Applicant NAEP of 2002 v MIMIA

[2003] HCATrans 470

[2003] HCATrans 470

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S502 of 2002

B e t w e e n -

APPLICANT NAEP OF 2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 2003, AT 1.28 PM

Copyright in the High Court of Australia

NAEP OF 2002 appeared in person.

MR J.D. SMITH:   May it please the Court, I appear for the respondent.  (instructed by Sparke Helmore Solicitors)

GHADA MAJZOUB, affirmed as interpreter:

KIRBY J:   Thank you very much.  You have the opportunity to speak to the Court.  We have already read the written submissions but this is to give you an interval of 20 minutes to address the Court.  Do you understand that?

NAEP OF 2002:   Yes, your Honour.

KIRBY J:   Do you wish to speak in the Arabic language first or do you wish to speak in English?

NAEP OF 2002:   I wish to speak in English, your Honour.

KIRBY J:   Very well, you go ahead and you speak to us but you are subject to a time limit which begins now.

NAEP OF 2002:   Your Honour, this is an application for special leave to appeal to the High Court. I also…..section 75 from the Commonwealth Constitution.

KIRBY J:   You have to speak up or I will not hear you.

NAEP OF 2002:    The problem – I need to drink a lot of water.

KIRBY J:   Take a clean glass and just have a glass of water.  Just relax; nothing terrible is going to happen in your presentation.

NAEP OF 2002:    I have a high dosage of medication so I need to drink always.  This case arises from the failure of the Refugee Review Tribunal to afford the applicant procedural fairness.  Before I start, I wish that your Honour allow me and take a look of CT scan of my head because ‑ ‑ ‑

KIRBY J:   I do not think that would help for three reasons.  First, we cannot receive new evidence - at least we could not in the appeal, it has to be dealt with on the record.  Secondly, I am not a doctor so I will not understand it.  Thirdly, and most importantly, it was an agreed fact that you had suffered a brain injury.  So that was agreed.  Is that correct, Mr Smith?

MR SMITH:   It is, your Honour.

KIRBY J:   The purpose of the proceedings in the Federal Court – it was agreed that you had suffered a brain injury, so we start from that point.

NAEP OF 2002:    Thank you very much.  That is one of the most important, to come to the agreed part from the application before Lindgren J…..but before I start with Lindgren J’s judgment, these facts, I think it should be brought, which is I have the injury just less than six months before the hearing.

I called the Refugee Review Tribunal’s reception to delay my case and I explained my medical situation and financial and I have no one to represent me and I have no possibility to write my claims.  They said, “No, you come at the Tribunal and they maybe review you twice or three times or as is necessary”.  On the day of the hearing, 10 January, I was on heavy medication, which is not only painkiller, it deals with the activity in the brain – the activity centre in the brain – and I should point to the medical report, page 67 from the application book.

Because of the injury and this heavy medication I was most of all…..persistent until this time.  I feel dizzy always with persistent headaches, poor concentration.  So I think that all this part were dealt with before Lindgren J and the respondent concede on this agreed part which your Honour mentioned at the beginning.  So it was agreed between the parties that I was, at the time of the hearing, having this disability.

Here I come to Justice Lindgren’s decision and the most important document is the supplementary submission, which I filed now four days.  The appeal book and my summary of argument, which I wish that your Honour appreciate my English or my ability to present myself.

KIRBY J:   Your English is quite good, very good in fact.

NAEP OF 2002:    The third thing which is the medical report.  On these materials I rely and I appealed from the Full Federal Court decision where the Full Federal Court erred in finding no appealable error in Lindgren J’s judgment.  I am here to mention these errors in Justice Lindgren’s decision.

In my view, and I hope this is a correct point, Lindgren J erred in three appealable errors and I will deal with each of them separate.  The first one is from paragraph 1, page 31, from Lindgren J decision.  His Honour stated:

I do not accept that the Tribunal was on notice that the applicant was or might have been suffering from a disability.

That is the first conclusion Lindgren J reached.

This contained an error on the face of the record where, on the additional file which I filed 48 hours in time, there is an extract of the transcript of the Refugee Review Tribunal hearing.  That extract affirmed that I mentioned now three months in my weak English ability, I said at the time of the hearing, “Now three months I had operation in the head in the brain”.  This extract is filed before the Registry two days ago.  So, first conclusion reached is an error on the face of the record, that is first point.  An error also if I…..that in the Tribunal should be in notice that I have a brain damage to prove that I received procedural fairness.  In other words, I mean Lindgren J should ask if I indeed had this disability at the time of the hearing, that will decide if I received procedural fairness or not, not whether the Tribunal knew or did not.  That is my point, your Honour.

