WAAG v MIMIA [2004] HCATrans 475 (19 November 2004)

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WAAG v MIMIA [2004] HCATrans 475 (19 November 2004)

Last Updated: 25 November 2004

[2004] HCATrans 475

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P4 of 2003

B e t w e e n -

WAAG

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 NOVEMBER 2004, AT 10.01 AM

Copyright in the High Court of Australia

MR G.F. BARRETT, QC: May it please the Court, I appear for the applicant. (instructed by Refugee Advocacy Service of South Australia)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia: May it please the Court, I appear with my learned friend, MS M.A. PERRY, for the respondent. (instructed by Australian Government Solicitor)

GUMMOW J: Yes Mr Barrett.

MR BARRETT: The application presently before the Court is from what I will call the first Full Federal Court judgment, one delivered on 18 December 2003. Unfortunately, that judgment was not the one included in the application book. I understand that that has now been provided to the Court.

GUMMOW J: Yes.

MR BARRETT: The one which appears in the application book is the judgment delivered on 9 April 2003 pursuant to - - -

GUMMOW J: Can we just look for a minute at your draft notice of appeal. Where do we find that?

MR BARRETT: The draft notice of appeal appears at page 72 of the application book. Can I say that the draft notice of appeal, of course, was filed before the decision in S157.

GUMMOW J: Yes.

MR BARRETT: It was lodged in January 2003 and judgment in S157 was delivered - - -

GUMMOW J: Reading the decision of the magistrate, he might not have articulated it in this way, but it may be that in substance what he was saying was that this decision-maker in the Tribunal – what was said manifested really what is encompassed in the idea of a constructive failure to exercise jurisdiction. It was not really an application of mind to the task at hand. That at the moment is not reflected in the notice of appeal.

MR BARRETT: That is how we would now see it in the light of S157, with respect.

HEYDON J: Mr Barrett, the magistrate at page 52, line 18 said:

A reading of the transcript of the hearing suggests a pre-determination on the part of the Tribunal.

We do not have the transcript of the hearing. Do you rely on any part of the transcript for today’s purposes?

MR BARRETT: Yes, I am, with respect, but I am relying only on those parts which are referred to by the learned federal magistrate and can I suggest that they are extremely helpful in this regard. Can I move straight to that in that event.

HEYDON J: Page 48 and 49.

MR BARRETT: Page 48, yes, and there are two parts to that. What we suggest is that the RRT member was there exemplifying what we say is the template he required to be replicated to make a finding that the applicant was homosexual. It gets worse, of course, because not only is there that prejudgment, we say, but the RRT does not get a response from the applicant before moving on. What I mean by that is if we turn over to page 49 we see that at the end of what I submit is an extremely elliptical and complicated question the applicant unsurprisingly replies:

I don’t understand it. I’m sorry.

KIRBY J: It is very odd, almost bordering on the bizarre, some of the questions, but the real issue you have to address is whether it is an error in the exercise of jurisdiction or is an error that has occurred in the search by the Tribunal in a rather peculiar way for the facts that were important to the exercise of that jurisdiction.

MR BARRETT: Yes, I accept that that is what I have to demonstrate.

KIRBY J: Trying to show that there is actual bias is a very, very high hurdle to jump.

GUMMOW J: You do not necessarily have to do that.

MR BARRETT: Your Honour, of course, that was the hurdle which was very often before applicants before the judgment in S157, and at least before the magistrate that hurdle was jumped, but I do not seek to jump that hurdle now in the present application. I seek to demonstrate that apprehended bias amounts to jurisdictional error in this case.

GUMMOW J: It is not just a question of apprehended bias; it is a question of what I said before perhaps, constructive failure to exercise jurisdiction through a failure to perceive the task that you are meant to be engaged in and evidenced by this pattern of questioning.

MR BARRETT: Yes.

GUMMOW J: Anyhow, it is a matter for you to take up and, if need be, revise the grounds of appeal that is propounded.

MR BARRETT: Well, I would certainly wish to take that opportunity if that may be afforded.

