MIMA v Farahanipour and Anor

[2001] HCATrans 330

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P7 of 2001

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Applicant

and

GHOLAMREZA FARAHANIPOUR and MOJGAN GHASEMPOUR

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 14 SEPTEMBER 2001, AT 11.02 AM

Copyright in the High Court of Australia

MR J. BASTEN, QC:   Your Honours, I appear for the applicant.  (instructed by the Australian Government Solicitor)

MR H.N.H. CHRISTIE:   Your Honour, I appear for the respondent, (instructed by Director of Legal Aid, Legal Aid Western Australia)

KIRBY J:   What has happened to Mohammed’s Case?  That is pending in the Court, is it?

MR BASTEN:   It is, your Honour.  Special leave was granted in June by the Chief Justice and Justice Hayne.

KIRBY J:   There is a case in the list in a month or so ‑ ‑ ‑

MR BASTEN:   Yes, that is the appeal.

KIRBY J:   - - - which involves Mohammed, but I saw that that was being withdrawn.  Do you know about that?  It may be a different case, I think.

MR BASTEN:   My understanding is that Mohammed has been listed in the October sittings in Perth of this Court.

KIRBY J:   And will proceed?

MR BASTEN:   And will proceed.

KIRBY J:   Yes.

MR BASTEN:   This is, as your Honours appreciate, a companion case to that.  The reasoning of the Full Court in this case was dependent upon the correctness of the decision in Mohammed.  The dissenting member of the court, Justice Tamberlin, concluded that the majority decision in Mohammed was clearly wrong, and declined to follow it.  The reasoning of the members of the Full Court in this case would clearly be considered in the course of argument in Mohammed.  Mohammed itself was a decision attended by sufficient doubt to warrant a grant of special leave.  If the appeal in that matter were upheld, there is no realistic basis on which this case would stand.  It would be anomalous to accept the reasoning, for example, of Justice Tamberlin, and yet to allow the judgment to stand.

Perhaps I should that the conduct in question in this case occurred before the judgment of the trial judge in Mohammed.  It could not be said that this respondent relied upon that decision.

KIRBY J:   Whether Mohammed is right or wrong and whether this is right or wrong, you say they travel together and it could be useful to the Court, as is often the case, to have two instances which can be before the Court with argument, and then we can consider the issue of principle that is involved.  Because there is an issue of principle, of course, in a free society where people can speak freely as to whether, by law or implication, the law says of people like the claimants for refugee status in this case, that they have just got to hold their tongue about what they have been through.

McHUGH J:   I think we might hear what Mr Christie has to say.

MR BASTEN:   If your Honour pleases.

KIRBY J:   In due course you will have to answer that point, Mr Basten.

MR BASTEN:   In due course, your Honour.

McHUGH J:   Yes, Mr Christie.

MR CHRISTIE:   May it please, your Honours.  Your Honours, the respondents accept that there is an issue of principle to be determined in this matter.  However, special leave having been granted in Mohammed, it is the respondents’ contention that it is not essential for this matter to be determined at this day and time, and although there may be some advantage in the Court in having two matters to be determined, that cannot outweigh the very serious prejudice that has already been suffered by these respondents in the course of what has been lengthy litigation, and if I just briefly run through that ‑ ‑ ‑

KIRBY J:   Your client is at liberty in the community, is he not?

MR CHRISTIE:   Yes, he is now at liberty in the community ‑ ‑ ‑

KIRBY J:   Yes, at the moment?

MR CHRISTIE:   Notwithstanding that the decision in his favour or in their favour, being husband and wife, was given in July 1999, he remained in detention until April 2001.  It was only after application was made to the High Court that the applicant arranged for a bridging visa to be granted.  However, the prejudice is continuing in that under the terms of the bridging visa the respondents are not permitted to work, they are not in receipt of any income support, they are reliant entirely on the charity of friends.  Of course ‑ ‑ ‑

KIRBY J:   Is it not desirable that this matter should be disposed of quickly as it can be by chance because the Court is sitting in Perth and the matter overlaps the case of Mohammed?  Is there any practical inconvenience from your clients’ point of view, say perhaps being exposed to a risk and being exposed to costs, which I assume the Minister will offer to pay, of coming along to the Court and arguing the point of principle which is involved?  After all, there was dissentient in the Full Court.

MR CHRISTIE:   Yes, your Honour, I ‑ ‑ ‑

McHUGH J:   The present application is a particularly good vehicle for argument on the issue in light of the strong factual findings made by the Tribunal as to the respondent’s fear of persecution should he be returned to Iran.  It is almost the perfect vehicle for determining the point of principle.

