WADC v MIMIA [2004] HCATrans 110 (2 April 2004)

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WADC v MIMIA [2004] HCATrans 110 (2 April 2004)

Last Updated: 8 April 2004

[2004] HCATrans 110

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P111 of 2002

B e t w e e n -

WADC

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 2 APRIL 2004, AT 12.56 PM

Copyright in the High Court of Australia

MR G.M.G. McINTYRE, SC: If the Court please, I appear on behalf of the applicant. (instructed by the applicant)

MR M.T. RITTER: If it please the Court, I appear on behalf of the respondent. (instructed by Australian Government Solicitor)

KIRBY J: Yes, Mr McIntyre.

MR McINTYRE: Your Honours, I have the benefit of a copy of a brief outline of argument from the applicant which sets out essentially what I propose to argue today. Of course, the notice of appeal in itself does not reveal a great deal by way of grounds for the Court to consider special leave. Our learned friends have assisted me and, hopefully the Court, with a copy of the case of Applicant S154/2002 which provides a useful backdrop upon which to elaborate on this argument. Essentially, we put the argument that there was something in what the Full Federal Court said at page 43 of the application book, at about line 10, where they drew attention to the allegations about the Tribunal which had the theme that the applicant:

had sought to bring forward extrinsic material of expressed importance and the Tribunal had said that it either did not want, or did not need, to look at such material.

What we focused on is one element of that material. There were a number of matters alluded to by the applicant in his evidence before the Tribunal, but what we draw attention to is seen at page 49 of the application book, at about line 25. Perhaps it starts earlier than that at line 15 where the applicant refers to having been involved in filming a student demonstration in which his brother was involved.

The case is to be largely decided by the Tribunal on the basis that the brother’s involvement in political activity and its conclusion that he was not involved in political activity and that the events which the applicant referred to in his oral evidence to support his brother’s involvement and his indirect involvement in the political activity has been false, the Tribunal concluded that they were false. The applicant gave direct evidence of it which is reproduced by the Full Court at page 49 and the passage which they have reproduced in bold is the crucial one. The Tribunal asked how the applicant was involved indirectly. He said:

I was filming this process . . .

Ms Smidt: But what did you do with the films that you took?

Interpreter: I have kept them in safe place . . .

If you really need, I could ask from John and it was possible I could show them to you.

Ms Smidt: No, that’s not going to be necessary -

Now, what we say there is that effectively the applicant was indicating the existence of evidence which would support his case and, in an indirect sense, seeking a ruling on whether that evidence was material which the Tribunal regarded as relevant. We say that there is effectively a ruling that the evidence was not relevant and not required to be brought forward.

HAYNE J: Now, the Full Court’s disposition of this aspect of the matter seems to be encapsulated at the foot of page 49 in paragraph 34 where they say:

did offer the tape but not in such a manner as to indicate -

et cetera. The point that troubles me, Mr McIntyre, about this is that that statement of the Full Court seems founded on them listening to the tapes, examining the transcript and spending, apparently, a considerable amount of time examining what they understood - see page 43, paragraph 26 - to be serious allegations by the present applicant.

Now, can I tell you where that leads me so that you may deal with it directly. It seems to me your case is one of want of procedural fairness. It seems that the case is one where the want of procedural fairness alleged depends critically upon the particular course of events at the hearing and step 3, which is the trouble, is that the Full Court look at it very carefully and very elaborately. Why should we go behind that is where I am at?

MR McINTYRE: Yes, thank you, your Honour. The reason that I argued that we should is that they have looked at it very carefully, certainly, but they have then reached a conclusion that there was some onus upon the applicant to emphasise the matter further. We say that that is just a misconstruction of what they reproduce as having happened towards the bottom of page 49. Once the applicant made the offer and was stopped in his tracks, it is not a correct conclusion to say that he could have and should have emphasised the matter further. That is essentially what it amounts to.

Certainly the court at the level below this has looked at the matter carefully, but we say nevertheless has fallen into the error of not recognising that that event by itself was sufficient to deny the natural justice which ought to be accorded to this applicant. If that had not been said, perhaps he may have gone on and emphasised it further, perhaps he may have seen the opening. We say that what the Tribunal did there was so conclusively to chop him off that the opening no longer remained there for him to see that he ought to be re-emphasising this matter.

