NANM of 2002 & Anor v MIMIA [2004] HCATrans 80 (16 March 2004)

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NANM of 2002 & Anor v MIMIA [2004] HCATrans 80 (16 March 2004)

Last Updated: 7 April 2004

[2004] HCATrans 080

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S287 of 2003

B e t w e e n -

NANM and NANN OF 2002

Applicants

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

AT SYDNEY ON TUESDAY, 16 MARCH 2004, AT 2.35 PM

Copyright in the High Court of Australia

NANM and NANN OF 2002 appeared in person.

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

ABRAR AHMED CHOWDHURY, affirmed as interpreter:

GUMMOW J: Thank you.

KIRBY J: You are interpreting from the Bengali language into the English language, and the English language into the Bengali language?

THE INTERPRETER: Yes, your Honour.

GUMMOW J: Yes, go back to the Bar table, if you would. The applicant appears for himself, is that correct?

THE INTERPRETER: Yes, your Honour.

GUMMOW J: And that goes for both of the applicants?

THE INTERPRETER: Yes, your Honour.

GUMMOW J: Yes, thank you. Mr Interpreter, would you ask the applicants if there is anything they wish to add to their written submissions, which we have received and studied? Perhaps if you come to the centre, so that the interpreter can then be picked up on the other microphone.

NANM OF 2002 (through interpreter): Whatever I have given in my written submission, I want to add a few more things to that. I like to request this honourable Court to consider my appeal because I feel that, according to the Migration Act 1958, the Tribunal did not consider my case appropriately. Later on, the Full Federal Court also did not accept my appeal. I feel that during the RRT decision they have taken the decision based on some agency reports instead of considering the true facts of my case, and I feel that I did not receive an appropriate hearing in the RRT. I have given in detail these facts in my summary of argument. I request once again to look into the facts and to consider my appeal once again.

GUMMOW J: Thank you.

KIRBY J: You understand that we cannot re-decide the case on its merits. We are a Court with limited functions.

NANM OF 2002 (through interpreter): Yes, your Honour, I understand that.

KIRBY J: So far as the Tribunal was concerned, and the Federal Court, they could only decide the matter on the basis of the evidence put before them. You understand that?

NANM OF 2002 (through interpreter): Yes, your Honour.

KIRBY J: What is, in your own words, your main complaint concerning the fairness of the procedure in the Tribunal, which would be one of the only bases on which we could intervene?

NANM OF 2002 (through interpreter): It is just that documents I have provided in the RRT – they did not look into the documents properly and they have made their decision based on the country information which was before them.

KIRBY J: The documents relating to the country information were available to you.

NANM OF 2002 (through interpreter): I did not have those documents beforehand and I did not get those documents before I went to the interview.

KIRBY J: Perhaps we had better hear what Mr Bromwich says about that. That is your Muin point, as I understand it.

NANM OF 2002 (through interpreter): Yes, your Honour, I feel that way.

KIRBY J: Yes. Thank you.

GUMMOW J: Does the first applicant’s wife wish to add anything to what has just been said?

NANN OF 2002 (through interpreter): I do not have anything else to add to that. Whatever my husband said is true.

GUMMOW J: Thank you. Yes, Mr Bromwich.

MR BROMWICH: Your Honours, it is difficult to develop a complete answer to the Muin and Lie point, because it is not fully developed by the applicant, but insofar as there were key points of country information - - -

GUMMOW J: Was it agitated in the Full Court of the Federal Court?

MR BROMWICH: It was agitated in the sense that it was raised and it was found not to be made out, factually, by their Honours.

GUMMOW J: Where do they do that?

KIRBY J: Also Justice Madgwick, at first instance, too.

MR BROMWICH: Justice Madgwick addressed - - -

KIRBY J: But sometimes people who are not represented know they have some sort of a point of unfairness, but they do not address it in the way they would, if they were legally represented.

MR BROMWICH: I accept that, your Honour, and I can take your Honours to some points.

KIRBY J: Mr Interpreter, please translate this. There is no point in him sitting here not knowing what is going on. This is Australia.

MR BROMWICH: And I will slow down.

KIRBY J: He would not know what Muin and Lie are all about. Somebody has obviously seen a Muin and Lie point. Muin and Lie was about the use by the Tribunal of country information which was not available to the applicant and that seems to have been agitated, but I do not quite understand. It is lost in this mountain of verbiage.

MR BROMWICH: Paragraph 21 of the Full Court’s decision, at page 43 in the application book, indicates a reference to Muin. There was never any identification, much less any evidence, which addressed – picking up the Muin and Lie point – what part of the Part B documents of the delegate’s decision had been not referred to, that the applicant would have had reference to.

KIRBY J: Does Justice Madgwick refer to the issue?

MR BROMWICH: I had not thought that was the point agitated before his Honour, and, therefore, I did not understand that it had been.

GUMMOW J: It seems to have been in the notice of appeal to the Full Court, does it? Obviously, it was not written by the applicant.

MR BROMWICH: Your Honours, Justice Madgwick’s decision was handed down on 30 October. The decision of this Court in Muin was somewhat earlier.

GUMMOW J: It was 8 August.

MR BROMWICH: Yes, but it took a little while for Muin and Lie points to filter through, and I do not think it filtered through until the Full Court stage.

GUMMOW J: No, I think that is probably right.

MR BROMWICH: When they did filter through, they tended to filter through somewhat in a template fashion, as they did in this one.

GUMMOW J: Yes, as I have seen.

MR BROMWICH: What I was going to say, insofar as there was reference to country information, the key country information was raised at the hearing and brought to the notice of the applicant at the hearing.

