WABM v MIMIA [2004] HCATrans 175 (28 May 2004)

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WABM v MIMIA [2004] HCATrans 175 (28 May 2004)

Last Updated: 8 June 2004

[2004] HCATrans 175

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P112 of 2002

B e t w e e n -

WABM

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 28 MAY 2004, AT 10.56 AM

Copyright in the High Court of Australia

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

MR J.D. ALLANSON: May it please the Court, I appear for the respondent. (instructed by Australian Government Solicitor)

McHUGH J: Yes, go ahead, Mr Irving.

MR IRVING: Thank you. Your Honours, I did submit, rather late in the piece yesterday afternoon, an outline of the applicant’s argument and I trust that was delivered to your Honours in sufficient time for your Honours to go through it.

Your Honours, I think I can put this into a relatively short compass by saying that it is submitted that there have been in this case three jurisdictional errors, of a kind that were considered beyond review at the time that matter came before the federal magistrate and then, subsequently, the Federal Court. I say that on the basis that at the time when the Federal Court was considering the matter, the applicable law was the decision in NAAV, and since then, of course, there has been the decision of the High Court in Plaintiff S157.

The situation, your Honours, in the submissions, is that at the time when this decision was made by the Refugee Review Tribunal, my client was a person who might be categorised, for the purposes of Iranian law, as an apostate. It is submitted that in making the decision about his status as a refugee, the Tribunal has directed its mind to the wrong question. Commencing at paragraph 32 of the applicant’s summary of argument, your Honours, I have set out there what the country information was in respect of apostates within Iran at the time.

The evidence that appears within the decision of the Tribunal is at paragraph 34 and it arises out of an assessment done by the UK Home Office in April 2001. It finds apostasy, or conversion from Islam to another religion, as something that is not acceptable under Islamic law. It differentiates between - - -

McHUGH J: Mr Irving, I read those submissions yesterday, but unfortunately I have not got a copy of them with me on the Bench. I think we might stand the matter down until I can follow your arguments with the submissions, rather than rely on my recollection and your oral summation of them. Is it inconvenient to you if we take the next matter of Czatyrko and then hear you?

MR IRVING: Not at all, your Honour.

McHUGH J: Thank you. We will adjourn this matter.

AT 11.00 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 11.22 AM:

McHUGH J: Mr Irving, you might start again.

MR IRVING: Thank you, your Honours. As I did indicate, the thrust of the submissions put on behalf of the applicant is that there have been some jurisdictional errors made in this case of a kind that were not considered capable of review at the time that the matter came before the Federal Court. It was not considered capable of review because the Full Court at that time had made the decision in NAAV, which limited, in essence, the grounds of review to the principles outlined by his Honour Mr Justice Murray in the Hickman Case. Subsequent, of course, to that decision - - -

McHUGH J: You mean Justice Dixon?

MR IRVING: I am sorry, your Honour, yes, Justice Dixon. Subsequent to the NAAV Case there was a decision of the High Court in Plaintiff S157, which, as it were, expanded the basis upon which a review could occur to jurisdictional error. It is put, your Honours, that there being instances of jurisdictional error made in this case – and I was about to take your Honours to paragraph 32 of the submissions put on behalf of the applicant. I take this as the starting point because, in my submission, it is essential that at the time when the decision was made by the Tribunal, the Tribunal recognised that it had to take the matter and the facts as they existed at that time and come to a decision.

CALLINAN J: Mr Irving, assume everything you say is right, how do you get round the credibility findings in relation to the matter which is the foundation for your client’s claim of refugee status: the matters found against him at page 38 of the application book, the last two paragraphs?

MR IRVING: Yes, your Honour.

CALLINAN J: If everything else you said were right, unless you can get rid of them, it seems to me you have a problem.

MR IRVING: I suppose there are two limbs of the argument I am putting, your Honour. The second limb is the limb that deals with the - - -

CALLINAN J: It all depends upon whether your client was truly an apostate or not, does it not?

MR IRVING: That is correct, your Honour.

CALLINAN J: If the Tribunal found, as it did, that he was not, or they did not believe him that he was, then the whole foundation for his claim collapses and Hickman and any subsequent decision to Hickman become irrelevant, is that not right?

MR IRVING: That would be correct, your Honour, yes.

CALLINAN J: So therefore you have to be able in some way to get rid of those findings that are made at application book 38. How do you get around them? They are findings of credibility.

MR IRVING: In this way, your Honour. The Tribunal sent out a notice to the applicant requiring him to provide additional information, because this was a point that went to the heart of the matter. I have covered this in paragraph 31 of the submissions. The notice given to the applicant was that the Tribunal required the applicant to contact, as it was put, the applicant’s Christian mentor and to receive evidence from that mentor as to whether the applicant had converted and the extent of his practising Christianity.

