Applicant P53/2002 [2003] HCATrans 271 (8 August 2003)

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Applicant P53/2002 [2003] HCATrans 271 (8 August 2003)

Last Updated: 18 August 2003

[2003] HCATrans 271

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P53 of 2002

B e t w e e n -

APPLICANT P53/2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 8 AUGUST 2003, AT 11.47 AM

Copyright in the High Court of Australia

MR M.D. HOWARD: 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: Yes, Mr Howard.

MR HOWARD: Your Honours, I hope that you have a summary of argument recently filed?

GUMMOW J: Yes, we do. We have a summary; I am not sure it is dated.

MR HOWARD: Down the very bottom, I think, 6 August, your Honour, on the first page.

GUMMOW J: Yes, thank you.

MR HOWARD: Your Honours, the Tribunal in this case found against the applicant on credibility and it did so on two limbs which have been called in the submissions and really dealt with by his Honour Justice French at first instance and by the Full Federal Court as - - -

GUMMOW J: Yes, his Honour Justice French gave a very detailed consideration of this. It is the crucial passage at page 52 line 25, where his Honour speaks of parallel links. His Honour was not all that happy about it, but he speaks there of parallel links.

MR HOWARD: Yes, your Honour. Can I perhaps explain how the matter - the applicant was not represented at first instance. His Honour dealt with the inconsistencies and expressed that he was uncomfortable perhaps with the inconsistencies supposedly found. When the matter got to the Full Federal Court, the Full Federal Court did not really want to hear about the inconsistencies, and the debated focused on whether the implausibilities provided the parallel links that his Honour Justice French had identified. So that it is put in the outline, your Honours, that the only really fair way to approach this is to put the inconsistencies to one side and to examine whether the implausibilities in fact existed or whether it was open as a matter of fact to find that they existed. If they did not, then it is submitted that the matter is able to be reviewed pursuant to the old sections 476(1)(g) and 476(4)(b).

So that his Honour Justice French, with respect, considered the inconsistencies and, as your Honour Justice Gummow noted, he colloquially was none too pleased about them, but the parallel links that were debated in the Full Federal Court were all about the implausibilities. Your Honours will note that even in the Full Federal Court there was not much consideration given to the implausibilities themselves. The reason for that is that the Full Federal Court found - and this appears at application book page 65 - - -

GUMMOW J: Now, you appeared in the Full Court, I see.

MR HOWARD: Yes I did, your Honour.

GUMMOW J: But not before Justice French.

MR HOWARD: No, your Honour. In fact, I was unaware that the applicant was an applicant before this Court until quite recently when the Registry contacted me.

GUMMOW J: Yes.

MR HOWARD: But your Honours will see that the way the Full Federal Court dealt with it was to say - without getting into a consideration of the implausibilities, at paragraph 16 at about line 20 the Full Federal Court really deals with it this way, which is to say that the “facts” in the implausibilities alleged to be non-existent are not actually facts.

GUMMOW J: I am sorry, which page are you reading from, Mr Howard?

MR HOWARD: Page 65.

GUMMOW J: Paragraph 16?

MR HOWARD: Yes. And this would explain, your Honours, why the Full Federal Court did not get into the question of whether the implausibilities really existed or not because the Full Federal Court said that in any event what is being put is not facts within section 476(4)(b).

GUMMOW J: We have been looking at (4)(b) earlier this morning, as you know.

MR HOWARD: Yes, your Honour. The special leave question that the applicant posits is this, that a finding of implausibility necessarily involves a comparison between one factual matter and another factual matter. Now, it happens in a domestic Tribunal or a decision-maker or court all the time because there is a common pool of experiences available to an Australian judge or an Australian decision-maker; that is, that certain things are within the ordinary human experience or they are not. That forms one limb of whether a matter is implausible or not.

What has happened here in respect of the six matters which the Tribunal found to be implausible is that the Tribunal has, without any fact, we submit, made a finding that certain things were implausible or unlikely to have occurred in Iran and Afghanistan in around about 1988. Now, the proposition is this, that there was no country information which was available to the Tribunal to weigh in the balance against what the applicant said. So the applicant gives evidence and the Tribunal says, “I find that to be implausible.” That necessarily, in our submission, involves a comparison between one state of facts and another state of facts. We say, your Honours, that that question has not been determined in this Court and, in our submission, with the exception of the decision of the Full Court below, it has been left open by a number of other courts. For example, his Honour Justice French in this case expressly left open the question of whether such matters could be reviewed on the basis of there being no evidence. In our submission - - -

GUMMOW J: What is the relevant passage in Justice French?

MR HOWARD: If I can take your Honours to page 52 of the application book, at the top of the page – I am sorry, your Honours – it starts at the foot of 51 to the effect that if the inconsistencies were not inconsistencies:

then it might be argued the Tribunal had based its decision on particular facts, namely the existence of inconsistencies in material before it, which did not exist. Such a finding, might in context, support a conclusion that there was no evidence before the Tribunal to justify its decision in the sense contemplated by s 476(1)(g) of the Act.

GUMMOW J: Yes, all that led up to what we were looking at before at line 25.

MR HOWARD: Yes, your Honour, I accept that, but his Honour left open the question of law and, indeed, it was left open by his Honour Chief Justice Mason in the Bond Case in the passage that I have referred to in the outline. Nothing in the recent decision of this Court in Rajamanikkam, there was nothing in that decision that determined the question because it went off on a different basis, even though there was some detailed consideration given to the interplay between (1)(g) and (4)(b).

But the proposition we put, your Honours, is that the Tribunal, his Honour Justice French and the Full Federal Court did not ever get to the question of the implausibilities because certainly in the case of the Full Federal Court, the view was taken that they could not be facts within the
meaning of (4)(b). We say as a matter of law that is an open question and it ought to have been considered by both his Honour Justice French and by the Full Federal Court.

GUMMOW J: Thank you.

MR HOWARD: Thank you, your Honours.

GUMMOW J: We do not need to call on you, Mr Macliver

Despite the attractive way in which the applicant’s case has been argued before us by Mr Howard, we are not satisfied that this is a case for the grant of special leave. In particular, we are not satisfied that this is an appropriate case to consider any questions of construction concerning section 476 of the Migration Act 1958 (Cth) to which Mr Howard has referred.

The Court has said many times that in discharging the duty of judicial review of decisions of the Refugee Review Tribunal the Federal Court is not to engage in an overly fastidious examination of the reasons for the Tribunal. It must not comb through those reasons vigilant for the detection of error: see Minister for Immigration and Ethnic Affairs v Wu [1996] HCA 6; (1996) 185 CLR 259 at 272 to 291.

Justice French, the primary judge in this case, was of course well aware of and applied that reasoning. On this footing, we are not convinced that there are reasonable prospects of success were special leave to be granted. Essentially, the case involved contested questions of fact that were decided by the Tribunal against the applicant. Accordingly, special leave is refused with costs.

The Court will adjourn to reconstitute.

AT 11.59 AM THE MATTER WAS CONCLUDED