Applicants S16-2002 v MIMIA

[2002] HCATrans 477

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S16 of 2002

B e t w e e n -

APPLICANTS S16/2002

Applicants

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 15 NOVEMBER 2002, AT 2.00 PM

Copyright in the High Court of Australia

MR N. PERRAM:   In this matter, I appear for the applicants.  (instructed by Jackson Smith)

MS S.J. MAHARAJ:   I appear for the respondent, your Honours.  (instructed by Sparke Helmore)

GLEESON CJ:   Yes Ms Maharaj.  Yes, Mr Perram.

MR PERRAM:   One housekeeping matter, your Honours.  There are two applicants; the second applicant is the wife of the first applicant.  Although I announced my appearance for the applicants, in fact I do not appear for the second applicant; she has abandoned her application and left the country.

If I could move immediately to the application.  It is apparent that the Tribunal did not accept the applicant’s account because he did not believe him and that presents a number of obstacles to the application.  It did so because it believed that his evidence was false.  There are a number of matters which led the Tribunal to the view that the evidence which had been put before it was false.  These included the fact that the Tribunal believed it was implausible that other family members who were involved, and the other family who was involved, in the feud would have informed the applicant of the existence of the feud; it was also disbelieved because of the fact that he had returned to Albania on a number of occasions; he was also disbelieved because of the explanation he gave about his mother’s status as an invalid was thought to be implausible and he was also disbelieved because the fact was that he had not been harmed for a considerable period of time.  They were all matters which undoubtedly operated on the Tribunal and led them, in part, to the conclusion that his evidence ought to be rejected.

CALLINAN J:   Did he travel on his own genuine passport?

MR PERRAM:   To Australia?

CALLINAN J:   Yes.

MR PERRAM:   No, he did not; he travelled on a false passport.

CALLINAN J:   And then produced his genuine passport.

MR PERRAM:   He subsequently produced the genuine passport.  That was a matter ‑ ‑ ‑

CALLINAN J:   Did he explain why he travelled on a false passport?

MR PERRAM:   There is no evidence about that, your Honour.  They were the matters which led the Tribunal to the view that his evidence ought not to be accepted.  Against that the applicant put up a number of documents which were said to be corroborative of his account and the first instance judge was inclined to view that documentary evidence as corroborative; the Full Court and the Tribunal discounted the evidence partially on the basis that it did not establish the existence of the blood feud.  The Tribunal analysed some of the documents on that basis. In my submission, that was the wrong approach.  The documents were only ever put forward as a corroborative version.

The documents were rejected for two reasons, and it has to be conceded it was for two reasons, not for one.  The first was that he had travelled on a false passport and that indicated some propensity on his part to the use of forged documents.  The second basis upon which the documents were rejected was that document forgery in Albania was endemic, if I may term it that way.  An essential step in the rejection of the applicant’s case was the rejection of the corroborative material.  An essential step in the rejection of the corroborative material was the conclusion that the documents which emanated from Albania were forged documents.  There was no evidence that all documents emanating from Albania were forged.  There was evidence that undoubtedly document forgery in Albania was rife but there was no evidence that all documents emanating from Albania were forged, and therefore it was inappropriate for the Tribunal to conclude as it did, that all of the documents produced by the applicant were themselves forgery.  There was no evidence which could support the conclusion that all the documents necessarily were forgeries.

Two things flow from that, at two different levels.  The first is that when dealing with the question of whether the Tribunal was correct to conclude that all the documents were forged, whether one can unpick the conclusion that he had entered the country on a forged passport from the other matters relating to documents, namely, the propensity for forgery in Albania.  I have not expressed that very well.  What I am trying to say is that it is not possible to unpick the conclusion, it is not possible to say with any certainty that the Tribunal’s determination in relation to the forgery issue can be unpicked from the document assertions about Albania.  That is, one could not be satisfied that the same conclusion could be reached purely upon the false passport question.  The egg cannot be unscrambled quite so easily, that is the submission.

The same submission is made a little bit further up at the next level, which is that, although there were a number of other matters which the Tribunal took into account in coming to the conclusion that the applicant’s evidence ought to be rejected, it is not possible, if one accepts that the corroborative evidence was misused, to unpick the conclusion that his evidence was false from the refusal to accept the corroborative evidence.  So the applicant’s case is simply that if one comes to the view that it was erroneous to reject all documents emanating from Albania, it effectively poisons all of the conclusions of the Tribunal.

In effect, the trial judge accepted that and undoubtedly the Full Court rejected it.  The rejection occurs relevantly at page 43 of the application book at line 25, where he says:

A fair reading of the Tribunal’s reasons shows that the Tribunal did not dismiss the documentary evidence solely because of the likelihood of Albanian documents being forged.

For the reasons I have just advanced, that cannot be right; it is not possible to unpick the process of reasoning of the Tribunal.  If you take out one integer, namely the document forgeries, one simply cannot discern what decision the Tribunal would have reached.  That is the applicant’s argument.

If I could move briefly then to the question of why it is a proper case for special leave.  It involves no question of general importance, there is no doubt about that, but the submission which is made is that it is in the interests of the administration of justice in a particular case, and the reasons for that are threefold.  First, the class of persecuted persons here is particularly small.  It is not a class such as women or an ethnic minority.  It consists solely of a family.  Secondly, because of the evidence that he was actually attacked in Germany, or his room was turned up, if I may put it that way, there is material to suggest that not only is the class very small, but that as a member of that class he is particularly prone to a risk.  Thirdly, the risk of persecution here is not as it might be in some other refugee matters, the possibility of being dealt with in a differential fashion; it is the possibility of being killed and, a la Tate, there is perhaps in this case a suggestion of hanging or perhaps something a little bit more grizzly.

Those grounds would be proper grounds for the granting of special leave.  It is consistent that something this Court recently did in a special leave application in a case called  Suvaal v Cessnock City Council on 11 October this year where special leave was granted, more or less only on the basis that the detriment to the plaintiff who had been rendered, I think, quadriplegic by an accident that his life was so ruined by it that not to allow special leave could lead to someone’s life being ruined here.  Here, in this case, we say if we be right about the account, the risk to the applicant is that he will be returned to his country and killed.  Those are my submissions.

GLEESON CJ:   Thank you, Mr Perram.  Yes, Ms Maharaj.

MS MARHARAJ:   Your Honours, in relation to the passport, your Honours would note that that issue is addressed in the application book at page 5 from lines 15 to 27.  Your Honours will see that the official passport was not utilised to exit Albania and the official passport had in fact been sighted by the Australian Embassy in Bonn on 17 September 1998.  Your Honours, apart from the written submissions that we have made, we do not wish to add orally to those submissions, unless your Honours have any questions.

GLEESON CJ:   Thank you, Ms Marharaj.  Mr Perram.

MR PERRAM:   Nothing further, your Honour.

GLEESON CJ:   In this matter the Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is refused with costs.

We will adjourn.

AT 2.09 PM THE MATTER WAS CONCLUDED