CALLINAN J: Does the Act not deal with the evidence that the Tribunal may or may not wish to have adduced before it? I am sure there is some provision in the Migration Act to that effect.

MR IRVING: It does, your Honour, yes.

CALLINAN J: It does not oblige the Tribunal to call a witness, does it?

MR IRVING: No, I do not understand that it is obliged, your Honour.

CALLINAN J: That is what you submit in paragraph 31:

it was incumbent on the Tribunal to call Pastor Dolling - - -

MR IRVING: In essence, what is put, your Honour, is that the Tribunal is carrying out an inquisitorial function. It has sent a letter to the applicant requiring a third party to provide evidence to it. It has received that evidence, a certificate of baptism, in particular, which the magistrate found to be a certificate of conversion sufficient to satisfy the definition of an apostate, and then has not properly dealt with that certificate.

CALLINAN J: If you go back to page 38 of the application book, the finding of credit against the applicant is not simply in relation to his religious claims. He was disbelieved with respect to his claim that a false charge was brought against him by the security manager of the post office where he worked. His claims were just not believed. What he may or may not have done afterwards and whether he really did it or whether it was proved that he had converted or not will not alter that credibility finding against him.

MR IRVING: It is put, your Honour, that finding in itself did not take account of the factual evidence before the Tribunal. What is put in that regard - - -

CALLINAN J: The Tribunal does not have to accept all the factual evidence. It can decide what it thinks is credible and what is not credible. You know that. It happens in every court case, in every proceeding, inquisitorial or adversarial.

MR IRVING: But what is put here, your Honour, and was found to be the case both by the magistrate and by the Federal Court, is that there had been omissions made to the record of the initial interview and that the initial interview was the matter that was crucial, as far as the Tribunal was concerned, in assessing the credibility of the applicant.

CALLINAN J: Well, what is wrong with that? Why should the Tribunal not place the greatest weight on the first interview?

MR IRVING: I am not suggesting otherwise, your Honour, but what is put here is that the record of the first interview was grossly deficient. It is put – and this is accepted by both the federal magistrate and by the Federal Court – the federal magistrate read through the record of interview and then listened to a tape of it. What became apparent is that the Tribunal had not listened to the tape of that first interview and was relying on notes of the record of interview, declined to listen to the tape. The magistrate was made aware of this and listened to the tape and the magistrate made the comment that the tape had been turned off for part D of the interview and expressed his concern about the policy underlying that.

CALLINAN J: But at paragraph 12 at page 49 – is that the magistrate’s decision?

McHUGH J: Yes.

CALLINAN J: The magistrate says:

I have listened to it. There is nothing on the tape recording which supports the applicant’s assertion that he had indicated that there was a religious reason for his dismissal from employment. On the contrary, the tape recording establishes that the written record of the interview is accurate.

MR IRVING: So far as it goes, your Honour. What his Honour points out is that there is a policy which requires that the tape be turned off before addressing the last part of the interview. His Honour looks at those questions that remain in part D and forms the view obviously that those questions would not have elicited the kind of response that the applicant has insisted that he made during the time. I am not sure – I have not done one of these matters before, your Honours, but did your Honours receive a copy of the appeal papers in respect of the Federal Court?

McHUGH J: Yes, we have them.

MR IRVING: Those appeal papers, your Honours, page 15 of that, as distinct from this application book, shows part D of the - - -

McHUGH J: I am sorry, you are talking about the appeal papers. Which appeal papers?

MR IRVING: The appeal in the Federal Court, your Honour.

McHUGH J: We have the reasons of the judge, Justice Carr, and the orders that he made and we also have the notice of appeal to him, which is in the handwriting of the applicant, but what else? Is there anything else?

MR IRVING: I see. What I was going to take your Honours to, which I assumed would be in your Honours’ possession, was in fact the appeal papers that were filed in the Federal Court.

McHUGH J: Are you talking about the notice of appeal itself?

MR IRVING: No, your Honour, the equivalent of the application book that is before your Honours which was filed in respect of the Federal Court appeal.

McHUGH J: Let me tell you what we have. We have the reasons for decision of the RRT, we have the application for an order for review in the Federal Court, we have the order of the Federal Court, we have the reasons of Magistrate Driver, we have the order, we have the notice of appeal to the Federal Court, we have the reasons for judgment of Justice Carr, an order, and we have the application for special leave, draft notice of appeal and summaries of argument in this Court for both applicant and respondent. That is pretty standard.

MR IRVING: I apologise, your Honour. As I say, I have not done this before.

McHUGH J: That is all right. We are grateful for your assistance as a pro bono counsel and for the preparation of your submissions, which are very clear and very helpful.

MR IRVING: Your Honours, the point that I was making was that the decision of the magistrate raises what I would put is a fairly fundamental concern, where a policy has been embarked upon which is not to record answers in respect of questions that may in fact elicit the kind of information that my client insists was given during the initial interview. His Honour says at page 50.16 of the application book:

There is nothing before me which suggests that part D of the written record is not also a faithful record.