GUMMOW J: There are a whole string of cases in this Court on what constructive failure to exercise jurisdiction can involve.

MR BARRETT: Yes, and may I suggest that presently this can be exemplified by the questioning and by the judgment which is made by the Tribunal member. I will proceed, if I may.

GUMMOW J: Yes, certainly.

MR BARRETT: But I will seek an opportunity to - - -

GUMMOW J: You have taken us to the top of 49 and the puzzled response by the applicant who did not understand it.

KIRBY J: It appeared to be the intersection of two worlds, the Tribunal member asking this extremely complicated question with lots of stereotypes thrown in and then the applicant saying:

I don’t understand it. I’m sorry.

MR BARRETT: That was taken, with respect, by the Tribunal to mean, I suggest, “I don’t understand the issue because I am not homosexual and I can’t understand what you’re saying”, instead of what I suggest is the plain outcome of that question and answer, and that is that the applicant simply did not understand what the words that the member was uttering. He did not understand the meaning of it. Goodness knows how that might have ended up in translation through the interpreter.

GUMMOW J: What was the background of your client?

MR BARRETT: He is Iranian. He had lived in Tehran for most of his life except when he was - - -

GUMMOW J: What was his level of education?

MR BARRETT: Towards the end of secondary school education, with respect, your Honour. He was then - - -

GUMMOW J: What had been his occupation?

MR BARRETT: I would describe them as semi-skilled. He worked in a chandelier factory; he worked for his father in a shop; those sorts of occupations.

KIRBY J: He was also in the army, I think, was he not?

MR BARRETT: He was. When not in Tehran, he was in the army, I think, for about two years, and there is no evidence before the Tribunal of whether he took up a skilled position or not in the army.

GUMMOW J: One would doubt if he knew anything about famous Egyptian novelists, yet that is what was put to him.

MR BARRETT: That is very much at the heart of my point. The question put – and it is not the only one - - -

GUMMOW J: .....write in Arabic, presumably, not Farsi in the first place.

MR BARRETT: I put to the learned federal magistrate that it was a parody, that the way in which the questions were asked and the way in which they then translated into the findings was a parody.

GUMMOW J: Yes.

KIRBY J: Do you attack the reasoning of the Tribunal in its decision, as distinct from these interchanges during the conduct of the hearing?

MR BARRETT: Yes, I do.

KIRBY J: Could you address the point where you say in its decision the Tribunal continued the errors that you suggest occurred during the - - -

HEYDON J: Page 34 is an example, is it not?

GUMMOW J: Page 34?

KIRBY J: Justice Heydon has suggested page 34.

HEYDON J: At page 34 one finds woven into the Tribunal’s reasoning this question of - - -

KIRBY J: I see Oscar Wilde gets a mention and Alexander the Great as well as Naguib Mahfooz. I mean Greco-Roman wrestling, Better Midler and Madonna.

HEYDON J: He did not believe the applicant (a) because of “inconsistencies about the first sexual experience”, (b) “the uniformity of the relationships”, (c) the “absence of a ‘gay’ circle of friends”, (d) lack of “contact with the ‘gay’ underground” and “lack of other forms of identification”. That is a reference to this type of questioning, I think.

MR BARRETT: Yes. Your Honour, can I say this, that I would go further to say not only did the Tribunal member fail to engage with the applicant in a proper inquisitorial function but the Tribunal unfortunately misrepresented the information actually before him from the applicant, in particular, in two respects, in two particular respects, and I am conscious that I have only over the telephone drawn the learned Solicitor-General’s attention to material that was before the federal magistrate and before the RRT and that is that in a pre-hearing statement and in a post-hearing statement the applicant spoke of being aware of those matters which the Tribunal described as the world of homosexuals in Iran – described as the culture; the parks; the subculture, if you like. The Tribunal actually overlooks entirely matters in those two statements which are not before the Court, but I can read them from the book. In my submission, the evidence was simply misrepresented.