A second error is from Lindgren J’s decision, paragraph 33 on application book page 32.  If your Honour take a look, Lindgren J stated that:

The medical evidence does not establish or suggest a potential link between the applicant’s brain injury and brain damage on the one hand and his manner of giving evidence before the Tribunal on 10 January 2002 on the other.

That is the second wrong conclusion Lindgren J reached.

My explanation that the agreed facts by the respondent that I had, at the time of the hearing – and here I should look to the agreed facts at page 25 from the appeal book – which they are, from paragraph 15 ‑ ‑ ‑

KIRBY J:   Page 25?

NAEP of 2002:    It is page 26 at the beginning of the page.  They agreed between the parties – end of 25 and start of 26:

(a)         the applicant suffered [on 15 July 2001] a depressed and comminuted right parieto‑occipital skull fracture;

I do not know medical terms -

(b)the fracture had lacerated the dura of the skull, as well as the underlying brain;

(c)the applicant . . . complained of symptoms including dizziness, mild ataxia, headaches, twitching around the lips and –

as I was, according to the medical report, my balance was still abnormal, so these parts with (d) which mentioned the CT scan was done and showed “visible damage to the underlying brain”.  The conclusion was that:

the applicant . . . ha[d] suffered permanent impairment.

All this proves that at the time of the hearing I had these symptoms, which is a disability.

The questions which Lindgren J should ask – not if there is any link between giving evidence and my symptom or my brain damage.  The question should be if there is indeed any possibility to disable, to present and run his case.  What I mean in other words, if the applicant has this disability, is he able to present and run his case or to answer the questions well or to know of the meaning of what they are talking about.  So that, I think, the most appropriate question should be.

The third paragraph which again Justice Lindgren erred, his Honour stated at paragraph 34, page 32:

Accordingly, even if the applicant’s brain injury and brain damage did affect the manner in which he gave evidence, that consideration was irrelevant to the Tribunal’s response to his claims and its rejection of them.  There has been no suggestion put to me that, but for his brain injury and brain damage, the applicant’s claims themselves would have been different.

I think that the outcome of the case was not open before Lindgren J to give this decision.  In other words, he said that even if it affected the applicant giving evidence, it will not change the outcome of the case.  So how it was open, such decision, to Lindgren J?

KIRBY J:   Can I explain to you a problem, and perhaps the interpreter should interpret this to the applicant.  This Court is not a general court of appeal.  It is the highest Court in Australia and it can only deal with a certain number of appeals, which therefore have to be special.  I know that this case is very special to you but you have to show that there is something special which is of general importance or general significance.  We are not here simply to review every factual decision of the Federal Court.  That is not our constitutional function.

NAEP OF 2002:    Your Honour, I understood exactly what your Honour said, but also I noted that your Honour said in previous cases that such decision of the Refugee Review Tribunal could involve lives.

KIRBY J:   I realise that.

NAEP OF 2002:    Your Honour, we are talking about the fundamental application of the natural justice and this could affect me very much because this is the only Court who could give that decision or give a life to a person.  I still believe that I should be heard…..

The second reason, that the Migration Act 1958, section 425, they said that - and your Honour mentioned it again, that the Tribunal must - by section 425 of the Act, the Tribunal is obliged to conduct a hearing at which the applicant has an opportunity to be heard, and I have an opportunity. Did I have this opportunity until now? I lost six years of my life.

KIRBY J:   Justice Lindgren started from the principle that you had suffered brain injury but he concluded that it had not been established that there was any link between that fact and any inability of you to put your case as you wanted to put it to the Tribunal.

NAEP OF 2002:    That would be right.  If it was not, the Tribunal works by itself because if we read the Tribunal’s decision we will observe many times how the Tribunal described the applicant.  Once, the Tribunal mentioned the applicant as “ramblingly” talking.  The other one, the Tribunal mentioned the applicant was “very rambling and disjointed style”.

Here I should mention and I point to the third attachment of additional file, there is a letter from my psychologist to the Refugee Health Service and “To Whom it may concern”, urging them to find me a psychologist in weekly basis.  The psychologist diagnosed what I have as an “adjustment disorder” and if we look to the Tribunal decision we will see exactly identifying what is the meaning of adjustment disorder, “very rambling and disjointed style”, he was talking unstoppable, he was using this style “to be evasive” and to avoid answering the question.  Accordingly, I do not accept that the applicant “is a witness of truth”, which is the main reason why the Tribunal rejected my claims, because I was ‑ ‑ ‑

KIRBY J:   Yes, but the problem is your application for refugee status was itself delayed.  You took a long time to make a claim, which is itself unusual.  Then you changed your story and the Tribunal disbelieved you and the judge of the Federal Court did not accept that any brain injury had caused the problem, if any, that you had in the Tribunal.  The medical evidence said you only suffer from mild ataxia and headaches and dizziness and presenting before us you appear, as I believe you are, a very intelligent, educated man and you do not appear to have any real disability in expressing yourself.

