MIMIA v Waco

[2004] HCATrans 430

[2004] HCATrans 430

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P55 of 2003

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Applicant

and

WACO

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 28 OCTOBER 2004, AT 9.15 AM

Copyright in the High Court of Australia

MR J.D. ALLANSON:   If the Court please, I appear for the applicant.  (instructed by Blake Dawson Waldron)

MR M.D. HOWARD:   May it please the Court, I appear for the respondent.  (instructed by Maxim Litigation Consultants)

HAYNE J:   Yes, Mr Allanson. 

MR ALLANSON:   Your Honours, the point which we seek to raise is a very short one.  In a matter before the Refugee Review Tribunal the Tribunal made a series of findings against the credibility of an applicant and, in particular, made a series of findings regarding whether it would accept the applicant’s evidence about his relationship with a particular religious leader.  Following the hearing, the applicant provided documents to the Tribunal which the applicant said supported his claim to have a relationship with that leader.  In the relevant finding at page 34 of the application book, at line 8 the Tribunal said this:

In view of the Tribunal’s firm findings against the Applicant in respect his religious association with Ayatollah Shirazi, the Tribunal is not prepared to accept either of these documents as genuine.  In the light of these findings, the Tribunal is not satisfied that the contents of the letters he has supplied . . . regarding his claimed status as a follower and a close associate of Ayatollah Shirazi are genuine and finds that they have been prepared to seek to bolster his claims.

So it was a finding against the genuineness of the documents which arose out of, as the Tribunal said, its firm findings against the applicant in respect of his evidence regarding that relationship.  The Full Court of the Federal Court said that there was a breach of natural justice, so that the decision of the Tribunal was unlawful because, notwithstanding the fact that the decision of the Tribunal had arisen out of its findings regarding the applicant’s evidence and regarding the Tribunal’s rejection of his evidence about the relationship with the Ayatollah, the Full Court said that the principles of natural justice required the Tribunal to separately put that issue about the genuineness of the documents to the applicant.

HAYNE J:   That then brings us to the question of whether the Full Court is to be understood as erecting some general rule or principle or whether the Full Court is simply applying accepted principles to particular facts. 

MR ALLANSON:   Yes, your Honour.  In these circumstances, of course, the accepted principles include that natural justice is flexible and has regard to the structure of the Tribunal, the nature of the function that it is performing and the facts of the particular case. 

HAYNE J:   Now, if it is no more than the application of accepted principles to particular and peculiar facts, then the question arises what is the consequence on questions of grant of leave or no grant of leave, that follow from the introduction of section 422B into the Act, that Division 4 of Part 7 is taken to be an exhaustive statement of the requirements of natural justice. 

MR ALLANSON:   The introduction of section 422B itself, your Honour, has left unanswered questions ‑ ‑ ‑

HAYNE J:   I understand there are hours of innocent amusement yet to be had about the effect of section 422B, but if all we have here is a particular set of facts giving rise through the application of principle to a particular outcome, that is one thing, where subsequent cases would be at least affected by whatever consequences flow from 422B.

MR ALLANSON:   Save, your Honour, that 422B is expressed as applying to those matters – the Division is taken to be an exhaustive statement of natural justice in relation to the matters in which it deals with and this is a question which does not squarely fall within any of the separate sections in Division 4 of Part 7.

HAYNE J:   Yes, that I understand.

MR ALLANSON:   The more general issue, your Honour, not only in relation to migration but in relation to administrative tribunals generally, is that where a document is rejected, or where evidence is rejected, necessarily in many cases that is going to involve a finding either explicit or implicit that the document is not genuine or that the evidence was not truthful. 

The way in which natural justice has been applied in this case suggests that before in any case a document is rejected as not being genuine there ought be the opportunity to be heard separately as to the genuineness of the document, even though the issue to which the document relates is clearly understood to be an issue which is in contention and even though the applicant clearly understands that that is a matter on which the Tribunal will require to be satisfied before it can make a finding in his favour. 

