Applicant P10/2002 v MIMA P10/2002 [2002] HCATrans 512 (24 October 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P10 of 2002

B e t w e e n -

APPLICANT P10/2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 24 OCTOBER 2002, AT 3.06 PM

Copyright in the High Court of Australia

MR M.R.B. HEMERY: I appear for the applicant. (instructed by the applicant)

MS L.B. PRICE: I appear for the respondent. (instructed by the Australian Government Solicitor)

McHUGH J: This matter is also out of time. I think it is 69 days out of time, if I remember rightly.

MR HEMERY: Your Honour, we seek an order that the application, nonetheless, be heard and that compliance with the relevant orders be dispensed with.

McHUGH J: Yes. I am sorry, Ms Price, yes. Have you read the applicant's further submissions?

MS PRICE: I have, your Honour, and I do not object to my learned friend relying on them.

McHUGH J: Right. Thank you very much. Yes, Mr Hemery, proceed.

MR HEMERY: Your Honour, this matter raises four substantive issues that I would like to address your Honours about summarised at paragraph 10 of the further material. The third ground, 10(c), relates to what might be described as the credibility point which I put to your Honours in an earlier application and I am not proposing to speak to that any further.

There are three matters that arise out of this application which are specific to it. I take your Honours first to the matter relating to the non-receipt of letters written to the applicant in the proceedings which I have dealt with in paragraphs 12 to 16 of the written submission and there are matters which have been raised in the applicant's own summary of argument, which has been supplemented by this material, where he has said that, and I quote:

All courts have ignored my family's letter that it showed that my situation got worse after departing Iran and my dismised letter which showed my very bad situation in Iran and my family had mentioned in the letter about dismissing my job and I had recieved my family's letter 2 months before RRT.

That is a reference to the Tribunal. The applicant's position is evidenced by the material contained in his summary of argument and I will take your Honours through that briefly. He claims to have received a letter from his family prior to the Tribunal hearing which he claims included reference to his dismissal "by intelligence service" after departing Iran. He then sought to submit the letter to the Tribunal via, and I quote again:

the lady who was working in the tribunal . . . and she said to me that she would tell to RRT member and it is recorded on my RRT tape.

Then he says that he:

had mentioned to my family's letter in RRT but RRT member didn't ask any question about it -

There is no reference to the letter in the Tribunal decision. He then says that:

A few days before -

the hearing of the judicial review proceedings, he asked, and I quote again:

Mr. Henry Christie (my lawyer) to produce a strong submission to the Federal Court and tell to court every thing about my dismissal letter which was described in my family's letter . . .

Mr Christie said to me that Federal Court doesn't accept new documents. But I explained him that the dismissal letter was mentioned in my family's letter which I received before RRT and I brought it up in RRT and I don't know why happened like this.

There is then no reference to the letters in the decision of Justice Wilcox, nor to Mr Christie raising those matters. He faxed copies of the two letters to the Full Court prior to the appeal which were then contained in the appeal books. However, the applicant

couldn't go to the court because I had engaged Mr. Christie as my lawyer.

Unfortunately, he didn't tell to the court whatever I asked him to say.

There is no reference to the letters in the decision of the Full Court, nor of counsel raising them with the court. So this is a point that the applicant claims that the material that he has set forth - - -

McHUGH J: Well, it seems, does it not, to run counter to Eastman's Case? It is an attempt to get evidence before us that was not before the courts below.

MR HEMERY: Except to the extent that the applicant in this case claims - admittedly in material in his application, not in any evidentiary form, that he had sought for that material to be received by the court at first instance and that through circumstances involving his lawyer that material was not put to the court. So it was not a situation where there was any deliberate decision in the conduct of the case for the material not to go to the court, but a situation where the circumstances that obtained in the - - -

McHUGH J: Yes, but we could only consider this point by receiving evidence from him and receiving evidence from those who might deny it. It does not arise out of any error on the part of the Full Court, does it?

MR HEMERY: It is a matter I am instructed to put to the Court.

McHUGH J: I understand that, but your client's remedy is really to bring the Minister's attention to this letter and ask him to exercise his powers either under 417 or 48B of the Migration Act, is it not?

