The case of his life
How a refugee and a lawyer from a student union took the government to the High Court and won.
Words by Naaman Zhou.
Photography by Tom Joyner.
They met in a small room in west Homebush. On one side, the lawyer. Thomas McLoughlin: late-forties and working for free, tall in his shorts and hiking boots. On the other, the client. A young man known only in the documents as WZARH. Sri Lankan and open-hearted, he had thick hair, a thin frame and three scars down his right arm.
They had heard of each other, but had not met. A man called Dr John Sweeney stood there, the bridge. A veteran coordinator at the Edmund Rice Centre, a Catholic social justice agency, Sweeney was a frequent mediator between the refugees of Sydney's west and the city’s pool of pro-bono lawyers. To be here, McLoughlin had followed a daisy-chain of contacts; the initial introduction to Sweeney coming from his previous job for an expert solicitor, Stephen Blanks.
WZARH was an asylum seeker caught in the machinery of due process. A Tamil, he had arrived in November 2010 and applied for refugee status four days before Australia Day. The Department of Immigration had mailed him back a rejection, but something was amiss. A disappearance. And that was why Thomas was here.
By all accounts, their first meeting was fairly dry. The case, says Thomas, "was a technical legal challenge, all about procedural fairness on the papers".
“There was little on the day he could have told me to change his prospects.”
What Thomas left with was an impression: WZARH was worried and quite alone. Honest and sincere, his personality hadn’t been damaged by the torture he had suffered, though his body, quite visibly, had.
“He was willing to put his trust in us,” says Thomas, “and that indicated to me he was a person willing to see the good side of Australian society, and the Australian legal system.”
Over the next three years, WZARH would come up against that system in a way few asylum seekers do. He and Thomas clambered up through the Federal Circuit Court, appeared (on appeal) before the full Federal Court, and in 2015, landed before the High Court. There, he would be victorious on paper, but perhaps a little less triumphant in the long coda of real life that followed.
He was from the north of Sri Lanka. Holder of a variety of jobs, he had studied diesel engines, worked with wood and paint, wound motors in Vavuniya. When he was 16, he was assaulted by the navy, who controlled his village.
His testimony to the Department of Immigration reveals how the trouble began. When WZARH was the leader of a local youth club, he was summoned to meet a pro-government paramilitary organisation, the Eelam People's Democratic Party (EPDP). He did not attend. In the next election, he campaigned for a rival candidate. In March 2004, the EPDP planned a public meeting and he and other Tamil youths blocked the area with their bodies.
That evening the EPDP came on their motorcycles. They took him to their camp where, the court documents say, he sustained injuries to his head, his left arm and his back. They cut his arm with razor blades and pressed his testicles until he fainted. He still suffered the inflammation four years later and halfway across the world, when he had to be hospitalised for the pain. When the EPDP released him that night, they said he would die if he returned.
Two different representatives of the Department of Immigration heard this story in two very different ways. The first, known for clarity’s sake as the first Independent Merits Reviewer (IMR), met WZARH in person. They had an in-depth interview, recorded on tape and transcribed. WZARH told his story and the IMR jotted down notes for officials to cite later.
The work began to proceed in the way these things are supposed to proceed. The tape was converted to type, the paper trail grew fat. The day of the interview, the IMR had attempted to actualise the whole business to WZARH, to explain the knotty concept of "due process" in digestible terms. It came as a promise:
“I will undertake a fresh rehearing of your claims and make a recommendation as to whether you are a refugee. This will be given to the Minister for consideration.”
That did not happen.
At a date that is unclear, and for a reason that was “unspecified” even to the High Court, WZARH’s reviewer gave up the case.
With the first IMR now “unavailable”, a replacement stepped in. But while the former had interviewed the asylum seeker, the substitute did not. He decided to finish his inherited judgement using his predecessor’s transcripts, tapes and incomplete thoughts.
Later court documents say that WZARH was given no explanation why his first reviewer disappeared. He was left unaware that the person now judging his fate was someone he had never met. No one even told him his reviewer had been replaced.
It was a hasty jigsaw: the first IMR compiled the evidence, the second delivered the verdict. In less than six months (depending on when the first IMR abdicated), the ruling was handed down. It was a no.
In this messy, late-stage interchange, Thomas, via Sweeney, saw the glimmer of a legal challenge. “Here he was with a visible physical injury as a claim for persecution, and the reviewer never saw him.