MR CHRISTIE:   Yes, your Honour, I accept that.  In essence, the same principle arises in Mohammed, so the question is whether it is necessary for the two matters to be determined, or whether it is sufficient only for the matter to be determined in Mohammed.

KIRBY J:   It is proper that you should try to hang on to the decision that you have got, and that is entirely appropriate stance for you to take.  Experience does teach in a court like this or in the Court of Appeal, that it is an advantage to have two cases, and as Justice McHugh says, where you have strong factual findings, it sharpens the point that has to be decided.  Therefore, it seems to me, especially having regard to the dissent in the Court of Appeal and also Justice Nicholson’s comments about what he felt he should follow, that the issue is well tended if we have this case and Mohammed together.

MR CHRISTIE:   Your Honours, the only ground I can raise is the ground of the continuing prejudice to the respondent which has lasted, as I said, for some three years.  It is likely to continue.  Even should a unfavourable decision be given, that is not the end of the matter because the matter will then be referred back to the Refugee Review Tribunal.  In the circumstances of this particular case there was very substantial additional evidence available which was presented to the Federal Court in support of a notice of contention.

KIRBY J:   Yes, I was going to ask you about that.  That is referred to on page 90 of the application book where it says, “The Respondents” ‑ ‑ ‑

MR CHRISTIE:   Your Honour, that was not pursued in the Federal Court because the Minister agreed that the matter, if his argument succeeded, would go back to the Refugee Review Tribunal in any case.  Obviously,

from the respondents’ point of view, it was appropriate for this new evidence to be determined, if necessary, under a determination on the merits rather than on the very limited grounds available under the “no evidence” rule.  That evidence is ‑ ‑ ‑

KIRBY J:   Presumably Mr Basten would give the same undertaking to this Court, that is to say, if he succeeded in the appeal, if special leave were granted, that the matter would have to go back to the Full Court with the notice of contention still outstanding, but on an understanding between the parties that the Minister is going to consent to the matter then going back to the Tribunal.  That does not arise if you hold on to the decision.  What is suggested to us is that the decision is flawed by the same legal point in respect of which the Court has granted special leave in Mohammed.

MR CHRISTIE:   Yes, I accept that, your Honour.  It is the continuing uncertainty and the fact that the applicants were not at large, remain in a very prejudicial situation in that they are unable to work or receive any income support.  That is really the grounds for opposing this application, and I cannot take that any further.

McHUGH J:   Yes, thank you, Mr Christie.  Mr Basten, you will give the undertakings to which you referred in paragraph 5 of the applicant’s summary of ‑ ‑ ‑

MR BASTEN:   Yes, your Honour.

KIRBY J:   Do they cover both the question of costs and the question of what happens to the notice of contention?

MR BASTEN:   No, they do not, your Honour.

KIRBY J:   Which page is this?

MR BASTEN:   Page 85 at the bottom, usual undertaking to “pay the reasonable costs” in any event, and not “disturb the orders for costs made below”.

KIRBY J:   What about the point that has been raised by Mr Christie concerning the notice of contention?

MR BASTEN:   Yes, that is not dealt with there.  The Minister’s position has not changed.  He continues to take the view that that matters should properly go back to the Tribunal, and may do if the Minister is successful on the ‑ ‑ ‑

KIRBY J:   So far as I am concerned, that would be a basis upon which I would consider the grant of special leave.

McHUGH J:   Yes, thank you.  There will be a grant of special leave in this matter upon the applicant undertaking to pay the reasonable costs of the respondents in relation to the appeal, and not seeking to disturb the orders for costs made in the courts below.  This matter should be heard together with the matter of Minister for Immigration and Multicultural Affairs v Mohammed, which is already listed for hearing in October in Perth.

KIRBY J:   Can I just ask Mr Basten just before you go, will you be appearing in this matter in Perth, do you know?

MR BASTEN:   Yes, your Honour.

KIRBY J:   Does the undertaking as to reasonable costs, there now being two cases in the list, extend as I would assume it would be, to some agreement between the respondent parties and their representation by senior counsel?

MR BASTEN:   Yes.

KIRBY J:   I say that without any reflection on Mr Christie who I had before me before, but it ought to be equality of arms.

MR BASTEN:   Indeed, yes, your Honour.

AT 11.13 AM THE MATTER WAS CONCLUDED