NAEP OF 2002:    Before the Tribunal I think that my way of giving evidence or the way the Tribunal described me - and if your Honour just take a look in the Tribunal decision at page 8, because from the end of page 7 the Tribunal stated that ‑ ‑ ‑

KIRBY J:   They say you presented in a “rambling and disjointed style of giving evidence”, at the very top of the page.

NAEP OF 2002:    That is right, the Tribunal described me as a person who is hesitating or evasive or does not trust himself or does not want to say the truth.  By the next page the Tribunal described me as a man whose behaviour affords priding himself and taking control of his language.  It was in contradiction in the decision of the Refugee Review Tribunal.

KIRBY J:   Yes, but these are merely ‑ ‑ ‑

NAEP OF 2002:    It appeared that the applicant was abnormal.  I am sorry, I ‑ ‑ ‑

KIRBY J:   These are merely factual matters that would not engage the final Court of the country.  We are here as a supervisor over the whole system and refugee cases are just a part of what we do.  You have been sitting in Court and you have seen all of the work that we do.  We cannot take purely factual disputes of this kind.

NAEP OF 2002:    I do understand, your Honour, but because that is the only Court who can deal with procedural fairness.  At the Federal Court and Full Federal Court ‑ even I point to the Full Federal Court decision where they understand some but they said that dramatically the law limit the Full Federal Court from interfering in the way to interfere in such decision.  It means that there is no court who can give me the justice because of the procedural fairness, unless the High Court, because it is a very important matter for me, for my life, or for the way I am living or the ill-treatment I am living in, so there is no way or no place to appeal and I could face a deportation or detention, which I will never support or resist.  I do not know what is hope still in my life.  That is one.

Second, I filed in the additional file nearly 16 pages that was related to the first accident I had in Australia, ninth month.  I had severe chemical hand burn.  The extended of the visa was the policy of the Department of Immigration, they send me the visa just after one year, that extension.  The other extension, even though they did not reply to it until I went to the

Department, so all it was not my fault, and it is unfair to lose my life where I do not see that I had a choice of any of it.

KIRBY J:   Yes, we understand the importance of the matter, the seriousness of it and what you have to say.  Your time has expired, I am afraid.  Thank you very much.

NAEP OF 2002:    Thank you.

KIRBY J:   The Court does not need your assistance, Mr Smith.

The applicant challenges the decision of the Full Court of the Federal Court of Australia.  He seeks special leave to appeal to this Court against that court’s judgment.  That court unanimously found no error in the decision of the primary judge of the Federal Court, Justice Lindgren.  In turn, Justice Lindgren refused to grant judicial review to the decision of the Refugee Review Tribunal.  That Tribunal had refused to uphold a challenge by the applicant to the decision of the delegate of the Minister refusing the applicant a visa on the basis of refugee status.

In the Federal Court the claim failed because the applicant did not establish the necessary factual basis for his primary argument.  It was accepted in the Federal Court by Justice Lindgren that the applicant had suffered a brain injury in July 2001.  However, his Honour rejected the suggestion that the medical evidence established a potential link between the brain injury and any brain damage affecting the evidence that the applicant had given before the Tribunal.

The applicant’s contest about the correctness of that finding is not a matter which attracts special leave to appeal to this Court.  We would observe that although the applicant had, at his request, an interpreter present in the Court today, he did not in general require the assistance of the interpreter.  He made submissions in English.  His submissions were coherent.  They were apparently unaffected by any want of intelligence or mental capacity.  Indeed, the applicant made very clear submissions and he made his position entirely clear to the Court.

We are not convinced that any error which engages the appellate jurisdiction of this Court has been established.  Accordingly, the application for special leave to appeal must be refused.

Does the Minister ask for costs?

MR SMITH:   Yes, he does, your Honour.

KIRBY J:   The Minister asking for costs, the ordinary rule must apply.  The application is refused and the applicant must pay the Minister’s costs.

Adjourn the Court until Tuesday, 18 November in Sydney.

AT 1.58 PM THE MATTER WAS CONCLUDED