In fact, there was the evidence of the applicant, of course, and he then goes on to say:

In addition, there is nothing in the form of questions asked under part D which would have logically provided the applicant with a stimulus to speak further about his religious beliefs.

In fact, his Honour has not given the reason why he says that. He has not provided an analysis of part D of the interview questionnaire and in fact part D does, in my submission, contain a question that could elicit and probably would elicit the kind of response that it is asserted by the applicant was made during the course of the interview.

McHUGH J: Yes, but what is this going to? What is your point? Given the findings of credibility concerning your client, that is what you are stuck with. There does seem to me to be an error in the Tribunal’s decision having regard to the recent decision of this Court in what is called S395 of 2002. That is where the Tribunal said that it finds that if a convert is discreet in the practise of Christianity, he or she would not face a real chance of persecution on the ground of his or her conversion alone. That sort of reasoning was overturned by this Court in S395 of 2002. Your problem is that that was on the basis if the Tribunal had accepted that your client had converted to Christianity. In fact, they refused to accept that he was a genuine convert. Now, that is your problem.

MR IRVING: Yes, your Honour, I accept that, and that is the problem - - -

CALLINAN J: Also, Mr Irving, surely if your client were a convert or intended to be a convert to Christianity when he left his birthplace, one would be entitled to take the view that that would have been one of the first things he would have said when he was asked a question designed to elicit why he came here and he made no mention of Christianity. On the basis of that alone, the Tribunal was entitled to make the credibility finding that it did.

MR IRVING: I accept what your Honour is saying in terms of what information was before the Tribunal in respect of the first interview.

CALLINAN J: Yes, but it does not matter what he said in the subsequent interview. The fact that he did not say what was critical in the first interview is sufficient to support the Tribunal’s finding of credibility, assuming we are even entitled to look at that as a factual matter.

MR IRVING: Your Honour, I take the point and I would like to address that point. The thrust of this submission is this, that the Tribunal attached the kind of significance to that first interview that your Honour has rightly attached to it as well. What my client complains about is that he says that in fact he did talk about his religious problems and the effect of that and the reason why he left the country in that first interview. The problem we have is that we cannot ascertain whether that is the case or not because the tape recording was turned off before he talked about that particular topic. That is what the magistrate - - -

McHUGH J: I know he claimed he did it, but there is no obligation on the department to tape record the interview. There is no legal obligation, is there? I am not aware of one.

MR IRVING: Again, this would not be a paper that is before your Honours, unfortunately, but the interview paper itself requires that there be a report. I assume that that is a part of the policy of the department and part of that policy is as adverted to.

McHUGH J: It is possible there is a regulation to that effect. There are hundreds of regulations in the migration regulations, or subregulations.

MR IRVING: As the magistrate found on the review, your Honour, there was no explaining the policy that turned the tape recording off before the end of the interview.

McHUGH J: But what does it go to? Given the huge discretion to find facts that the Tribunal has, it is the fact-finding tribunal. It has found facts, it has found that your client cannot be believed when he says he converted to Christianity.

MR IRVING: But in circumstances where my client is insisting that he in fact said that in the initial interview and it appears that the record of the initial interview is flawed - - -

CALLINAN J: Assume he did say it, it still contradicts what he said elsewhere. He was asked whether he had any reasons for not wanting to return to Iran and he said:

“There is no clear future in Iran. No motivation and no employment in Iran”.

That is an answer that is very difficult to reconcile with a claim that his reason, or, indeed, his principal reason, for leaving was because he was a Christian.

McHUGH J: The Tribunal and the department cannot shut their eyes to the fact that what people say on their first interview is more likely to be accurate than something said at a later stage when they have learnt something about refugee law and the necessity to be persecuted for reasons of race, religion, nationality or membership of a particular social group. So, human nature being what it is, there is a tendency on applicants for asylum to embellish their cases and, regrettably, in some cases to completely falsify their cases. So it is understandable that the Tribunal may have thought that what he said in the first interview was probably the closest account of his reasons for coming to Australia.

MR IRVING: One question that he was asked in the first interview, your Honour, was, “Please give details of any contact with police or security intelligence organisations”. The answer to that question was not recorded. The thrust of his complaint has always been that the answer that he gave to that was that he lost his job in Iran because of his religious problems and the security police. If your Honour pleases.

McHUGH J: Yes, thank you very much, Mr Irving. The Court is indebted to you, Mr Irving, for your pro bono assistance in this matter.

The Court is of the view that the application for special leave must be dismissed. An appeal would have no reasonable prospects of success. Accordingly, the application must be dismissed with costs.

AT 11.43 AM THE MATTER WAS CONCLUDED