KIRBY J: That related to the fall of the previous government – was that the Awami League government – and the substitution of a different government, which, it was thought, was not going to be so unsympathetic to the applicant, as he claims to be a liberal democrat in Bangladesh.

MR BROMWICH: Certainly, there was the reference to the change of government and the Awami League having lost power. That has been common to a number of these sorts of cases. There was also specific reference to Department of Foreign Affairs and Trade information about the new nationalist government, the Bangladeshi National Party, being “neutral” in its attitude towards the applicant’s party, the Jatiya Party. That is referred to in the middle of page 12.

KIRBY J: The applicant denies that in his written submissions, but we have no way of retrying that matter or deciding it, that is a factual question. As far as I am concerned, the only matter I am interested is the Muin point. If there is procedural unfairness, there is jurisdictional error. If there is jurisdictional error, this Court can intervene. It is only a question of whether there was a real issue concerning the availability to the Tribunal of country information which was not available to the present applicants.

MR BROMWICH: With respect, your Honour, the Muin and Lie point is without substance, as I read the Tribunal’s decision, because the key pieces of country information were drawn to his attention during the course of the hearing.

KIRBY J: Where do they say that? Do they say that in their reasons, in the Tribunal?

MR BROMWICH: No, your Honours. The different passages of country information are quoted and then the burden of those quotes are put to the applicant. For example, at the bottom of page 8 and through to the top of page 9, there is a quotation from the Australian High Commission:

the Australian High Commission was asked “What is the attitude of the BNP towards Ershad’s Jatiyo Party?” In response the High Commission replied –

and there is a reference, in the first full paragraph quoted at the top of page 9, to neutrality. Then you look in the middle of page 12, and you can see that the Tribunal expressly referred to:

The advice from the Australian authorities in Bangladesh was that the BNP was neutral - - -

KIRBY J: Do you know from other cases what the practice is, following Muin and Lie, concerning the making available of country information?

MR BROMWICH: Other cases in which it is challenged, your Honour? There has been a number of cases in which applicants have succeeded - - -

KIRBY J: It depends on the particular Tribunal.

MR BROMWICH: Typically, an applicant needs to say or point to something. They do not have to establish that it would have had to make a difference, necessarily – the Stead line is not crossed – but there is a need to at least say, “Had I known this material was not going to be taken into account, I would have brought it to attention”.

KIRBY J: One would hope that the Tribunal would have a system whereby they put to a person affected country information that might affect the outcome of the determination and upon which that person should first be heard.

MR BROMWICH: I have certainly seen examples of section 424A notices being given, probably going beyond that legislative requirement of 424A, in that it goes to general country information, whereas the section
suggests you do not have to go that far, raising particular points. That has been particularly so in some of the Falun Gong cases, but also some of the others, and there have been some Full Federal Court decisions dealing with issues like documentary fraud, and that like. For example, in this particular case, which is not always the case, there has been reference to the prevalence of document fraud in Bangladesh, and that was expressly raised at the hearing.

KIRBY J: It is possibly significant that the issue was not dealt with by Justice Madgwick, which rather suggests that, notwithstanding getting the reasons of the Tribunal, if he had them translated, the applicants did not raise a point at that stage before Justice Madgwick concerning the availability to him of the country information on which the Tribunal had acted in accordance with its reasons.

MR BROMWICH: That is so, your Honour, but also additionally, in my experience, Justice Madgwick is not shy of raising a point if he thinks one is lying there, although it has not been raised by an applicant.

KIRBY J: Well, so the judges of the Federal Court should be, if people are unrepresented. It is easy for us, Mr Bromwich.

MR BROMWICH: Yes. I am making the point that it was Justice Madgwick here, who would have been aware of Muin and Lie – it was some six weeks later. The point I am really making, your Honours, in a slightly long-winded fashion, is that this is a case in which more has been put by way of country information than sometimes occurs. This is not a good vehicle to be raising the Muin and Lie point, because it has been expressly raised with the applicant in the Tribunal reasons. Your Honours, the respondent’s submission is that this is not a case in which there has been any breach of the Muin and Lie principles. Unless I can be of any further assistance to your Honours.

GUMMOW J: Thank you. Mr Interpreter, would you ask the first applicant if there is anything he wants to say in response.

NANM OF 2002 (through interpreter): No, I do not have anything else to add, your Honour.

KIRBY J: You heard Mr Bromwich, the barrister, saying that you were on notice of the country material that was put before the Tribunal.

NANM OF 2002 (through interpreter): No, I did not get to hear all the country information.

KIRBY J: You did not raise that when the matter first went to the Federal Court before Justice Madgwick.

NANM OF 2002 (through interpreter): I was not aware of this fact and I did not raise this issue because I did not think it is relevant. As I do not have any barrister representing, I could not - - -

KIRBY J: Were you given a copy of the Tribunal’s reasons?

NANM OF 2002 (through interpreter): Yes, your Honour.

GUMMOW J: He had an adviser, did he not, at the time in the Tribunal?

NANM OF 2002 (through interpreter): Yes, your Honour.

KIRBY J: Thank you.

GUMMOW J: The applicants for special leave would seek to re-agitate in this Court adverse determinations by the Refugee Review Tribunal of various matters of fact. A complaint also was made to the Full Court of the Federal Court respecting the holding of this Court in Muin and Lie [2002] HCA 30; (2002) 76 ALJR 966. However, we are not satisfied that in this Court such a complaint has sufficient prospects of success to warrant a grant of special leave. Accordingly, special leave is refused with costs.

AT 2.54 PM THE MATTER WAS CONCLUDED