“It’s comparable to anyone in Australia, going to court, having their case heard from one judge, and turning up on the day of judgement and finding someone else there.”
With WZARH’s consent and Sweeney’s assistance, a claim was filed in the Federal Circuit Court – the whole thing headlined by a concert musician-turned-barrister, Paul Bodisco.
Thirteen storeys above the William St Cross-City tunnel, the judgment, when it came, was surprisingly quick. A dismissal made dismissively. In the Federal Circuit, the lowest court available, they felt the sensation of falling at the first hurdle.
Thomas and Bodisco argued the instinctive principle: WZARH's decision-maker had never seen his primary evidence – those razor-blade scars. He been denied the chance to be heard in person, and with this, procedural fairness.
They came up against Justice Kenneth Raphael, English-born and nearing the compulsory retirement age of 70. He had a reputation for conservatism. "You could never accuse him of having a soft heart for refugees," said a separate source in the legal profession. When Justice Raphael retired in 2015, he became a consultant for the very law firm, Sparke Helmore, who represented the Department of Immigration that day.
"He appeared to be hostile to our counsel," says Thomas. “You'd be forgiven for thinking it was a hopeless situation.”
The decision he delivered would later be overturned, unanimously, by three judges of the Federal Court proper. But on the day it was bruising.
Raphael sided with the second IMR, saying WZARH's story was inconsistent and unconvincing. The Tamil politician WZARH claimed to campaign for had been in Colombo when WZARH said he was in Jaffna. This, said the IMR, meant that WZARH was not actually a dissident.
Though he accepted the claims of torture, he denied that WZARH carried the political profile to be persecuted if sent home.
Thus, Raphael ruled the in-person interview immaterial. Even if the second IMR had seen the scars, this wouldn't have negated the apparent inconsistencies in his testimony, nor the lack of present danger. The scars were WZARH's past. Supposedly, his future looked clear.
Years later, Thomas is still frustrated by that day.
"As a lawyer you have to be careful, because you don’t have control over many things. And working in refugee matters can be quite disheartening. I try to mediate that with a professional distance, but you do feel a loyalty to these refugee clients. I only have a few – there are some refugee lawyers who take on a lot. But this was the first case where I had that sense of main responsibility.
“There aren’t many clients in general practice where, if it all goes to custard, they might die."
In the food-court basement that is the University of Sydney’s Student Representative Council, Thomas’ day-to-day clients present an array of different challenges. When I first meet him, he is making filing cabinets from old fruit boxes. At any given time, he’s a man on two jobs.
His current role, split with his colleague, Annie Zeng, is part catch-all legal advisor (dealing with everything from academic appeals to car accidents) and part counsellor for any student who walks in. That day, he is tracking a student’s bail hearing while reconstituting cardboard walls, storing his notes where once there were Sunkist lemons.
Thomas and Annie offer full-time, free legal support to the student body. Annie has a migration agent’s license and fluency in four languages. For international students – often unmoored and under the pump – she and Thomas are a valuable resource.
Despite how hard the SRC offices are to find, the reception most days is full of students seeking their advice.
"There aren't many clients in general practice where, if it all goes to custard, they might die."
Orange Grove Public School sits in Lilyfield – a sort of forgotten, ever-misplaced institution: a local school named after a place it's not in, the suburb itself always lazily called Rozelle or Leichhardt.
Long after the kids had gone home, one evening in November 2013, Thomas sat in his Mazda with a pile of documents needing a signature. Inside the gates, WZARH was working. A cleaner, he came in to dust halls, sweep corridors and otherwise oil the hinges of the very government trying to shut the door on him. Back then, he had been granted working rights. Not anymore.
In the car, they had a meeting. Thomas had brought WZARH the paperwork for a concession on the filing fee of their next appeal. They were heading higher: into more arcane, more expensive courts, into the high-altitude, low-air environment that asphyxiates even the most cashed-up and educated Australians.
"Not all lawyers will be willing to go out, John Grisham-style, into the street or workplace where the asylum seeker is earning a living," says Thomas. "It's going to that extra effort that makes the difference between progressing a refugee’s case and just being smothered by the process."
Before that initial loss in the Federal Circuit before Raphael, Thomas had pulled a similar trick. Trekking out to WZARH’s house in the western suburbs, he took a picture of the young man’s arm. He submitted a signed affidavit that the original IMR had seen these injuries and the second had not. He made sure to take colour photos.
