NADY v MIMIA [2004] HCATrans 343 (10 September 2004)

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NADY v MIMIA [2004] HCATrans 343 (10 September 2004)

Last Updated: 20 September 2004

[2004] HCATrans 343

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S479 of 2003

B e t w e e n -

NADY

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 SEPTEMBER 2004, AT 2.19 PM

Copyright in the High Court of Australia

NADY appeared in person.

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

IQBAL HYE CHOWDHURY, re-called as interpreter:

KIRBY J: You are the applicant in these proceedings?

NADY (through interpreter): Yes.

KIRBY J: You are known as NADY because Parliament has provided that your identity will not be disclosed because the transcript goes onto the Internet. Do you understand that? We do not mean any discourtesy to you by calling you NADY, but we are not going to give your name so that it will not be on the record. Will you explain that, Mr Interpreter? Now, you made an affirmation earlier in the day, Mr Interpreter, for the purpose of your duties as an interpreter, and you are subject to that earlier affirmation as far as these proceedings are concerned.

THE INTERPRETER: Yes, I affirm that.

KIRBY J: Yes, very well. Well, you have 20 minutes in which to address the Court. We have read the documentation, so you do not have to repeat what is in the documentation, but this is your chance to speak to the Court on the matters that you wish to say. It might be easier if you come to the middle, because that is being recorded there. You can come a bit closer, too.

NADY (through interpreter): Since I have furnished my submission in writing, I do not have any lawyer, I have not engaged any lawyer. I feel that if I talk too much then it may not relate to legal matters, because I am not a lawyer, but in that case that would be a wastage of time. Despite that, I would like to mention I have stated four grounds in my submission. I am relying on those four grounds. I am also citing the reference of a case, Appellant S395/2002 v Minister for Immigration and Multicultural Affairs and Appellant S396/2002 v Minister for Immigration and Multicultural Affairs, Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal. So I am relying on these cases. So I prefer fair justice from this Court.

KIRBY J: Yes. In the matter of S395 of 2002, which concerned applicants from Bangladesh, the Tribunal and the Court accepted that the applicants were homosexual. In your case, the Tribunal rejected the assertion that you were homosexual. This Court can only disturb a finding of that kind if you can establish that the Tribunal acted outside its jurisdiction. We do not sit here to review the merits of that decision or to decide whether we would ourselves find that you were homosexual. That is a matter that is given by law to the Tribunal. That, it seems to me, is the big hurdle that you have to overcome, that the Tribunal did not believe you were homosexual and effectively concluded that you had just made that claim in order to secure refugee status.

NADY (through interpreter): Your Honour, since I do not have any legal experience, I cannot propose anything new.

KIRBY J: Do you have anything else to say that is not already written down in your written submissions?

NADY (through interpreter): No, your Honour.

KIRBY J: Yes, very well. Well, you can sit down for the moment. Mr Reilly there is a matter that does need to be addressed, and that is the reliance by the Tribunal on its own knowledge, personal knowledge, of the venues that were mentioned by the applicant. This is at page 14 of the application book. That is somewhat unusual in a hearing, that the Tribunal is relying on its own knowledge of the places that were referred to by the witness.

I have a remembrance of cases in the law of evidence where judges used peculiar knowledge of their own and that was disapproved by appellate courts. I am thinking of a divorce case where a judge, I think, had some knowledge, maybe from a view, which was peculiar and not something which was within general knowledge. Now, what do you say about this reliance on peculiar or special knowledge on the part of the Tribunal? It is not specifically relied on by the applicant, but it is, to say the least, a little unusual.

MR REILLY: Your Honour, in my submission, it is not unusual in the context where the credibility of the claim to be homosexual is the essential first issue that the Tribunal needs to address. It is not an easy matter to address, and one way to address it is simply by testing the sort of knowledge that an applicant may be likely to have. As for the fact that it is a matter within the Tribunal’s knowledge, the Tribunal is not bound by the rules of evidence and this Court has stated that Tribunal members are expected to and do acquire knowledge, certainly, of country information, which may be essentially background knowledge of their own, rather than be specifically in a documentary form - - -

KIRBY J: That is country information, but this is local information concerning particular places. The Tribunal suggested that from its own knowledge it knew the layout of bars and clubs in Sydney, which would not be, one would think, normally known by members of courts or tribunals.

MR REILLY: Well, your Honour, I do not know why the Tribunal member in this case had that knowledge, but it derived from the applicant’s own claims that he frequented these establishments and it is simply part of the Tribunal’s fact-finding task to examine that claim. It is a matter really put in play by the applicant. Nothing really turned on it in the end, your Honour - - -

KIRBY J: Is it analogous to a case where in, say, a running down case, a member of a court or tribunal knows the scene of the accident and then begins to question a plaintiff or a witness about that particular scene? What would be the response of the law to such a case?

MR REILLY: The response of the law may be different, because a judicial officer is bound by the rules of evidence and has a different function. The Tribunal is exercising an inquisitorial function. It is not bound by the rules of evidence, and, in a case like this, there is no reason why it cannot make use of that knowledge, not in a way that is unfair – it evidently discussed this at length with the applicant during the hearing. There seems to be no suggestion that the Tribunal’s knowledge is, in fact, erroneous in any respect.

