 12 In the course of submissions, Mr Reilly drew my attention to something stated by the Tribunal member in that part of the reasons for decision that summarised the course of the hearing. The Tribunal member referred to what he had put to the applicant, during discussion, about the implausibility of the LTTE taking revenge against him. 13 I cannot accept a reference, in the narrative of the course of the hearing, to a view tentatively held by the Tribunal member as a discharge of a Tribunal member's obligation to consider the substance of each claim of persecution put to the Tribunal. On numerous occasions, judges have rejected contentions to the effect that a comment in argument by a judge or Tribunal member indicates a fixed view, so that any subsequent determination is one affected by pre-judgment or bias. The rationale of that approach is the relevant judge or Tribunal member is merely inviting comment, in order to assist him or her in forming a concluded view. It has often been said that it is useful for a decision-maker to articulate passing thoughts about a case in order to obtain potentially helpful comment. If that is so, it must equally be true that such an observation is not to be treated as a definitive disposal of a substantial matter. In my opinion, the third point noted by Mr Zipser is clearly correct. It means the Tribunal's decision is affected by jurisdictional error. 14 The other alleged errors can be discussed more briefly. 15 The first error alleged by Mr Zipser, in his submission, is that the Tribunal accepted that the police mistreated the applicant, but did not pause to consider whether this was because of his identity or membership of a class of persons of which he was a member. The approach of the Tribunal, apparently, was to assume that the type of mistreatment of which the applicant complained was par for the course in India. 16 At para 60 of his reasons for decision, the Tribunal Member said: "While their methods may have been suspect I am satisfied that the police were involved in the legitimate exercise of their police duties and were not subjecting the applicant to persecution for convention reasons." 17 I find this a startling conclusion. It is not apparent to me why the Tribunal member thought the legitimate exercise of their duties would involve police holding a person for weeks, or months, at a time, without charge, and assaulting him during his detention. However, I think the Tribunal's conclusion is one of fact and is not susceptible to review in this Court. 18 The second alleged error concerns another startling conclusion. Mr Zipser summarised the point, in his submission at para 10, by saying: "In the present case the RRT appears to have accepted that: (a) In September 1999, the applicant was detained for one month without being charged or without being brought before a Court. (b) In this period the applicant was beaten frequently by the police and was not given regular meals or proper water. (c) In November 1999 the applicant was detained for three months without being legally charged and was again subject to mistreatment by police during interrogation." 19 Mr Zipser's submission included Court book references to the relevant material. On the basis of this summary he, justifiably, says the Tribunal appears to have accepted each of these three matters. 20 Notwithstanding its acceptance of these three matters, the Tribunal held that the treatment, or mistreatment, received by the applicant did not amount to persecution within the meaning of the Convention on Refugees. Mr Zipser argues it was not open to the Tribunal to reach that conclusion. However, although I find the Tribunal's conclusion a startling one, once again I think it is a conclusion of fact. 21 But for s 474, I would hold that there was jurisdictional error entitling the applicant to reconsideration of his case; the relevant jurisdictional error being the third matter identified by Mr Zipser. However, I am of the opinion that s 474 precludes the Court granting any relief to the applicant. 22 I do not think I would be justified in taking the course, suggested by Mr Zipser, of deferring judgment until after the decision of the High Court in matter S134/2002. I should act on the law pronounced by the Full Court. If the decision of the High Court subsequently suggests the Full Court decision was wrong, in a manner that affects the case of this applicant, that would provide to him a significant argument in favour of an application for extension of time to appeal against my decision. Alternatively, it would be open to him to appeal immediately and to consider the future of the appeal in the light of the High Court decision. I should deal with the case on the basis of the law as it is currently understood; that requires me to dismiss the application.