GUMMOW J: I think we will call on the Solicitor. Yes, Mr Bennett.

MR BENNETT: If the Court pleases. Your Honour, the primary attack which seems to be made on the decision of the - - -

GUMMOW J: Well, in lay terms, the primary attack is that it was botched in the Tribunal, Mr Solicitor.

MR BENNETT: Well, your Honour, it was not botched. If one reads the whole of the Tribunal judgment, one sees a consistent line of reasoning and a conclusion being reached. The criticism which is made concerns a question which the Tribunal asked and what is very much treated in the Tribunal’s judgment as a passing reference. If one looks, for example, at page 34 - - -

KIRBY J: This is where Oscar, Alexander and Bette as well as Madonna turn up?

MR BENNETT: Yes. The very paragraph my learned friend relies on, if one reads the sentence, what the Tribunal is saying is, “I am not looking for these things”.

GUMMOW J: Well, why mention it? What sort of training do these people get in decision making before they are appointed to this body, Mr Solicitor?

MR BENNETT: I cannot assist your Honour on that.

GUMMOW J: No. Well, whatever it is, what happened here does not speak highly of the results of it.

MR BENNETT: Well, your Honour, the short paragraph at point 2 of page 34 summarises one aspect of the matters which were taken into account. Then the Tribunal goes on to say, “By this I do not mean”, and then there is the passage my learned friend takes issue with which is - - -

KIRBY J: Yes, but it then goes onto to say:

However, the Tribunal was surprised to observe such a comprehensive inability on the Applicant’s part to identify any kind of emotion-stirring or dignity-arousing phenomena in the world around him.

I mean, Madonna, Bette Midler and so on are phenomena of the Western culture. In Iran, where there is death for some people who are homosexuals, these are not in the forefront of the mind. Survival is.

MR BENNETT: But he goes on to say:

The Tribunal stresses it was not looking for evidence of engagement with “high culture”.

The Tribunal put all of these elements together: the inconsistencies about the first sexual experience; the uniformity of the relationships . . . the complete absence of a “gay” circle of friends; lack of evident contact with the “gay” underground; lack of other forms of identification.

The last is sort of almost an add on. It is something which had it been there might have been a factor in his favour, but the Tribunal comments that it was not having gone out of his way to say he does not regard that as something which he is looking for as an essential factor or even really as an important one. He goes on to return to the specific matters on the next page and this is very much a throwaway aspect of it. It is not an essential part of the major reasoning which leads the Tribunal to its conclusion and, in any event, it is heavily qualified. My learned friend’s case ignores the qualification. It ignores the word “not” if you like. That is the problem with the submission. The question, of course - - -

GUMMOW J: There is also page 25, is there not, line 7 and following, for example?

KIRBY J: André Gide gets thrown in, Marilyn Monroe.

HEYDON J: He “expressed negligible insight into Freud’s work.”

MR BENNETT: I am sorry, this is page 25?

KIRBY J: Page 25, line 7:

The Tribunal was not demanding that the Applicant be a leading Gide scholar or even a Marilyn Monroe fan - - -

GUMMOW J: Line 16:

He also said he had heard of Freud but expressed negligible insight into Freud’s work.

KIRBY J: You say this is simply the exercise of jurisdiction and we are not here to parse and analyse the way reasoning is made to reach factual conclusions. There may be adventitious claims of homosexuality to secure refugee status and it is proper that the Tribunal should look at that possibility and, insofar as that is what they are doing, that is not a thing that courts on judicial review will interfere with. I understand that. But when you read all of these strange allusions to Western phenomena, it does not seem as though the Tribunal is really performing the task of considering the question of the homosexuality of the applicant in Iran where it is under the Sharia law a matter potentially of death and, therefore, the talking of Bette Midler, Marilyn Monroe, André Gide, Oscar Wilde and so on is just beside the point. It is not exercising the jurisdiction of the Tribunal.

MR BENNETT: But that is exactly what the Tribunal recognises, your Honour. What it says at 34 is:

The Tribunal thus well understands that it should not expect all or any homosexual men in Iran to take an interest –

in those matters.

