WABU v MIMA [2003] HCATrans 439 (24 October 2003)

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WABU v MIMA [2003] HCATrans 439 (24 October 2003)

Last Updated: 6 November 2003

[2003] HCATrans 439

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P70 of 2002

B e t w e e n -

WABU

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 24 OCTOBER 2003, AT 11.12 AM

Copyright in the High Court of Australia

MR G.M.G. McINTYRE, SC: Your Honour, I will be seeking leave to appear amicus curiae, for reasons which I will explain briefly. (instructed by the applicant)

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

McHUGH J: Yes. We will hear you as amicus curiae, Mr McIntyre.

MR McINTYRE: Thank you, your Honour. What I propose to suggest in the submissions is that the Court consider whether or not, in the circumstances which I will outline, this matter ought to be adjourned. The circumstances are that this was a matter which was referred to me by the Deputy Registrar of the Court and I sought to obtain some instructions from the applicant. I was informed through the agency of the Australian Government Solicitor that he had escaped from the detention which he was then in. At the time he was at Glenside Psychiatric Hospital, having previously been at the Baxter Detention Centre.

Shortly after that I was contacted by a solicitor, Ms Deslie Billich who is a solicitor at the South Australian Refugee Advocacy Service, and she indicated to me that she had been given instructions by this person as late as 11 August to act in this application, but then she was informed shortly after that that he had escaped from this detention. Now, prior to all of that I had had a look at the papers and it appears to me that there is an arguable case of a denial of natural justice arising out of the way in which Justice Carr at first instance has dealt with the matter.

I am also informed by Ms Billich that shortly after she had heard that he had escaped she has become aware that the Canadian Government has granted this person asylum. Now, that may of course be jeopardised by his conduct, depending upon his mental state at the time of the conduct, which we do not know about at the present time. It seems to me that in all of those circumstances it is perhaps a matter which - - -

McHUGH J: What is the denial of natural justice? There is no argument about natural justice in the Full Court.

MR McINTYRE: No, there was not, your Honour. It is really a matter which emerges from my reading of the way in which Justice Carr has dealt with the matter. If you start at page 20 of the application book, about line 23, Justice Carr introduces the fact that at the hearing before him “the applicant produced a letter which he said was from his mother in Iran” and sought to tender it, as he says in the next paragraph. The hearing was adjourned. If you go over to page 21 at the top, the second paragraph:

At the resumed hearing on 30 October 2001 the respondent raised no objection to the Letter being received into evidence in the application.

Then at the bottom of page 21, about line 35, Justice Carr indicates:

the Tribunal’s findings that the applicant’s father had not been harassed since the applicant left Iran and that he had not, after being taken away from the Iranian authorities, disappeared played such a part in the process of its reasoning that, had it found otherwise, the Tribunal would not have reached the conclusion which it did.

So he has said this piece of evidence which he has now received without objection has become crucial to the decision of the Tribunal. Then he goes on to deal with it over the next page and quotes part of it and essentially finds that there is a conflict between what is in the letter and what the applicant has said about when it was that he informed his mother - sorry, when his mother informed him that his father had disappeared. So in the letter she has, as Justice Carr indicates at page 23 at about line 20:

I think that a reasonable inference is that the applicant asked his mother to provide something in writing to the effect that his father had been arrested. I make that inference. However, the applicant’s mother appears not to have been aware that the applicant had told the Tribunal that she had already told him, as early as before 12 January 2001, about the arrest of his father. If that were true, then she would not have been likely to use the language set out at paragraph 22 above. I do not think that I can safely rely on the contents of the Letter being true.

Now, what his Honour Justice Carr has effectively done is to conclude that the letter by the mother is a fabrication because of the inconsistency which he concludes can be deduced from the content of the letter from the mother and what the applicant has said prior to this letter being written. That all appears to have occurred in circumstances where this applicant has had no warning that his Honour Justice Carr was going to treat that matter in that way and give him some opportunity to provide some explanation as to how it may have been that his mother may have couched the letter in the terms in which she did. We would say that that is a classic case of denial of natural justice.

McHUGH J: Well, yes, but the judge might be regarded as being rather sympathetic in even allowing the letter to come into evidence in the first place. The Full Court said it really had nothing to do with the case, that the
“no evidence” ground had not been made out, that the Tribunal determined on credibility grounds.

MR McINTYRE: Our point of course is that Justice Carr seemed to think it was crucial. We would suggest that it does seem to be crucial. It is quite an important matter, the issue of his father’s return, and it is a credibility issue. This was corroborative evidence in relation to his credibility and the trial judge has - - -

McHUGH J: Yes, but that does not mean it goes to the “no evidence” point. The Tribunal’s decision turned on a particular fact on which there was no evidence to support. I mean, it is very difficult to see what relevance the letter had in any event in the case. It is certainly taking a very liberal view of the issues in the case for Justice Carr to even allow the evidence to be tendered.

MR McINTYRE: Very well. If that is the view your Honour takes, I do not wish to add to those submissions.

McHUGH J: Yes. What do you say about this matter, Mr Macliver?

MR MACLIVER: Your Honour, we would oppose the matter being adjourned. The application has been on foot for some time. It was the applicant’s decision to remove himself from detention. We do not see that there is any basis for the matter to be adjourned. As to the merits of the application, we say there is no appellable error in the Full Court’s reasons for judgment and that the application should be dismissed with costs in the usual way.

McHUGH J: Yes, thank you. Thank you for your assistance, Mr McIntyre.

The Court has before it an application for special leave to appeal which fails to identify any grounds that would warrant the granting of special leave to appeal. It was obviously prepared by the applicant or somebody on his behalf without any real legal knowledge, or perhaps any legal knowledge, and in those circumstances, not unnaturally, fails to refer to any matter that would warrant the grant of special leave to appeal.

This morning Mr McIntyre of senior counsel has been given leave to appear as a friend of the Court to ask that the matter be adjourned. Mr McIntyre has informed us that he thought there was an arguable case that there had been a denial of natural justice by the primary judge in this case. It can be said at once that no such suggestion was made when the matter was before the Full Court, and in our view the alleged denial of natural justice concerns a matter which, even if established, did not establish the no evidence ground upon which the primary judge allowed the matter to be raised before him. The Full Court took the view that the Tribunal’s decision was based on credibility grounds and that there was no case made out for reviewing the decision of the Tribunal on the ground specified in section 476(1)(g).

In the circumstances we do not think that an adjournment should be granted. The matter has been before the Court for a considerable period of time. On the face of it, it seems to have no reasonable prospects of success. Accordingly, the application for adjournment is refused and the application itself is refused with costs.

AT 11.24 AM THE MATTER WAS CONCLUDED