WADT v MIMA [2003] HCATrans 267 (8 August 2003)

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WADT v MIMA [2003] HCATrans 267 (8 August 2003)

Last Updated: 18 August 2003

[2003] HCATrans 267

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P51 of 2002

B e t w e e n -

WADT

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 8 AUGUST 2003, AT 10.48 AM

Copyright in the High Court of Australia

MR J.L. CAMERON: May it please the Court, I appear for the applicant. (instructed by the applicant)

MR P.R. MACLIVER: May it please the Court, I appear for the respondent. (instructed by Australian Government Solicitor)

GUMMOW J: We would be assisted if we heard in the first instance from Mr Macliver.

MR MACLIVER: Thank you, your Honours.

GUMMOW J: Mr Macliver, the reason why we have called upon you first is our response to the submissions made in the applicant’s written summary, paragraph 7 and following.

MR MACLIVER: Yes.

GUMMOW J: That is to say, there was a failure, it is said, to put to the applicant any other possible reasons or processes by which he had contracted this disease.

MR MACLIVER: Yes, your Honour.

GUMMOW J: They seem to have been excluded as possibilities without any exploration of the subject.

MR MACLIVER: Well, the applicant in his summary has said that the Tribunal has breached section 424A of the Act in not raising this matter with the applicant.

GUMMOW J: Yes. It does seem to be a pretty critical point in the Tribunal’s reasoning, does it not?

KIRBY J: The Tribunal did not believe that the applicant was homosexual and a critical point in that seems to have been its theory that his HIV status, which I take it is not in dispute - - -

MR MACLIVER: No.

KIRBY J: - - - was acquired by drug use as distinct from - - -

GUMMOW J: Or transfusion.

KIRBY J: - - - or operative transfusion or something else, as distinct from sexual activity, and that really was not put to the applicant, was it?

MR MACLIVER: No, your Honour. It is certainly conceded that that was not put to the applicant. However, we would submit that there was no obligation under section 424A to put that matter to the applicant. Section 424A in the former Part 8 of the Migration Act said in subsection (1):

Subject to subsection (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision -

Your Honours, we say that the fact that the Tribunal did not indicate to the applicant that it was going to make a finding that his HIV status was not due to his alleged homosexuality but was for some other reason was not in breach of section 242A for two reasons.

Firstly, your Honours, we would submit that the fact that the Tribunal concluded as it did - and the relevant passage is at page 16 in the application book, your Honours. The relevant passage is the first full paragraph at about line 7 where the Tribunal concluded:

As I do not accept the applicant as a witness of truth I am not satisfied that the applicant is a homosexual, despite his HIV positive status. HIV positive status can be obtained not only by male homosexual activity but various other reasons, including drug use.

The Tribunal then of course went on to say that it accepted that that was the applicant’s status. Now, your Honours, we would submit that - - -

KIRBY J: Was there any evidence of drug use on the part of the applicant?

MR MACLIVER: No, there was not, your Honour. In fact, I think there is a passage in there where the Tribunal notes that the applicant asserted that he - my learned friend says page 7, line 15. The Tribunal notes there that the applicant told the Tribunal he found out in Australia that he was HIV positive and that he stated that that was from homosexual activity, and he stated to the Tribunal that he had no blood transfusions or intravenous drug use; two of the other methods by which HIV status can be acquired.

KIRBY J: Of course, his HIV status does not establish his sexuality because in many countries HIV is associated with sexual activity of heterosexual as well as homosexual kind.

MR MACLIVER: That is right, your Honour.

KIRBY J: But it is consistent with it, and the drug use was not something which was in evidence. It just seems to be that here is a factor which was objectively established, it was objectively consistent, and yet the Tribunal dismissed it. The reason the Tribunal appears to have disbelieved him in his assertion of his sexuality was because he did not raise it immediately he arrived, but there might be a lot of reasons why a person from Iran would not raise their sexual orientation when they arrived in Australia. It is not the sort of thing that everybody wants to say a lot about, especially if they come from a traditional society like Iran where it can be the subject of very severe punishment including death.