KIRBY J: That then poses the Presiding Judge’s question, why mention it then, why mention it repeatedly at different parts of the transcript of the reasons and of different parts of the transcript of the hearing to such a point that the applicant says:

I don’t understand it. I’m sorry.

MR BENNETT: It is asked once in one question which is a very confusing, rambling question and one can - - -

KIRBY J: Thank goodness they never occur in this Court.

MR BENNETT: Well, your Honour, there are many advocates at the Bar who have been guilty of asking - - -

GUMMOW J: Well, they are paid to understand them and this gentlemen here, who was seeking refugee status, was not.

MR BENNETT: It was a bad question, there is no doubt of that, but that does not take one anywhere. In fact, the transcript begins with the member pointing out, as one would expect, in effect, the Browne v Dunn nature of questioning that may arise. He says, “If I put adverse information to you or challenging observations, it doesn’t mean I am inclining to a decision against you, okay? It means that I’m just providing you with an opportunity to clarify or reconcile matters.” So there is the standard statement at the beginning that - - -

KIRBY J: Could you help me on the question of constructive failure to exercise jurisdiction in this Court. Where stands that doctrine? There have been divisions of opinion, have there not, about whether that is a correct approach to judging jurisdictional error or not?

MR BENNETT: Your Honour, there have been. It has not been mentioned before today in this case. It has never been a basis on which this decision has been attacked.

KIRBY J: But it is a basis for jurisdictional error which warrants judicial review.

MR BENNETT: There is some conflicting authority on that question and it - - -

GUMMOW J: What conflicting authority?

MR BENNETT: Well, I am sorry. There is authority which conflicts in the sense that it deals with different fact situations and - - -

GUMMOW J: Well, exactly. The principle has been around for a couple of hundred years.

MR BENNETT: In its broad form, yes, your Honour, but as to what constitutes constructive failure to exercise jurisdiction - - -

GUMMOW J: Well, you are never going to be able to lay it down in black and white because of the nature of the situation you have to deal with.

KIRBY J: That is why the English have got rid of jurisdictional error. They say it is a mystery wrapped in a riddle inside an enigma.

MR BENNETT: Yes.

GUMMOW J: Yes, the question is whether they have done any better, but anyhow we still have it and there it is.

MR BENNETT: What one has here is a factual conclusion reached primarily on an analysis of specific facts and specific inconsistencies and repeated inconsistencies. For example, the reasons given for wishing to enter Australia at the beginning were quite different to this one, which emerged later, and inconsistencies in his stories, improbabilities in his accounts of what occurred and so on. There is, in the course of the whole transcript, one question which is, as has been pointed out, a fairly inept question and a passing reference in the judgment which says “Well, I am not looking for these things”, and it is sort of explaining it away and saying but it is significant that there was no attempt at all - - -

GUMMOW J: What do you say about Mr Barrett’s point picking up at page 33, line 33:

The Tribunal was strongly struck by the fact –

Now, Mr Barrett says to us, in fact, that is contrary to what was before the Tribunal.

MR BENNETT: Well, your Honour, I do not know what was before the Tribunal that we have not been - - -

GUMMOW J: Well, he says he discussed it with you.

MR BENNETT: He has not discussed it with me, your Honour. I think there was a telephone call to my solicitor last night, your Honour, or this morning, I am sorry. I have not had a chance to look at or give any consideration to that. Your Honour, the way my learned friend puts it this morning would seem to be that one of the statements or one of the pieces of evidence before the Tribunal which has apparently not been referred to by anyone throughout the appellate process contains an allegation of fact which might be in part inconsistent with part of the sentence at line 35 – the reference to parks and underground networks.

