FEDERAL COURT OF AUSTRALIA

Applicant A82 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 308

LEGAL PRACTITIONERS – responsibility of counsel to inform Court of authority on point against client’s case

MIGRATION – no reviewable ground disclosed

Applicant A168 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 250 followed

Ashby v Russell [1997] ANZ Conv R 321 cited

Ridehalgh v Horsefield [1994] Ch 205 cited

APPLICANT A82 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, SUSAN McILLHATTON, MEMBER REFUGEE REVIEW TRIBUNAL & PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

No S 653 of 2003

FINN J

ADELAIDE

18 MARCH 2004

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the first respondent’s costs. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     The High Court remitted the present application to this Court on 11 June 2003.  It seeks relief under s 75(v) of the Constitution in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision refusing the grant of a protection visa to the applicant.  He was in the Tribunal’s eyes very much the author of his own lack of success.  It found the manner in which he gave his oral evidence, the substance of that evidence, the totality of the information he provided about his claims and the manner in which he provided that information to be totally unsatisfactory.  He did not improve his prospects of success in this Court by the manner in which his legal adviser was apparently instructed to prosecute this application.

2                     I dismissed the application.  These are my reasons for so doing. 

3                     The applicant is a Nepalese citizen.  In his visa application he claimed:

(i)         that he was an executive member of the Human Rights and Peace Campaign Nepal (“HURPEC”); 

(ii)        that he advocated freedom, human rights, and democracy to all Nepalese, whether rich or poor;

(iii)       that he “exposed government corruptions, massacres by Maoist and government both that made me to fear for [the applicant’s] life”; 

(iv)       that he fears harm from Maoist insurgents and government authorities;

(v)        he will be harmed because of his membership of a particular social group, namely human rights activist.

In support of his claim the applicant submitted to the Department what was claimed to be a HURPEC identity card.

4                     As the Tribunal later noted, he did not provide any other details in support of his application.  He was invited by a delegate of the Minister to comment on country information provided to him.  He failed to do so.  Unsurprisingly the delegate expressed the opinion that his claims were vague and lacking in detail.

5                     The applicant did not provide any further information to the Tribunal in support of his claim, though he did give oral evidence.  I have already indicated the Tribunal’s view of his oral evidence and of the information he gave relating to his claims.  The Tribunal did not accept:

(i)         that the applicant was a human rights worker with HURPEC;

(ii)        that the applicant had an adverse profile with either government authorities or Maoist rebels for exposing their respective human rights violations, or because he was opposed to them; 

(iii)       that he had received any threats from the Maoists;

(iv)       that he faces a real chance of persecution from government authorities or Maoist rebels. 

The Tribunal found the applicant not to be a reliable witness and listed the reasons for it arriving at that finding.  It did accept that there was generalised violence in Nepal, but that this did not amount to persecution under s 91R of the Migration Act 1958 (Cth). 

6                     In reaching its conclusion that the applicant was not a human rights worker with HURPEC, the Tribunal said: 

“[T]he applicant’s oral evidence as to when HURPEC was formed and the name of its leader is not consistent with information before me from the official internet web site of HURPEC and referred to elsewhere in this decision.

I am mindful of the need for caution in not requiring an unreasonable level of knowledge or sophistication from an applicant about a political group with which they claim to be involved.  However, in the circumstances of this case the applicant has sought to portray himself as a person involved in exposing human rights violations and described himself as an executive member with HURPEC.  In my view if the applicant had been involved at the level he has sought to claim [i.e. as an executive member] then it is surprising that in his oral evidence he did not know the correct year in which HURPEC was formed or the identity of its founder and current leader.  Indeed when the applicant was confronted with this information he disingenuously suggested that he did not know what a web site was.  I do not accept his assertion that these matters could be explained by reference to his involvement in his district of Pipara Simara Bara as distinct from Kathmandu.  As I indicated to the applicant the head office and central committee of HURPEC  is located in Kathmandu but branch offices exist in districts throughout Nepal.

I note that the applicant has provided a copy of what purports to be his HURPEC identity card.  However, I am not satisfied that the provision of this document of itself demonstrates that his claim that he was a human rights worker for HURPEC is reliable.”

7                     Somewhat remarkably the applicant’s legal adviser has relied upon these paragraphs as disclosing jurisdictional errors by the Tribunal.  Those errors are, seemingly:

“The Tribunal took into account an irrelevant consideration, namely the Applicant’s knowledge of the year in which HURPEC was formed and the identity of its founder and current leader.  This was a critical link in the Tribunal’s chain of reasoning.