MR MACLIVER: Yes. Your Honour, I accept that but nevertheless would submit that 424A was not breached by the Tribunal. The first basis upon which I would submit to your Honours that that is so is that section 424A(1) places an obligation on the Tribunal to give particulars of any information that it:

considers would be the reason, or a part of the reason, for affirming the decision –

Your Honours, there was no, we would say, information that was required to be provided to the applicant. The fact that the Tribunal did not accept his claim that his HIV status was as a result of his homosexual activity we say is not information that was required to be provided to him under that section. Rather, we would submit the Tribunal concluded that it did not accept his claim that his HIV status was due to his alleged homosexual activity and it reached that conclusion because it did not accept the applicant as a witness of truth and for that reason was not satisfied that he was a homosexual.

We say that is all part of the reasoning process of this Tribunal and does not constitute information. A Tribunal is not required under that section or, we would submit, otherwise to advise an applicant that it does not accept a claim which he or she puts forward or does not accept some supporting document or some supporting corroborate testimony.

GUMMOW J: On the version of the Act we have to deal with - which is Reprint No 7, is it?

MR MACLIVER: It is, your Honour, yes.

GUMMOW J: In reprint No 7 where is the exclusion of procedural fairness as a ground of review? It is excluded, is it not?

MR MACLIVER: I think it is 476(2), your Honour.

GUMMOW J: That is right.

MR MACLIVER: Section 476(2)(a).

GUMMOW J: That is why your opponent tries to get himself within 476(1)(a) by route of 424A.

MR MACLIVER: Yes.

HEYDON J: There seems to me one argument. Whether it fits within the Act or not I am not sure but it may have to be dealt with. The Tribunal could have set out all the material on page 15 and for that reason have rejected the applicant’s account and considered that the lies were so extreme as to lead to a finding of the contradictory, as it were, of what the applicant was asserting and therefore to conclude that he was not a homosexual.

MR MACLIVER: Yes.

HEYDON J: If that had been done, one might agree or disagree with the approach but it would have been evidence on which the conclusion could have been arrived at, but she went further and seemed to have given a second reason, namely, that HIV positive status can be caused by drug use and in other ways. Is there any evidence at all for drug use, taking blood transfusions in hospitals, heterosexual activity, being a dentist’s assistant or any of the many ways in which HIV status can come to pass? In other words, it may be that one limb of the reasoning is not supported by any evidence at all. Under reprint No 7 is no evidence a ground for review, a ground for appellate success?

MR MACLIVER: No evidence, yes, was one of the grounds of review under section 476. I think 476(1)(g) in combination with 476(4) - - -

HEYDON J: Is it not the case that there is no evidence for one of the two limbs that supports the conclusion? The question would then be whether the other limb alone is sufficient or whether the Tribunal regarded the other limb alone as being sufficient.

MR MACLIVER: Your Honours, the “no evidence” ground does require either that 476(4)(a) or (b) be established. That, as I understand it, was the effect of the decision of this Court in Rajamanikkam.

HEYDON J: You say the law did not require any particular matter to be established? The law did not require anything to be established?

MR MACLIVER: No. So, paragraph (a) would have no application.

HEYDON J: Yes. The question is whether the decision was based on the existence of a particular fact.

MR MACLIVER: And that fact did not exist.

HEYDON J: On one view it is based on the disease being acquired by drug taking or possibly some other cause.

MR MACLIVER: Yes. Assuming that that is so – we do not necessarily concede that it is but even assuming that that was the case - the applicant has the burden of showing that in fact that fact did not exist and certainly there is no evidence or material before - - -

HEYDON J: No evidence cuts both ways.

MR MACLIVER: Yes, it cuts both ways.

HEYDON J: Insofar as it cuts against you it cuts against the applicant worse, that is what you put, is it?

