NADR v MIMIA [2004] HCATrans 339 (10 September 2004)

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NADR v MIMIA [2004] HCATrans 339 (10 September 2004)

Last Updated: 16 September 2004

[2004] HCATrans 339

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S480 of 2003

B e t w e e n -

NADR

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 SEPTEMBER 2004, AT 11.38 AM

Copyright in the High Court of Australia

MR I.G.A. ARCHIBALD: May it please the Court, I appear for the applicant. (instructed by Accentro Legal)

MR T. REILLY: If the Court pleases, I appear for the respondent. (instructed by Blake Dawson Waldron)

GLEESON CJ: Yes, Mr Archibald.

MR ARCHIBALD: Your Honours, yesterday there was filed a supplementary argument and some supplementary documents. I seek to file them and to refer to them during this submission.

GLEESON CJ: Yes.

MR ARCHIBALD: Your Honours, this case relates to a finding by the Tribunal that a claim made at the Tribunal hearing that there were a further up to 20 assaults was a late invention and that was a critical component of the adverse credibility finding. That finding as to late invention is attacked on two bases, your Honours.

The first basis is set out in the applicant’s summary of argument, the first summary of argument. The second basis is largely set out in the summary of argument that was filed yesterday. The first basis is that the finding was made essentially without the body of evidence which supported it. The second basis is that the finding was illogical. If I could put it very briefly to your Honours, the first basis is - - -

GLEESON CJ: What precisely is the finding?

MR ARCHIBALD: The finding was that the applicant’s claim as to a further 20 assaults by people who were using police – suspected police using police batons was a recent invention. The basis for the finding of recent invention and the only basis put forward by the Tribunal was that the applicant had the services of a migration agent - - -

GLEESON CJ: No, that is not a fair statement. It was that he had had ample opportunity prior to the Tribunal to amend his claims and then he went on to talk about the services.

MR ARCHIBALD: Yes, sorry, your Honour, I stand corrected there. He had ample opportunity and he had the services of a migration agent. The submission on that, your Honour, is that firstly it is not logical, that to make a finding of ample opportunity it would be necessary to have evidence as to an awareness by the applicant as to what the law in Australia was, as to the importance of the amendment, as to a reasonable capacity to express or
convey the amendment, facilities to prepare it and perhaps the appropriate advisers to assist on it.

Essentially, the factual matter put forward is the migration adviser but there is nothing else, and hence, the submission is that to perhaps rely only on the effluxion of time or the fact that a claim was made in the protection visa application and then there was an addition to it at the hearing and then to say ample opportunity is not logical and that would be an appropriate matter for this Court to give some guidance in the migration context.

The second aspect, your Honours, is that the body of evidence was not before the Tribunal. My friend attacks this submission on the basis that we are seeking merits review. The submission is that it is not merits review in that – and if I could use an analogy here, your Honours – if a court is deciding whether a colour is yellow or green and decides one way, that is merits review, but if there was a body of evidence which would totally convert or change one of the colours, well then a remedy should lie to permit that exercise of the administrative function.

Essentially, at the hearing the applicant made the claim – the full details of up to 20 assaults by persons suspected of being police were certainly not in front of the Tribunal, and the Court, without going to the evidence, can consider that the administrative function has miscarried. In addition, your Honours, in the supplementary outline of argument I refer to the applicant in the interval between the delegate’s decision and the Tribunal hearing. He did in his handwritten application for review by the Tribunal and in his own handwritten submission to the Tribunal prior to the Tribunal decision refer to many assaults.

So, whilst it may not be relevant, the evidence went the other way against late invention but we say that the finding was illogical, in any event. They are my submissions, your Honours.

GLEESON CJ: We do not need to hear you, Mr Reilly.

This is an application for special leave to appeal against a decision of the Full Court of the Federal Court given in August 2003. One of the aspects of the applicant’s claim for refugee status was his statement that after he and his wife were attacked in October 2001 he had been assaulted by persons using police batons many times, perhaps 10 or 20 times.

One reason why the Tribunal did not accept this was that the applicant had not mentioned these 20 assaults previously and, in particular, in his protection visa application. He sought to explain this failure by referring to constant headaches and an inability to concentrate. The Tribunal rejected that explanation saying:

He has had ample opportunity prior to the Tribunal hearing to amend his claims. He has had the services of a migration agent and an interpreter when completing his protection visa application. I am of the view this is a late invention in order to bolster his claim.

The applicant tendered some affidavit material to Justice Wilcox at first instance in the Federal Court and tendered that material again with further material to the Full Court of the Federal Court. It was not received by either court. The material went principally to the question of the nature and extent of the services that were provided to the applicant in relation to the completion of the protection visa application.

Special leave to appeal is sought primarily in relation to the question of whether the evidence should have been received in the Federal Court. It is also argued that the reasoning of the Tribunal on the particular point in question was illogical.

Even if special leave were granted, the appeal would enjoy no prospects of success. The Tribunal’s conclusion that the applicant did not have a well-founded fear of persecution for a Convention reason rested on numerous grounds, of which the finding about the 20 assaults was only one. Those grounds included the findings that the applicant made numerous foreign journeys without seeking protection in countries other than Australia, that the applicant had lied about his reasons for not doing so, that he lied about a visit to Bulgaria, that injuries suffered by the applicant and his wife were not shown to be the result of an assault on political grounds, that there was no independent evidence that either the police or the applicant’s political opponents persecuted or harassed others and that there was no evidence that the government of the Ukraine condoned or was unable or unwilling to provide effective protection against harm inflicted on members of the applicant’s party.

We are of the view that there are insufficient prospects of success of an appeal from the Full Court of the Federal Court to warrant a grant of special leave and the application is dismissed with costs.

We will adjourn for a short time to reconstitute.

AT 11.47 AM THE MATTER WAS CONCLUDED