…

The Tribunal failed to take into account a relevant consideration, namely the Applicant’s HURPEC identity card.”

8                     Given the terms of the passages I have quoted, the burden of these grounds is far from obvious.  What makes them remarkable is that the second of them mirrors a ground advanced by the same counsel, Mr Clisby, which was rejected by Mansfield J on 12 March 2004 in Applicant A168 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 250.  The factual setting of, and the claims made in, A168, have marked similarities with the present.  Indeed the first of the above grounds refers to a factual matter which appears also to have occurred in A168. 

9                     In dealing with the HURPEC card/relevant consideration ground, Mansfield J held that it must be rejected for two reasons:

“The first is that the Tribunal did take into account the HURPEC identity card.  In its recital of the material it had available, it specifically referred to the HURPEC identity card including that it described the applicant as an executive member.  In the ‘findings and reasons’ section of its decision, it specifically referred to that document and gave a reason why, notwithstanding its content, it did not accept the veracity of the claim that the applicant was an executive member of HURPEC.  Whether that process of reasoning is correct or not it does not demonstrate that the Tribunal failed to have regard to that piece of evidence.  It may be that the Tribunal considered the expression on the card ‘Executive Member’ to convey something by way of involvement in HURPEC at a lesser level of prominence than that which the applicant asserted.  It specifically addressed his claim to be a prominent member of HURPEC by reason of his human rights activities and rejected it.  In rejecting it it had regard to that piece of evidence.

The second reason, in my view, is that that piece of evidence is not itself a relevant consideration.  It is a piece of evidence going to a relevant consideration.  That is, it was a piece of evidence going to an integer of the applicant’s claim.  He claimed to be a prominent member of HURPEC and therefore to have been imputed with an adverse political opinion by reason of his activities on behalf of HURPEC, by both the Nepalese authorities and by the Maoists.  The HURPEC card was a piece of evidence going to that topic.  The Tribunal considered the claims and rejected them.  It had regard to the piece of evidence.  The piece of evidence itself was not a relevant consideration in the sense of being a consideration which the Act requires the Tribunal to have addressed.  What the Act requires the Tribunal to have addressed is each integer of the applicant’s claims.  The Tribunal did so.”

10                  While there are slight factual differences between the two cases, the substance of what his Honour said is directly applicable to, and provides a decisive answer to, what Mr Clisby is advancing here. 

11                  When I drew this decision to Mr Clisby’s attention and enquired whether he intended to submit that his Honour’s decision was clearly wrong, he disclaimed any such intention.  I indicated to him that I assumed, consistent with his duty to the Court, that he intended at least to refer me to A168 notwithstanding he had to be furnished with a copy of Mansfield J’s reasons at the hearing before me.  The explanation he gave for persisting in raising this ground of appeal was that he had been instructed to do so.

12                  I am not in a position to, and I do not, suggest that Mr Clisby has offended the “hopeless case” principle:  see generally Dal Pont, Lawyers’ Professional Responsibility in Australia and New Zealand, 473 – 475 (2^nd ed, 2001);  or that he ought not to have acted on his client’s instructions:  see Ashby v Russell [1997] ANZ Conv R 321 at 323;  Ridehalgh v Horsefield [1994] Ch 205 at 233- 234.  What is regrettable is the waste of time and resources occasioned by this proceeding.

13                  In circumstances such as the present the duty of candour counsel owes to the Court has particular importance.  I direct attention in this to rule 25 of the Australian Bar Association’s Advocacy Rules (2002) (which is, in substance, replicated in r 14.6 of the Law Society of South Australia’s Rules of Professional Conduct & Practice (2003)):

“25.     A barrister must, at the appropriate time in the hearing of the case and if the court has not yet been informed of that matter, inform the court of: 

(a)               any binding authority;

(b)               any authority decided by an intermediate court of appeal in Australia;

(c)                any authority on the same or materially similar legislation as that in question in the case, including any authority decided at first instance in the Federal Court or a Supreme Court, which has not been disapproved;  or

(d)               any applicable legislation

which the barrister has reasonable grounds to believe to be directly in point, against the client’s case.”

14                  The only additional comment I should make in relation to the grounds of appeal is that the first (the irrelevant consideration) ground is self-evidently without foundation.  The matters relied upon formed part of the Tribunal’s assessment of the credibility of the applicant’s claim.  It was open to the Tribunal to test that claim in the way it did.  This ground is no more than a poorly disguised invitation to engage impermissibly in merits review of the Tribunal’s conclusion on that claim.

15                  The application, as I have said, has been dismissed with costs. 

Associate:

Dated:              23 March 2004