MR MACLIVER: That is right, your Honour. The second point that we would make both in relation to 424A itself and to the no evidence ground under 476(4)(b) is that the decision was not based upon the fact, as found by the Tribunal, that the applicant was not a homosexual. The Tribunal went on in effect to consider: what if I am wrong? What in fact would be the position if I was wrong and that the applicant was a homosexual? That appears, your Honours, from the bottom of page 16 in the application book at about line 28, where the Tribunal said:

Even if I were to accept that the applicant was homosexual, as he claims, I have considered whether he would have a well-founded fear of being persecuted by reason of his homosexuality if he returns to Iran.

Then the Tribunal went on to deal with that at some length at pages 17 and 18 of the application book and ultimately reached the conclusion at about line 23:

Even if I were to accept that the applicant is a homosexual, as he claims, I would not accept, having regard to all of the evidence before me, that the applicant has a well-founded fear of being persecuted by reason of his homosexuality if he returns to Iran now or in the reasonably foreseeable future.

Then it went on to consider a claim about an illegal passport.

Your Honours, we would submit that that is a second reason why the “no evidence” ground under section 476(4) could not succeed because the Tribunal alternatively dealt with the claim. Equally, we would say that that means that if, contrary to my earlier submissions, there was in fact a breach of section 424A, that it was not in the circumstances a material breach and should not warrant the grant of special leave in this matter because the Tribunal nevertheless went on to consider whether the applicant had a well-founded fear of persecution if in fact he was a homosexual, contrary to the Tribunal’s finding. Your Honours, unless you wish me to address you on the main - - -

GUMMOW J: What would the position be if natural justice, denial of procedural fairness, were available as a ground? I am thinking about section 75(v) of the Constitution obviously.

MR MACLIVER: Yes.

GUMMOW J: What would be the significance then, would you say, of the “even if” reasoning at page 16, line 30? In other words, take the hypothesis that natural justice was available and had been denied in respect of the drug use question. What then would we do if we were seized of that on that basis in the light of page 16, lines 30 and following? Would that meet a natural justice complaint?

MR MACLIVER: It would mean, in my respectful submission, your Honours, that the Court would not make any orders for the constitutional writs pursuant to section 75(v) of the Constitution because, even if your Honours were to hold that there had been a breach of natural justice, it would not be a breach which ultimately affected the Tribunal’s decision because it did go on to consider what would be the position and whether the applicant would have a well-founded fear of persecution if he was a homosexual contrary to its earlier finding.

GUMMOW J: Thank you.

MR MACLIVER: If it please your Honours.

GUMMOW J: Yes, Mr Cameron.

MR CAMERON: May it please the Court. The application is based on two bases. The first is that if there was information, and there appears to be none in the appeal books, that the applicant’s HIV status was acquired from some other source than the homosexual activity that he admitted - - -

GUMMOW J: We understand all that, Mr Cameron. What is your response to the last matter we were taking up with Mr Macliver?

MR CAMERON: My response to the last matter, your Honour, would be - - -

GUMMOW J: The page 16, line 30 point.

MR CAMERON: Yes. While the Tribunal took into consideration the unlikelihood that the applicant if returned to Iran would be subject to persecution by the State, she did not take into consideration the Khawar situation where he would not be protected by the State from incidents of gay bashing, if I can put it that way, to which he had already referred in his evidence. He referred to the fact that he had been stoned by neighbours, he referred to the fact that he had been beaten up by his father and had suffered some kind of head injury. Now, those are matters of the Khawar-type persecution which were not considered by the Tribunal at all. In my submission, that would be a basis on which the Court could still grant relief under section 75(v).

KIRBY J: Well, we do not have that of course before us at the moment. We are still in the appellate process.

MR CAMERON: That is right. But if I could perhaps correct, with respect, an observation which your Honour Justice Kirby made. The basis upon which the Tribunal disbelieved the applicant was not in fact that he had not raised his homosexuality at first instance. She disbelieved him primarily on the basis of a conflict between the evidence which he gave and the evidence which was given by his brother of an incident involving them both and two other men.

