WACW v MIMA [2003] HCATrans 270 (8 August 2003)

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WACW v MIMA [2003] HCATrans 270 (8 August 2003)

Last Updated: 18 August 2003

[2003] HCATrans 270

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P56 of 2002

B e t w e e n -

WACW

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 11.38 AM

Copyright in the High Court of Australia

MR G.M.G. McINTYRE, SC: Your Honours, I appear for the applicant in this matter. (instructed by the applicant)

MR P.R. MACLIVER: Your Honours, I appear for the respondent. (instructed by Australian Government Solicitor)

GUMMOW J: Yes, Mr McIntyre.

MR McINTYRE: Yes, there is an outline of argument before your Honours. In this case the main issue for the applicant coming within the Convention is that he yelled angry criticism of the regime and its clerical leadership for theft and corruption and the treatment of the people of Iran. That was identified by Justice Carr in his reasons as coming from the evidence, although not something which was particularly focused upon, that particular piece of evidence in the reasons of the Tribunal.

What is argued for the applicants in this case is that the Tribunal has drawn a distinction between corruption and politics, or his criticism of the corruption of the regime and the question of his political opinion. They do that in the application book at page 15 lines 10 to 15, where they say in the second sentence of that paragraph:

He did not argue in any satisfactory detail that they retaliated against him for reasons of “political opinion”. He seemed to think it was enough merely to draw a long bow between the existence of the foundation and the regime that allowed it to operate. Leaving all issues of consistency and credibility aside, this seemed to be a problem for the Applicant’s application as a whole, for it meant that his case was about exposure of corruption not politics.

The point we make is that that distinction is not a distinction which can be made if the test is being properly applied, if the Refugee Convention is being properly applied, that if he has an opinion about the corruption of the regime then he does in fact have a political opinion and that was one which he was expressing and the Tribunal have set themselves off on the wrong foot by distinguishing between those two things and concluding that an expression of opinion about corruption of a regime cannot be an expression of a political opinion.

The Tribunal accepts that if the applicant’s opponents wanted to punish him physically and individually for accusing them of fraud, that that was what was occurring. They do not seem to regard that as persecution within the Convention. Their initial error which I have pointed out suggests that it is persecution within the Convention. It is persecution for expressing that political opinion about the corruption of the regime.

HEYDON J: Did the Tribunal not reject the factual basis of your present submission?

MR McINTYRE: Yes, they did, and that is what I am coming to. At paragraphs 5 and 6 I seek to deal with that. What they did is deal with the first issue in the abstract and we say got it wrong in the abstract. They then went on and the Federal Court at both levels noted that, that they had nevertheless found that the yelling of criticisms did not occur as a matter of fact. What we say about that is that the way in which they have reached that conclusion is on a speculative basis, that they had no evidence against which to weigh what he asserted in his evidence had occurred and they merely decided out of thin air that that was not the case and that the opposite was in fact the case.

HEYDON J: But to start with, it was a very late story or a very late account. It was not advanced at the early stages of the applicant’s arrival in Australia.

MR McINTYRE: That is right.

HEYDON J: That is some reason for rejecting it.

MR McINTYRE: Yes, they base it on inconsistency between his earlier version and his later version, that is so, and he seeks to explain that. But we say that to remove it from the notion of speculation there needs to be some evidence which controverts it. We say there was no evidence which controverts it and ultimately at paragraph 6 in the outline of submissions we say that they have leapt to the conclusion of fabrication of the later claims and imputed to him a motive of fear that his entry will be the subject of a deportation and we say that that is a speculative conclusion. Those are the submissions, your Honours.

GUMMOW J: Yes, thank you very much, Mr McIntyre. We do not need to call on you, Mr MacLiver.

The Full Court of the Federal Court of Australia correctly concluded in this case that there was no error of law or jurisdictional error demonstrated in the decision appealed from. The case involves no more than an attempt to re-argue the merits of the decision of the Refugee Review Tribunal. This failed at both levels in the Federal Court and is something not allowed for under the guise of judicial review. Accordingly, special leave is refused with costs.

Before we adjourn to reconstitute, I should indicate on behalf of the three members of the Court our deep indebtedness to counsel who have appeared this morning to assist these people who otherwise would not have a voice which could articulate in proper legal form their cases as they can best be put on their behalf. The Court is indebted to counsel. We will adjourn to reconstitute.

AT 11.45 AM THE MATTER WAS CONCLUDED