The photos, with whatever proof and power they had, were contained within the legal documentation all the way up to the High Court. Even as they settled the index at the registrar’s desk, Thomas says he made sure they were close to the top of the pile.
He wonders if the photos played a major role. Certainly, when they went back to the Federal Court, twelve months later, they won. In the High Court a year after that, the verdict was even more emphatic.
"Sitting in the High Court watching five High Court judges do tag-team demolition of a government senior barrister"
The most satisfying part of the victory was perhaps the pettiest. In this far-fetched triumph in the highest court in the land, the whole by-the-bootstraps turnaround is best captured by a catty rebuke in the stenographer’s record.
As the lawyers fronted to the bench, the barrister for the Department, performing verbal calisthenics before the eventual lunge, asked for an estimate of how long the trial was to run for.
“Yes,” said Justice Kiefel, “[Your appeal] was said to be a one-day case. It cannot possibly be that? It is a short point.”
“I think we will finish within that time,” said the barrister, on the back foot.
“Within one day?”
“Shorter than that time.”
“Yes,” said Kiefel, “I would have thought perhaps lunchtime would see us out.”
It was, after that, one-way traffic in WZARH’s favour.
A year before, in the Federal Court, the judges had ruled against the Department in no uncertain terms. They said that, while WZARH had no right to an in-person hearing, the substitution of reviewers was a “fundamental change to the administrative process” that happened “without the respondent being alerted”. The first IMR had made a promise of how things would happen, and once reneged upon, this became a breach of procedural fairness. In short, “they did not do what they said they would."
Thomas saw this decision as fairly indisputable, yet the Department – in a move that some saw as somewhat frivolous – appealed to the High Court.
“Given the strength of the 3-0 decision of the full Federal Court, it seemed curious that the Minister was so willing to challenge it,” Thomas tells me.
Hence, Justice Kiefel’s, and the High Court’s, apparent irritation as to their time. In the long-awaited final word on the matter, they affirmed the decision the full Federal Court had already made.
There was a rhythm to the whole thing – every argument from the Department matched by two queries from the bench. The transcript paints a landscape of constant rebuttal:
"DEPARTMENT: There is no general obligation for [the decision-maker] to conduct any interview…But then Justice Gordon’s question, with respect, is a little different. It –
JUSTICE GAGELER: I think it is exactly the same.
JUSTICE GORDON: It is the same."
Harried, the Department barrister took up the majority of the hearing. WZARH’s barrister, a man called Shane Prince, was allowed to speak nearly uninterrupted.
Thomas grins. “It was awesome to be sitting in the High Court, across the lake from where I was a law student at ANU, watching five High Court judges do tag-team demolition of a government senior barrister.”
In a way, it was fairly anticlimactic. A kind of limp dismissal, done in eight A4 pages; no fireworks. For WZARH and his team, it was a triumph, but crucially it was no salvation. All the victory meant was that his refugee visa application would be reassessed, not necessarily approved. Six months later, WZARH has still not heard anything. Not so much a winner as a survivor, strung out on a series of bridging visas.
“I felt proud we’d served him well,” says Thomas. “He now has a fighting chance to make a contribution to Australia.”
The provision of that chance is really the core of what lawyers like Thomas do for their clients. A wrangling of paperwork, a know-how of legal machinery, the dry ability to see violations of process when they happen and let their clients know.
Beaming, Thomas says, “it’s been the best legal outcome I’ve ever had. Easily”.
In March, I visit Thomas again. Back in the Federal Circuit Court on a rainy day, it's a new client but the same motions. The man from the student union (working in his own hours) against the Department of Immigration. It’s another loss for the former.
The only question the judge asks Thomas is whether he’ll dispute the amount of the costs his client must pay.
We wait for the client, Karim* – a Hazara with a missing leg to cope with and a wife, daughters and elderly mother to worry about. "I have some bad news," Thomas says, and shakes his hand.
Over coffee, Karim says his teeth hurt and Thomas tries to find out who his dentist is. Only once that is sorted do they plan the appeal. Karim asks him which court it will be in.
“Well what court is this?”
“It says Federal,” Thomas explains, “but it’s the Federal Circuit Court, it’s a bit lower.”
In Afghanistan, Karim was a professional driver. Good at navigating, he is at this moment nevertheless lost.
Thomas draws him a quick sketch of the Australian legal system. He circles High Court. “It’s the top one,” he offers.
He’s been there before.
*Name has been changed