WABK v MIMA P46/2002 [2002] HCATrans 534 (24 October 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P46 of 2002

B e t w e e n -

WABK

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 24 OCTOBER 2002, AT 2.09 PM

Copyright in the High Court of Australia

MR R.K. O'CONNOR, QC: If it please the Court, I appear for the applicant. (instructed by the applicant)

MR R.L. HOOKER: If it please the Court, I appear for the respondent. (instructed by the Australian Government Solicitor)

GLEESON CJ: Now, there is a question of evidence, is there, Mr O'Connor?

MR O'CONNOR: Yes, there is, your Honours, but in my respectful submission it is not a matter of new evidence. My learned friend was kind enough to write to me drawing my attention to Eastman's Case and contending that the tape and the transcript could not be put in because they were new evidence. My submission is that unlike the situation in Eastman this is not new evidence. In Eastman it was desired to put in 10 affidavits which went to the state of mind of Mr Eastman and - - -

GLEESON CJ: All you are seeking to do is prove the record of the proceedings before the Tribunal, is that right?

MR O'CONNOR: Yes, I am.

GLEESON CJ: You say you want to prove the record of the proceedings before the Tribunal?

MR O'CONNOR: Yes, that is the point I am coming to, your Honour. Yes, the words were said and this is just - there is a tape as to what was said and for convenience sake I have had that transcribed so that anyone can see what that tape says.

GLEESON CJ: Now, I have an impression, but I invite you to correct me if I am wrong, that your client turned up via a people smuggler with some kind of written instructions as to what he was supposed to say when he got here; is that right? They were the papers to which the Tribunal was referring.

MR O'CONNOR: That was the subject of discussion at the RRT and when you look at the transcript, with respect, it seems as though he gave a satisfactory explanation. He says that they related to someone else and he picked them up in error, and the Tribunal member did not take it any further once he gave that explanation. He just left it at that. That is one of grounds for complaint here, that things were never pursued, matters such as why he had considered he was persecuted or what he did in the Party and what the Party believed in.

He was asked, "Well, what are the principles of the Party?" and then one or two things would be said and the Tribunal member would simply say, "Anything else? Nothing further?", and just left it at that. Yet, when he came to write the reasons for decision the Tribunal member took matters a lot further and said, "Well, he didn't deal with this; he didn't deal with that", and there is the question asked as to whether it was a left wing or a right wing Party and the answer was, "Well, it is neither, really." Now, that was not pursued by the RRT, yet that was used against the applicant in the reasons for decision.

There are other matters as well. The principal one is the question asked as to how often this Pan Iranist Party met. Now, the applicant's case was heard at the same time as his cousin's, and the question was put to the two of them - they were separate hearings but the same day - but they were each asked how often a meeting is held and one answered in relation to the level of the Party to which he was a member and the other one answered to the level of which he was a member, and one was weekly and one was monthly, and there comes an answer at one stage, "Monthly" or "There were no meetings".

Now, with respect, I would have thought that the Tribunal would have pursued that because it would seem as though there was some confusion in the person answering the question, but that was not pursued, but it was taken up in the reasons for decision as evidencing inconsistency, but that was not put to the applicant, what answer had been given by his cousin. I notice in the transcript that the cousin was outside during the applicant's hearing. I presume it was the same when the cousin's hearing was being heard, that the applicant was outside. So he did not know what answer had been given. He did not realise the confusion, but the RRT just took the answers as they were given and then used it against them at the end.

Another matter where there was some confusion which is illuminated in the transcript, whether or not the applicant was a member of the Party, and in his initial interview he said that he first showed interest in 1996 but he did not become a member then because he thought it was - his uncle had said, "It would be better if you don't become a member. You just work for us." But he says in that same interview in 1999 he became much more active, and the letter from the Party headquarters in Holland refers to a start date - I think it is 15 July 1999 - and that is only talking about after he became active.

Now, the difference between 1996 and 1999 seems to have been overlooked by the Tribunal. He simply says he went into meticulous detail that he was not a member, yet here we have a letter saying he is. Well, as for meticulous detail, he merely made the statement. He says he went into meticulous detail in his initial interview. Well, the initial interview is in the reasons for decision of the RRT. So that is another area of confusion.

When you have a look at the whole 11 pages of the transcript and then read the reasons for decision, every statement made by the Tribunal is not backed up by the transcript, that is, matters have not been dealt with at all and he has made findings, or if they have been dealt with, they have not been pursued by the RRT. He did not give the applicant the opportunity to answer particular questions or to give further information where there was any doubt.

So I revert to the argument I made in the application two cases ago, where there has not been proper procedure and the Browne v Dunn principle should apply and the hearing should be fair and just and it should provide justice in the circumstances, and that has not taken place here. The hearing, when you take out the translation of everything from one language to the other, the questions and the answers, it is only 27 minutes and that just gives an indication as to how short it was.

GLEESON CJ: That is seven minutes longer than you get.

MR O'CONNOR: His whole future was depending on it. It just shows how abbreviated the hearing was. It is illuminating to read the transcript and to see there are two or three questions on a topic and then it is just dropped, yet there are adverse findings found against him. This man has not had a true hearing. He made this point at the Full Court and the Federal Court at first instance. He asked them, it seems, to have a listen to the tape - that is at application book 32, lines 10 and 17, and application book 34, lines 7 to 10 and perhaps 24 to 25, where he sets out in his application for special leave to appeal that he did ask them to have a listen to the tape. I say perhaps in relation to the last one when he says, "Why didn't the judge listen to me before he decided my case?" Now, I do not know when he uses "judge" whether he is referring to the RRT or whether he is referring to the true judges who did not listen to the tape.

I have spelled out in my supplementary supplement of argument all the many instances, a score or so of them, where the RRT has made a particular assertion in its reasons and there is no backing up of it at all from the transcript. I cannot take it any further than that, your Honours.

GLEESON CJ: Thank you, Mr O'Connor.

Although Mr O'Connor, QC, for whose assistance in this matter and other matters today we are indebted, has done his best by reference to the original record of the proceedings in the Tribunal to demonstrate procedural unfairness or absence of a proper hearing, ultimately we are compelled to the view that what is involved in this application is as was found in the Federal Court, an attempt to re-agitate the facts. No error has been shown in the decision of the Full Court of the Federal Court and there are insufficient prospects of success of an appeal to warrant a grant of special leave. The application is refused with costs.

AT 2.20 PM THE MATTER WAS CONCLUDED