Applicant P85-2002 v MIMIA

[2004] HCATrans 265

[2004] HCATrans 265

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P85 of 2002

B e t w e e n -

APPLICANT P85/2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 6 AUGUST 2004, AT 11.31 AM

Copyright in the High Court of Australia

MS L.B. PRICE:   May it please your Honours, I appear for the respondent.  (instructed by the Australian Government Solicitor)

McHUGH J:   Yes.

MS PRICE:   I understand there is no appearance for the applicant and the matter was to be determined on the papers.

McHUGH J:   The Court was informed in this matter that there was to be an application for adjournment, that counsel had been or was likely to be briefed, but was not in a position to argue the case today.

MR J.L. CAMERON:   Your Honour, I became aware late Friday afternoon that there were three matters in which applicants for special leave today were unrepresented.  I took them home over the weekend.  It seemed to me that in this matter it did raise a question for special leave but my commitments for this week did not enable me to prepare it.

If the matter could be stood over and if the applicant wished to be represented I would be prepared to put the papers in the proper order and appear on the matter if an appearance were necessary, but I have no instructions to appear today and no instructions to apply for an adjournment and that is why I am not robed.

McHUGH J:   There are some worrying aspects of the case.  Although there is much to be said against your client’s case, certain parts of the reasoning of the Tribunal and Justice Lee concerning the applicant not changing his behaviour or conducting himself so not to attract the attention of the authorities sounds perilously close to the sorts of criticism that this Court made of such reasoning in S395 ‑ ‑ ‑

MR CAMERON:   That is precisely the point, your Honour, and I would take your Honours to the bottom of page 10 and the top of page 11 of the application book.  If you substitute for the word “apostate” the word “homosexual”, it would seem that that statement by his Honour which was upheld by the Full Court could not stand in the light of what fell from this Court in S395/2002 and that would be the main special leave issue which I would seek to agitate if I were instructed by the applicant.

McHUGH J:   Part of the problem you have, I think, is that they seem to be raised for the first time during the appeal process, but I will hear what Ms Price says about it, Dr Cameron.

MS PRICE:   Your Honours, the respondent does oppose the adjournment application on the basis that even looking at S395 the circumstances here indicate that the Tribunal did not do what the Court was critical of, of the Tribunal, in S395.  It did turn its mind to the personal circumstances of the applicant in this case.  It looked particularly to the remote chance of the applicant changing his religion, given that he had been talking about this for some nine years and had had ample opportunity in that time to change religion, and on the personal circumstances of the applicant, the Tribunal considered that there was no more than a remote chance that changing religion would occur and that there would subsequently be some real risk of persecution in Iran.

CALLINAN J:   I have something of a problem about that.  I was not sure that what was being said was that he should have taken some overt step and made some kind of an announcement or something about converting.  I do not know whether that was necessary.  It might be something one may make a conversion perhaps simply in one’s mind.  I was not sure what the courts below were getting at when they said that.  In other words, the only problem – there may not be just one problem ‑ one that has already been referred to – there may be another problem about the matter, that is, as to what was held he should have done in relation to conversion.

McHUGH J:   Justice Lee said that in the end the Tribunal addressed the correct issue, namely, whether there were any overt signs of apostasy that may bring the applicant under notice of religious authorities and therefore present him with a risk of harm.

CALLINAN J:   There may well be two problems – I am not saying there are or they are not resolvable ‑ ‑ ‑

MS PRICE:   Your Honours, in our submission, what the Tribunal’s decision turned on was the past history of the applicant which was that he had spent some nine years or so, certainly of a view that he would change his religion, taking no steps to do so.

CALLINAN J:   What was he supposed he do?  How was he supposed ‑ ‑ ‑

MS PRICE:   On that past history, your Honours, there was no real chance of persecution.

CALLINAN J:   What would he do in Iran by way of changing his religion?  What, would he put an announcement in the newspaper or something?  It would be a pretty dangerous thing to do.

MS PRICE:   I suspect not, your Honour.  It would be more approaching one of the minority religious groups and attempting to join that congregation, and then there would certainly be a question of whether as a result of that ‑ ‑ ‑

CALLINAN J:   Was there any evidence that there were congregations and that it would be safe to approach them?

MS PRICE:   Not that I am aware of, your Honour, no.

CALLINAN J:   No.

MS PRICE:   In fact, he had simply done nothing by way of attempting to change religion at all and that was the basis of the Tribunal’s finding of a remote chance of persecution.

McHUGH J:   The point is that this case is of great importance to the applicant.  There are some worrying aspects of the case.  Justice Lee was very critical of – he made some significant criticisms of the Tribunal’s reasoning process, and I think the interest of justice requires that Dr Cameron be given an opportunity to look at the matter.  It may well be that the application will fail, but the Court has had great assistance from Dr Cameron in these pro bono roles that he has adopted over the course of time and I do not think we should shut him out from having a look at this case to see whether there is an argument that can be put in favour of this applicant.  So unless you have anything further, Ms Price, I think the matter should be stood over for a very short period to give Dr Cameron ‑ ‑ ‑

MS PRICE:   Yes, thank you, your Honour.

McHUGH J:   Dr Cameron, of course, you may not even get instructions in the matter but if you did how long do you think you would need to look at the matter?

MR CAMERON:    There may be a few problems.  I would have to arrange an interpreter myself in order to communicate with the applicant but I would think that 21 days I could communicate with him, get instructions and to have the papers in proper form.

McHUGH J:   Within 21 days?

MR CAMERON:    Within 21 days.  I do have another matter which I think will probably be heard in the October session, so if the matter could, in fact, be heard in the October session, but I could have the papers ready within 21 days.

McHUGH J:   Well, there is already a provisional list drawn up, but some of us may just have to sit for a bit longer in the Perth sittings.  We will adjourn this to the Perth sittings.  I will not make any direction about 21 days, but you will do everything you can to get the papers in proper form within that time. 

MR CAMERON:   I will do so, your Honour. 

McHUGH J:   Thank you, Dr Cameron.  The order that the Court makes is that this matter be adjourned for hearing at the Perth sittings of the Court. 

AT 11.41 AM THE MATTER WAS ADJOURNED