Now, if that is so, that is something which there was ample opportunity to raise before the Federal Magistrates Court and possibly to seek some sort of application in relation to other matters at an early stage, but it cannot possibly go to any issue arising on a special leave application at this stage. It is, at worst – and I do not admit this – but at very worst and at its highest, a factual error. I do not admit that it was one, but that is all it could possibly be and, again, in a subsidiary part of the judgment, the same subsidiary part which is emphasised by the whole of the arguments put on behalf of the applicant throughout the appellate process. One would think that the only things in this judgment were the throwaway references saying, “I wasn’t looking for an understanding of Oscar Wilde”, et cetera. That is simply, when one reads the judgment as a whole, not something which goes to the centre of it at all.

KIRBY J: That is the way the relevant Full Court of the Federal Court dealt with it. They said error within jurisdiction, if any; not error that took the Tribunal outside jurisdiction.

MR BENNETT: Yes. They, of course, were dealing with an appeal against a finding of the federal magistrate concerned with actual bias. That is why the matter was taken seriously and was contested to the extent it was at that level.

GUMMOW J: With your appearance.

MR BENNETT: That does not give any cachet to the proceedings.

KIRBY J: It does so far as I am concerned.

MR BENNETT: The fact, perhaps, that it is the last appearance of my learned junior as a junior which may be of far more significance than any cachet which I give it. However, it may or may not be. Now, your Honours, there is simply no special leave point in this case. There is a small part of a judgment which could be criticised and which is put, in the judgment itself, as a subsidiary aspect and prefaced with the word “not”.

KIRBY J: But the “not” is a bit undone by what follows when I think Marilyn is thrown in.

MR BENNETT: Well, your Honour, I am not sure why she is thrown in.

KIRBY J: Well, that is exactly the point. It leaves one a little disquieted. I mean, this is a serious question and it is a serious question as to whether the applicant is a homosexual and whether this is merely something he has invented to secure refugee status and it is a very proper thing for the Tribunal to examine that, but one feels disquieted that it is then examined by reference to André Gide, Oscar Wilde, Alexander the Great, Madonna and other such considerations. It rather suggests that the Tribunal has lots of stereotypes going around in its mind and is not addressing the very serious question of the status of homosexuals in Iran.

MR BENNETT: The alternative, your Honour, is that the Tribunal is aware of stereotypes, is faced with an unusual question and is determined to make clear that he is not relying on those stereotypes and feels the need, because those stereotypes do exist in society, to exclude them and say, “Well, that is not what I regard as the important issue”. It may be that as a matter of judgment and taste one should be more careful in the drafting of judgments, bearing in mind, as your Honour says, the seriousness of the question, but nevertheless the Tribunal goes out of its way to exclude those matters as being relevant considerations and, in my respectful submission, it is quite proper for it to do so.

One can think of all sorts of racial stereotypes if one were dealing with a race discrimination situation where a Tribunal might say, “In determining whether a person is a member of this particular race, I ignore stereotype A, B, and C because I do not regard those as helpful”. That is something a Tribunal may well choose to say.

KIRBY J: Leave aside this particular case, is it a proper consideration to take into account in the present application that because of the then understanding of the state of the law the matter was considered by the federal magistrate and then in the Full Court of the Federal Court on a basis which we now know was not an accurate legal basis and the point is now before this Court for consideration finally, before a final decision is made, on an accurate and available legal question?

MR BENNETT: Your Honour, one does not get a constructive failure to exercise jurisdiction because one correctly says X is not the question.

KIRBY J: Well, I realise you say that, but there is a lot of material there that suggests that though that was said, the issue of X was still very much in the mind of the Tribunal member because the Tribunal member kept coming back to X.

MR BENNETT: Your Honour, with respect, he did not keep coming back to it. He mentioned it twice and the - - -

KIRBY J: We are referring also to the transcript which is mentioned in the submissions of the applicant.