Indeed, what we suggest is that he may have well come to the conclusion, “Well, the Tribunal is with me on the point that I have made in my oral evidence. Therefore, I need to go no further”. That is the point that is made in the S154 Case. We do not go so far as to argue that Browne v Dunn applies and so forth, but we say, that as a matter of procedural fairness, that is the crucial passage - - -

KIRBY J: But have not the courts said over and over again, including this Court, and I am thinking of Stead’s Case, that you do not just look at the isolated conduct. You have to look at how it appears in the full context of the circumstances in which the conduct, said to be the departure from the rules of procedural fairness, appear. That is apparently what the Full Court did and having done that they expressed the conclusion at the foot of page 49.

MR McINTYRE: Yes.

KIRBY J: Now, in the face of that and given that we cannot receive any fresh evidence or additional evidence, how could we reach a different conclusion in the circumstances of this case? What would be the foundation for our doing so, except to do what you say, which is to look at the face of the transcript repeated at page 49 to say, well that is it. Do not worry about the whole of the presentation of the case; just have a look at those words taken in isolation. That is not the correct way to approach natural justice points.

MR McINTYRE: Yes, I accept that, your Honour. What I do say is that what you can look at in this instance, because this was an appellate court which we can assume exposed all of its reasons for reaching its conclusion, and, therefore, we look to the reasons of the Full Federal Court which are fully outlined and they are fully reproduced, what it is that they took into account. What we say is when you do that you look to page 49. That is what they took into account. That is what has determined their conclusion at page 50.

It is not for any of us to be surmising as to what other impressions they may have obtained from looking at the matter more fully than we have and I did not do what they have done, which is to go back and read the material, so I look at it as the Court does. What do I see in the reasons for the decision, what have they based their conclusion at paragraph 34 upon and it appears to be entirely what they have reproduced and we say that as a result of that they have misinterpreted or misapplied what they have reproduced from the Tribunal’s reasoning.

HAYNE J: If we were to take it on, Mr McIntyre, would we not have to do as the Full Court did, namely, listen to the tapes of the proceedings in the Tribunal in order to assess whether, in the factual context, there was a denial of procedural fairness. Now, I am not saying that that is a bar, but I just want to understand how you say it would have to go.

MR McINTYRE: I would not put that, your Honour. I would say that you look to what the Full Court has exposed as the basis of its reasoning - it is done very fully - it undertook a very thorough process. It has presented its reasons in great detail, presented the evidence upon which it has based its conclusions and we would say that that would be the appropriate basis for this Court to consider the matter.

We do not ask that this Court go back and do what the lower courts are expected to do, but merely to look to the process of reasoning which has been entered into by the Full Court and reach the conclusion which we contend for, that is that there has been a skip, if you like, or a misapprehension of the significance of the Tribunal stopping the applicant in his tracks when he offered to produce additional evidence. If that has occurred then the defect is there, a defect which we would say is probably irremediable, not able to be remedied by the surrounding circumstances. If that is what happened, and that appears to be what happened, that is what the Full Federal Court has said happened by reproducing that portion of the transcript.

This case is distinguishable in a number of respects from the S154 Case. In that case it involved the applicant giving evidence about a matter which was fully within the knowledge of the applicant. It did not require the stopping of the case, if you like, and going off to obtain some other material. There were a number of opportunities, clearly as recited in the High Court’s decision in Applicant S154, for the applicant to come back and repeat or elaborate upon the matter which was said to be stopped by the Tribunal hearing.

In this case there does not seem to be any evidence of further opportunities to elaborate or, indeed, the attempts to further discuss the matter, or, indeed, there is no expression of any scepticism about the matter, no expression of any difficulty with the claim being made by the Tribunal. Those sorts of issues just did not arise. It is a cutting off at the source of the attempt by the applicant to present this form of material without indicating that an adverse conclusion either had been reached or might be reached on the basis of the oral testimony which essentially was the incomplete case of the applicant. Unless I can assist your Honours further, those are the submissions.

KIRBY J: Thank you very much, Mr McIntyre. The Court does not need your assistance, Mr Ritter.

The applicant seeks special leave to contend that he was denied procedural fairness by the Refugee Review Tribunal. That contention, which lay at the heart of his unsuccessful application for review before the Federal Court of Australia and subsequent appeal to the Full Court of that court, was founded in the particular course of events before the Tribunal and the meaning and effect of certain oral exchanges between the Tribunal and him.

The complaint made relates to a statement by the Tribunal member to the interpreter for the applicant. However, that statement cannot be taken in isolation. The Full Court of the Federal Court correctly considered the impugned statement in the context of listening to the tapes and examining the transcript for itself. That was the correct approach. No error has been shown in the reasoning of the Full Court. We are not persuaded that there are sufficient prospects of success in an appeal to warrant a grant of special leave to appeal to this Court. Accordingly, special leave must be refused. It is refused with costs.

AT 1.11 PM THE MATTER WAS CONCLUDED