In my submission, there is no difficulty raised, nor is it really a matter that is essential in the end to the Tribunal’s reasoning. The Tribunal disbelieved the applicant for reasons other than his degree of knowledge of these venues, though it is true that that is one matter the Tribunal had regard to. It is plain the important matters were the applicant’s own claims, the unlikelihood of them, his behaviour during the hearing, the matters that the Tribunal mentions. So, in my submission, your Honour, there is no difficulty, given that the Tribunal is required to test an applicant’s claims and this is one way to do it.

KIRBY J: The difficulty is that we have no knowledge of such matters and it is not, as it were, on the record. You see, with country information or other information, you have a record. What if the Tribunal member’s memory of the layout of a club or venue was wrong? There is no basis on the record by which a court can review what he has said.

MR REILLY: Well, it would at most be a factual issue, but, of course, it is not contended in this case that the Tribunal’s knowledge was wrong in any respect. So it simply does not arise, in my submission. In my submission, there is no difficulty with the Tribunal proceeding as it has done in this way, because it - - -

KIRBY J: I suppose you can say that the Tribunal did draw its special knowledge to the notice of the applicant. At least, it did so in the reasons. Did the Tribunal draw it to the notice of the applicant during the hearing?

MR REILLY: It must have, your Honour.

KIRBY J: Presumably, the member must have done that in the course of tackling the applicant on his description of the gay venues.

MR REILLY: Pages 6 to 7 recount the course of the hearing, but it was a matter that derived from the applicant’s own claims. The Tribunal member evidently had some knowledge of these establishments and was able to question the applicant accordingly.

KIRBY J: Well, he does describe there the fact that he put the matter directly to the applicant.

MR REILLY: Yes, there was certainly no unfairness, and, because of the Tribunal’s inquisitorial function and the fact that it is not bound by the rules of evidence, there is no other problem, in my submission, with this course.

KIRBY J: Yes. Is there anything else that you wish to say? The reference to the different name of the bar, Caesars and Kaisers, is a pretty unpersuasive reason. The King Emperor was known as the Kaiser-i-hind. I mean, that may just be a continental way of describing Caesar. After all, the words are related.

MR REILLY: Your Honour, it is a factual matter for the Tribunal to assess, in my submission.

KIRBY J: That seems to be a recurring theme of your submissions to the Court, Mr Reilly.

MR REILLY: Surprisingly, your Honour.

KIRBY J: Yes, very well. Anything else?

MR REILLY: I rely on my written submissions.

KIRBY J: Yes, is there anything in reply from the applicant?

NADY (through interpreter): Yes, your Honour. Your Honour, I would like to say something about the club, Caesar. Since I do not have good command over the English language, “ca” is pronounced in our country like “ka”, that is why I said “Kaiser”.

KIRBY J: Yes. I do not think much turns on that, but the matter which we asked counsel for the Minister about concerned the knowledge of the Tribunal member of the layout of the hotel and club. That would not be known to most members of courts or tribunals. But the Tribunal member does describe the way in which he put this matter to you and gave you the opportunity to deal with the aspect of the evidence that was concerning him. It is not as if the member of the Tribunal kept it secret and to himself, and we cannot correct any mistakes that the Tribunal makes in factual matters; we can only correct matters of jurisdiction and law. That is why I asked the barrister for the Minister about the way in which the Tribunal had gone about it, in case that represented a mistake of law or jurisdiction. Do you have anything else to say?

NADY (through interpreter): Whatever you decide, your Honour.

KIRBY J: Yes, thank you very much. You may sit down.

The applicant advances various criticisms of the reasoning employed by the Refugee Review Tribunal in the course of upholding the decision of the Minister’s delegate not to grant a protection visa to him. None of the questions agitated can, however, arise unless the Tribunal’s rejection of the applicant’s claim that he is a homosexual can be successfully attacked.

There is no attack on that aspect of the Tribunal’s reasoning which, subject to one qualification that I will mention, is orthodox, factual in character and was available to the Tribunal. The qualification relates to the Tribunal’s conclusion that the applicant’s knowledge of various venues in Sydney attended by homosexuals was slight and was acquired only for the purposes of advancing a false claim. The Tribunal said:

the descriptions of bars and clubs that he has been to were not accurate and did not accord with the Tribunal’s personal knowledge.

That employment of personal knowledge might, in another case, raise a question attracting a grant of special leave. However, the Tribunal did appear to disclose to the applicant the principal respects in which its Member’s personal knowledge revealed errors in the applicant’s account. There were many other reasons that were advanced by the Tribunal for rejecting the applicant’s version. Those reasons have not been shown to be unsound.

The applicant relied on the decision of this Court in S395 of 2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 78 ALJR 180; 203 ALR 112. That decision also concerned applicants for refugee status from Bangladesh relying on persecution on the ground of their homosexuality. However, in that case there was a clear finding by the Tribunal, accepted by the courts, that the applicants were homosexual. This contrasts with what was found in the applicant’s case. The reliance by the applicant on the decision of this Court in Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966 is also unpersuasive. No evidentiary foundation has been presented for raising that matter in this Court.

For these reasons, special leave is refused. It must be refused with costs.

Would you explain to the applicant that the decision of the Court will be transcribed and sent to him within the next couple of days.

The Court will now adjourn until 2.15 pm on Tuesday, 14 September 2004.

AT 2.40 PM THE MATTER WAS CONCLUDED