MR BENNETT: One question, your Honour, one question, where the very rambling nature of the question rather illustrates that the Tribunal did not have anything terribly specific in mind. It was just, perhaps, eliminating one matter. One could imagine in the course of this inquiry an applicant coming to the Court and saying, “I have all my life been imbued with and an admirer of the works and achievements of great homosexuals of history, of Oscar Wilde, Alexander the Great and so on”. Now, if the person were to say that, and I discuss that with my friends and so on, that would be a factor in his favour on this question. The absence of it - - -

KIRBY J: But that is very unlikely to be so in Iran. If there is any discussion, it is likely to be in the Iranian civilization which is a very long, distinguished one, not in the Western civilization. It is a completely irrelevant matter.

MR BENNETT: Yes, but the question itself was in fairly general terms. It was not confined to Western - - -

GUMMOW J: They do not look on Alexander the Great as much of a hero in Iran, I would have thought.

MR BENNETT: Yes, that may well be so. The question, while rambling and badly formed, is at least open ended. It is not confined to Western culture.

HEYDON J: Mr Solicitor, there is another problem with the reasoning. Mr Raphael assembled, at 46 and 47, various examples of wit and parody. I mean, it does give an impression of nonchalance and excessive facetiousness in approaching the task which gives some underpinning to the idea that there was a constructive failure to exercise jurisdiction.

MR BENNETT: Your Honour, most of those are neither attempts at dry wit nor parody. Take the first one, the allegation made was that there was a penalty - - -

HEYDON J: It is a sarcastic remark.

MR BENNETT: Yes.

HEYDON J: That is an attempt at some form of humour which is misplaced.

MR BENNETT: Well, it is using hyperbole to make a valid, legitimate point that the statement can hardly be true because one would have expected it to have been heard of. I see I have a red light. I do not know if your Honours – perhaps I should ask for an extension of time.

GUMMOW J: Just carry on, Mr Solicitor.

MR BENNETT: If the Court pleases. The first one is a perfectly legitimate comment which one is entitled to make as a piece of hyperbole. The second one is not humorous or put in humorous terms - - -

HEYDON J: “[G]iving the lad a bit of a hiding”.

MR BENNETT: Your Honour, it is a legitimate expression to use in relation to - the Tribunal is endeavouring to say this is not a major, serious piece of persecution and so it puts it in language which downplays it a little. That is all that is done there. The next one does not contain any humour. He says:

In the great scheme of things –

and there probably should be a comma there –

a beating or two from one’s father is very harsh, but the Applicant also described a man who was sick and old, and who has not beaten him again since –

The next one, it is a form of ellipsis which perhaps might be regarded as bad taste, but it is not an attempt at parody or humour; it is a legitimate comment in relation to what one would have expected someone to have learnt. The next one, I do not understand why it is in the list. There is nothing there which is suggestive of humour or parody in any way. The next one is a fairly obvious statement in the context of allegations about the authorities which the Tribunal rejects, and one of the reasons for rejecting is that it only seems to have been directed against one person and the obvious comment is made. It is not necessarily humorous or an example of parody. The last one, again, there is nothing in that redolent of humour or suggestive of humour or parody in any way.

HEYDON J: There is a certain amount of sneering in it, is there not?

MR BENNETT: It is not really sneering; it is expressing surprise at the consistency of evidence. Tribunals often when they reject evidence do so on the basis of too much consistency rather than too little and there are examples of that one can think of in courts every day.

HEYDON J: I am responsible, Mr Solicitor, for you having got the longest extension of time I have ever seen in this Court. Is there anything more?

MR BENNETT: Well, for those reasons, your Honour, we submit this is not a case for special leave.

GUMMOW J: Yes, thank you Mr Solicitor. We do not need to trouble you in reply, Mr Barrett. There will be a grant of special leave but you should bear in mind two things. One is the necessity to include in the record any transcript materials that you said were not there already and the second is some attention should be given to the grounds of appeal.

MR BARRETT: Yes.

GUMMOW J: Subject to that then, there will be a grant of special leave in this matter. It will be a, what, half-day matter?

MR BARRETT: I would think so.

MR BENNETT: I think possibly more, your Honour. Closer to a day, I would think.

GUMMOW J: Possibly more. Yes, all right. Thank you.

AT 10.37 AM THE MATTER WAS CONCLUDED