Now, the Tribunal found - and it really goes to the merits and I do not really quarrel with that - that it was a difference in recollection as to the colour of the underwear and the names of the two persons involved which indicated that that was a fabrication. Now, one might well take the view that where there are inconsistencies in accounts given by two persons which took place nine months before, that might just be as consistent with a truthful account as with an inconsistent account. But that was essentially the basis upon which she disbelieved the applicant.

KIRBY J: Well, let that be so. That is still something which does not appear to be an error, taking the Tribunal outside its jurisdiction.

MR CAMERON: No, it does not, your Honour. But what she then did not do was consider the more general question which supported his homosexuality and the evidence of his homosexuality such as the incidents in which he had been stoned by the neighbours and beaten up by his father. The question of the incident on which he was disbelieved was important, it appears, to the Tribunal and possibly also to the applicant because it was that incident which precipitated the departure of the applicant and his brother to Australia. Less attention appears to - - -

KIRBY J: Now, under what provision of the Act as it then stood did you have an appealable ground on that footing, of the Tribunal’s reasoning? That is what you are really criticising, the way the Tribunal reasoned to its conclusion that he was lying when he said he was homosexual.

GUMMOW J: Section 424A does not seem a great deal of help to you.

MR CAMERON: Well, 424A, with respect, if it was proposed to find - - -

GUMMOW J: It is the word “information” that the Tribunal considers, et cetera.

MR CAMERON: I put it on an alternative basis. Either there was information of some activity which could have led to his HIV status and his denied intravenous drug use or blood transfusions, at application book pages 7, 15 and 20, either there was such information and it should have been put or there was no information and there was no fact and the decision is based on fact which does not in fact exist. But the applicant cannot be required to prove a negative.

GUMMOW J: But wait a minute.

MR CAMERON: In other words, he cannot - - -

GUMMOW J: Just a moment.

MR CAMERON: - - -be required to prove that his HIV status was not acquired by bisexuality or was not acquired by intravenous drug use. All he can do is deny it.

GUMMOW J: I know, but how do you get over 476(4) on the evidence ground?

MR CAMERON: It is not made out because, in my submission, it comes under section 476(4)(b), that:

the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist –

in other words, based it on the existence of a fact that he had acquired his HIV status through something other than his claimed homosexuality.

GUMMOW J: And how do we know the fact did not exist?

MR CAMERON: In a sense, we can only go on the evidence which was before the Tribunal which is of his own denial. As I submit, he cannot prove the negative. He cannot prove that it was not acquired by some means other than the basis upon which he admitted or claimed to have acquired, in other words, unsafe sex, in the military and also over an extensive period after his childhood. I do not believe I can take that point any further.

GUMMOW J: Thank you.

MR CAMERON: Unless your Honours have any questions, those are my submissions.

GUMMOW J: Yes, thank you, Mr Cameron. We will take a short adjournment.

AT 11.13 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.19 AM:

GUMMOW J: In the course of the hearing of the leave application it has become apparent that there may have been – and I put it no higher than that – grounds for a complaint of denial of procedural fairness, but that the structure of Reprint No 7 of the Migration Act 1958 is such that that would not have been an available ground in the Federal Court.

What we are minded to do, Dr Cameron, is to stand over the present leave application to allow such time – perhaps a fortnight – as may be required to take such steps as the applicant wishes to take to approach one of us for relief under section 75(v) of the Constitution. It might then be the appropriate step for that Justice to refer also the still pending leave application into the Full Court together with any application under 75(v). Do you follow what is being indicated?

MR CAMERON: I do, your Honour.

GUMMOW J: If you were to move, on being so advised, you should move within the next fortnight or so. This matter should not drag on. If the Justice were minded to refer the 75 application and the pending special leave application into the Full Court, that would be heard in the Perth sittings in October, hence the need for some speed. All questions of costs we can reserve.

MR CAMERON: May it please the Court.

GUMMOW J: There is a further incentive. We should add an order today that if the application indicated is not instituted on or before 29 August, the special leave application will stand dismissed with costs. Is that clear also, Mr Macliver?

MR MACLIVER: It is, your Honour, yes.

GUMMOW J: Thank you.

AT 11.23 AM THE MATTER WAS CONCLUDED