Applicant P63-2001 v MIMA

[2002] HCATrans 420

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P63 of 2001

B e t w e e n -

APPLICANT P63/2001

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 24 OCTOBER 2002, AT 12.26 PM

Copyright in the High Court of Australia

MR R.K. O’CONNOR, QC:   Your Honours, I appear for the applicant.  (instructed by the applicant)

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

GLEESON CJ:   Mr O’Connor, will you just give us a moment to refresh our memory in relation to the supplementary summary of argument that you have filed, and then there is a further document that has come in called “Further Point in Argument”.  I just want to have a look at those.

MR O’CONNOR:   Yes, your Honours.

GLEESON CJ:   What was the precise nature of the persecution alleged?

MR O’CONNOR:   As alleged by the applicant, it was that he had political beliefs and he was beaten by the security police when they found him three years after he wrote a letter of complaint to the President.  That letter arose out of the fact that he was denied access to a tertiary institution for the undertaking of a midshipman’s course, and the reason for that denial was there was a 40 per cent quota imposed on that course, where 40 per cent was available to members of the family who were martyrs in the Iran‑Iraq war, and he was not in that group.  So that restricted his opportunity to do the tertiary midshipman’s course.

Your Honour, with regard to the claim of beating and mistreatment of him, that was disbelieved by the Tribunal, the RRT, and I readily acknowledge from the start that that does create a difficulty.  The member of the RRT said that it was so implausible that he could not be satisfied that those facts had in fact taken place.  So subject to the second point I wish to put to you, the first point is that we are left with what was accepted as evidence by the RRT.  I have set that out in my outline of argument, the summary of argument, in paragraph 3 as to the particular points of evidence which were accepted. 

Our case is that a finding that this applicant was a refugee should have been made on a different ground, one which has not been argued previously, that is that he could not gain entry to the tertiary course because of this quota.  Our submission today is that that puts him as a member of a particular social group.  We are left with the facts which are accepted and that is something which follows from what was accepted, even though it was not argued before.  Previously, the whole of the argument was on political opinion and that has been rejected because the facts underlying it were rejected by the Tribunal.

So now we seek to rely on the applicant being a refugee on another basis, that is a member of a particular social group.  Now, the social group is those persons who are nationals of Iran who did not take part in the Iran‑Iraq war, around about 1990.

HAYNE J:   Assume for the purposes of debate that that is a recognisable social group, what is the persecution of that social group that he ‑ ‑ ‑

MR O’CONNOR:   Your Honour, I was about to come to that.  The persecution is that they are discriminated against when they seek entry to a university course because this 40 per cent quota is in existence.  Now, there was evidence given, including by the applicant himself, that that was in the course of being changed.  There had been so many letters of criticism regarding that policy.  Nevertheless, there is no evidence on the papers before us that that quota system has been abolished completely.  I rely on what the then Chief Justice Mason said in Chan, that you rely on the evidence before you rather than speculate as to what the position might be when this person goes back. 

I have some authorities mentioned in my outline of argument as to what can constitute a particular social group and my submission is that this group of persons is such because it is discriminated against when it seeks admission to a university or to a tertiary course because it has this quota system; whatever the percentage now is – it was 40 per cent at the time – that operates and limits their opportunity.  Now, in this particular case, that the existence of that quota and the discriminatory effect of it was accepted by the Tribunal as being in part a reason why he was not able to gain entry. 

Now, our submission is that the discrimination does not have to be entirely based on a Convention reason as long as it is in part, that is sufficient to fall within the definition.  That is the first point, your Honours, relying upon the particular social group as a new category to make this person a refugee.

The second point is that the RRT failed to adopt proper procedure in the conduct of its hearing.  We do challenge the finding of credibility.  I did say at the start that we recognise the difficulty in this, but we say that it arose from an error of law in not adopting the proper procedures.  Now, those proper procedures are set out in the Migration Act in sections 414 and 420.  The Tribunal is required by section 414, it must review the decision of the delegate and in section 420 it spells it out further as to the manner of operation.  It must be “fair, just”, “not bound by technicalities” and “must act according to substantial justice and the merits of the case”.

In paragraph 12 of my supplementary summary of argument I have set out the errors which I submit have occurred.  There were 15 incidents there and the thrust of them is as follows, that the hearing was too rushed.  The applicant was told by both the interpreter and the RRT to answer “yes” or “no” only to the questions and to keep his answers short.  The RRT member did not ask questions in some areas yet later found against the applicant in these areas in which questions were not asked.  The applicant claims that if he had been allowed to answer in the detail he wished to do, or if questions had been asked which would have enabled him to provide information in the areas in which the RRT was unsatisfied, he would have been able to satisfy the RRT on the questions in issue.

Our submission is that in a situation like this where the Tribunal is not only the judge and the jury, it is also the examiner in‑chief and the cross‑examiner, and in the interest of fairness certain questions need to be asked, especially if there is a likelihood that findings might be made in those particular areas.  We would submit that it is a similar situation to that requiring the operation of the rule in Browne v Dunn.