So we would say that it is more general than a principle which would apply only to the Migration Act and so it is not something that would be in all cases covered by those amendments which have been made to the Migration Act and we would also say it is a matter which would not necessarily fall within those provisions, so that the issue has not resolved for all time by amendment. 

CALLINAN J:   Mr Allanson, the letters are not reproduced anywhere, are they?

MR ALLANSON:   No, they are not, your Honour.

CALLINAN J:   Nor the translations?

MR ALLANSON:   No.  It has to be accepted, your Honour, that the content of the letters or the substance of the letters was such that they supported the applicant having a relationship with the Ayatollah Shirazi when that relationship was an important part of the applicant’s case.  The Full Court said it was a central plank and we could not dispute that it was essential to his case that his relationship with the Ayatollah be accepted.

CALLINAN J:   The Tribunal really did not say what were the features that made it obvious to the Tribunal that the letters were forgeries. 

MR ALLANSON:   No, your Honour, because the Tribunal expressed its conclusion that the letters ought not be accepted as genuine based upon, as it says, in view of its firm findings that it does not believe the relationship.  It was a consequence of those findings that it did not believe the genuineness of the letters.  If it had gone the other way around and it had said, “These letters on their face are forgeries, we don’t believe they are forgeries and as a result we do not believe you have had that relationship with the Ayatollah that you claim”, then I doubt that I would be standing before you, or I doubt that I would have got as far as I have standing before you.  It is because it went the way that it did that the ‑ ‑ ‑

CALLINAN J:   It is a big step to take, is it not, to say that consideration of the letters is foreclosed because of a view that we have formed already?

MR ALLANSON:   Well, your Honours, this Court has previously said that the circumstances in a case may be such that the credibility has been found so much against someone that the wells have been poisoned and that corroboration cannot do anything to save the case.

CALLINAN J:   More often than not the credibility question is tied up with the evidence itself.  It is very difficult often to isolate credibility issues completely from the issue of substance, particularly in these sorts of cases, I think. 

MR ALLANSON:   Yes.  Well, in this case the credibility issue arose out of findings that the Tribunal made regarding the applicant’s claims to have

distributed pamphlets, to have been involved in political activity and to have participated in certain activities with the Ayatollah at a time when the Tribunal found the Ayatollah was under house arrest and, accordingly, would not have been able to carry out those activities. 

But, your Honour, that is the point that we seek to make.  It is made in the written submission.  We realise that it is a confined one, but we would suggest that it is an important one because it has elevated this question of the genuineness of the documents to a status which it ought not have and it had the result that a decision has been held to be unlawful simply because there has been that rejection of documents arising out of the credibility findings which has been expressed in the way in which it was. 

Had the Tribunal said, “Because of the findings I make regarding credibility, I am just not prepared to accept these letters, sway me from that finding”, practically it would have made no difference, in fairness it would have made no difference, but it would not have grounded the attack on the Tribunal’s finding that the Federal Court accepted.  Your Honours, that is the submission.

HAYNE J:   Thank you very much, Mr Allanson.  We need not trouble you, Mr Howard.

Contrary to the submissions of the applicant Minister, the decision of the Full Court of the Federal Court of Australia does not establish a general rule or principle to the effect that an administrative decision‑maker may refuse to accept that documentary material produced to it is genuine, only if the decision‑maker has first given notice to the person producing it of the decision‑maker’s doubts about its authenticity.  Rather, the decision of the Full Court, made in relation to provisions of the Migration Act 1958 (Cth) that have since been amended by the insertion of section 422B, turned upon the application of well‑known and established principles to the particular and peculiar circumstances of the case before it.

It raises no question suitable to a grant of special leave to appeal.  Accordingly, special leave to appeal is refused and must be refused with costs.

AT 9.27 AM THE MATTER WAS CONCLUDED