MR HEMERY: I make no further submission, your Honour.

McHUGH J: Yes.

MR HEMERY: I would like to draw the Court's attention to two other matters, both arising out of the decision of the Tribunal as recorded in its reasons about which the applicant is aggrieved. First, is discussed at paragraphs 20 to 26 of the written material and it concerns findings about the treatment of participants in a demonstration in July 1999 that it was accepted the applicant was a participant in.

McHUGH J: Yes.

MR HEMERY: The applicant claimed he had a well-founded fear of reprisals against him in relation to his activities in that demonstration which caused him to flee in July 2000, about a year later, and in order to assess the credit to be given to his story the Tribunal had regard to independent information about how others who participated in the demonstrations had been treated to test whether or not the fear that he says led to his departure was well founded and the complaint that is made about the way in which the Tribunal approached that is that there was a range of conflicting information that the - - -

McHUGH J: Well, they seem to accept that the ringleaders were gaoled.

MR HEMERY: Yes, your Honour. At one point they seem to accept that only the ringleaders were gaoled and then they, elsewhere, rely on information which points to a different conclusion, that is, that participants who may or may not have been ringleaders who did not resort to violence were gaoled for up to 12 months.

McHUGH J: Twelve months, yes.

MR HEMERY: Which means that people who were in the same class as this applicant may well have been in gaol at the time he departed.

McHUGH J: But can you put it any higher than it is just an error of fact on the part of the Tribunal?

MR HEMERY: We would put it on the basis that the evidence that weight was placed on was so conflicting, both propositions could not be correct, that it simply was no evidence at all really to form the view that whether or not he was a ringleader was relevant to the assessment of whether he had a well-founded fear. There just was not any evidence at all that the Tribunal could reasonably rely on to apply that test to determine whether or not he had a well-founded fear. That is how the submission is put.

Unless there is anything more your Honours have about that, I will move on to the final point in relation to this matter which is in relation to the determination of whether or not he feared persecution for the purpose of the relevant statutory test and the argument is developed at paragraphs 27 to 31. The short point here is that the applicant claimed he feared persecution and that arose from, amongst other things, participation in a student demonstration. His participation had been accepted. The claim was essentially that the apprehended persecution was for a Convention reason, namely political opinion, participation in that demonstration.

Then the Tribunal considered whether or not the applicant's fear of persecution was well founded and the point that is complained of is that when you read the Tribunal's reasons on this point they confined their examination of whether he feared persecution solely to coercive forms of persecution and they did not turn their mind at all to whether or not the non-coercive forms of persecution which might reasonably be feared were, in fact, present.

There was only an inquiry into what the fate of the participants in the demonstrations were as far as them being detained, gaoled and other coercive forms of punishment. There was no inquiry at all into what might have happened to participants in the demonstrations short of those coercive forms of punishment but nonetheless persecution and the point is that the Tribunal should have, in order to satisfy itself that there was no well-founded fear of persecution, addressed the question of what other forms of persecution might have been suffered by those categories of people, but the involvement in the demonstration having been accepted, inquiry there.

So that, we would submit, is a failure to properly apply the test and, therefore, an error of law contrary to the relevant provisions of the Migration Act. I will not make any further submissions.

McHUGH J: Thank you, Mr Hemery. Yes, the Court need not hear you, Ms Price.

This application for special leave to appeal is 69 days out of time. Having regard to the fact that an appeal would have no real prospects of succeeding, the proper order is that the Court reject the application for an order that compliance with Order 69A rule 3 be dispensed with. Accordingly the application is dismissed.

MS PRICE: Your Honour, may I make an application for costs on behalf of the respondent?

McHUGH J: Yes. There is nothing you can say, Mr Hemery.

MR HEMERY: No, your Honour.

McHUGH J: No. The application is dismissed with costs.

The Court is indebted to you, Mr Hemery, for the assistance you have given us in these four matters which has greatly alleviated our burden in dealing with these matters. Thank you. Adjourn the Court.

AT 3.19 PM THE MATTER WAS CONCLUDED