GLEESON CJ:   Mr O’Connor, I am sorry to interrupt the flow of your argument, but can I take you back to your first point, that is your first supplementary point, concerning the quota system in relation to the families of people who had served in the wars.  In order to form a conclusion that a quota system of that kind was so unfair as to constitute not merely a form of discrimination but discrimination amounting to persecution, you would need to know why the quota system was introduced.  You would need to know a great deal about the circumstances that led the government to introduce such a quota system, would you not?

MR O’CONNOR:   I just assumed that it was for reasons of patriotism.

GLEESON CJ:   Who knows what the reasons may be.

MR O’CONNOR:   Yes.

GLEESON CJ:   There are quota systems like that of various kinds that operate in this country, are there not?  I am not saying in relation to precisely that but ‑ ‑ ‑

HAYNE J:   I do not know, soldier settler schemes.

GLEESON CJ:   Yes.  After World War II certainly there were university places found for returned servicemen and servicewomen.  Indeed, a lot of my contemporaries and people a little older than me in the profession came into the profession that way.

MR O’CONNOR:   That would be favourable treatment, your Honours, but I do not know whether it is the situation that people who had not served were discriminated against in that they could not get in.  That is the situation here.  There are limited places and 40 per cent go to this particular category.  We have an example here of someone who has been discriminated, and I mentioned earlier about the letters of complaint which have come in.  So it appears that there are substantially other numbers as well who are in the same position.

GLEESON CJ:   As I understand it – and my understanding may be imperfect ‑ in the United States at this moment the subject of quotas for universities and positive discrimination is a very touchy subject, but I am not sure that people who are, as it were, discriminated against by that kind of activity claim that they have been persecuted.

MR O’CONNOR:   That might merely say that they have not claimed that they are persecuted.  It could well be nevertheless the case that they are.

GLEESON CJ:   Now, you have another point concerning religion that you want to raise, as I understand it.

MR O’CONNOR:   Yes, I have just made the point on procedure, and I take it you do not wish me to say anything more.  I have spelled out in the summary as to what those particular points are.  Now, on the religion, I do not wish to proceed with that matter today.

GLEESON CJ:   Then come back to develop your point about the procedure then I suggest.

MR O’CONNOR:   With regard to religion ‑ just a short statement ‑ it has only arisen since this person, the applicant, arrived in Australia and it does amount to new evidence and Eastman’s Case I think would prevent me dealing with it ‑ ‑ ‑

GLEESON CJ:   There is another problem I was going to draw to your attention in relation to it.  We are concerned with the decision of the Tribunal and questions arise about changes in circumstances since the Tribunal’s decision.  There have been a number of cases on that subject but ‑ ‑ ‑

MR O’CONNOR:   Yes, I have today written to the applicant suggesting that he make a fresh application on the basis of the new claim of religion, but I cannot advance that any further today.

Just to complete the procedure point, your Honour, I have spelled out those 15 points in the reasons.  My paragraphs 14 to 16 deal with other matters which were adverse.  Factual findings were made without the matter having been properly raised with the applicant himself and he was not given

the opportunity to provide any information in these areas.  Where the RRT member does not reveal what is in his or her mind and especially where the applicant is an applicant in person who is not familiar with the system, apart from the language difficulties, he does not know precisely what information he needs to put before the RRT, yet the RRT does have this overriding obligation to act with fairness and justice.  They are our submissions, your Honours.

GLEESON CJ:   Just before you sit down.  I notice if you look at the page 30 of the application book, that it was argued before Justice Wilcox that “the Tribunal failed to accord a proper hearing of the review” and that there was a ground provided by section 476.  The arguments that you have put today in relation to procedure are really just an elaboration of that same point, are they not?

MR O’CONNOR:   They refer to a lot more instances.

GLEESON CJ:   I understand that.

MR O’CONNOR:   And I take it by your use of the word “elaboration” that that would cover it, yes.  There might be four or five points mentioned here by his Honour.

GLEESON CJ:   Now, you appeared before Justice Wilcox?

MR O’CONNOR:   No, I did not, your Honour.  I did provide pro bono assistance prior to the hearing and made some written submissions to his Honour but I did not actually appear at the hearing.

GLEESON CJ:   I see.  I am just trying to understand what he was talking about on page 26.

MR O’CONNOR:   Page 26.  Yes:

The applicant asked me to consider Mr O’Connor’s submission in determining his application for review.

I did prepare it and submit it, but did not appear myself.

GLEESON CJ:   Thank you, Mr O’Connor.  We do not need to hear you, Mr Tsaknis.

In this matter we have considered the detailed written submissions and supplementary submissions made on behalf of the applicant by Mr O’Connor, QC, elaborated in oral argument.  Having considered those submissions, we have come to the conclusion that there are insufficient prospects of success of an appeal to warrant a grant of special leave to appeal.  The application for that reason is refused with costs.

AT 12.43 PM THE MATTER WAS CONCLUDED