NADO v MIMIA

[2004] HCATrans 470

[2004] HCATrans 470

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S486 of 2003

B e t w e e n -

NADO OF 2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 NOVEMBER 2004, AT 11.17 AM

Copyright in the High Court of Australia

NADO appeared in person.

MR R.J. BROMWICH:   May it please the Court, I appear for the respondent.  (instructed by Clayton Utz)

McHUGH J:   You might be sworn, Mr Interpreter.

ARAMAIS AROUSTIAN, affirmed as interpreter:

McHUGH J:   I will speak to the applicant and you will translate for him.  Well, you have 20 minutes to emphasise any points that you want to emphasise.  The Court has read all the papers, and if there is anything that you want to say in addition, please say it now.

NADO (through interpreter):   Yes, I would like to say something.

McHUGH J:   Yes, well go ahead.

NADO (through interpreter):   I have 20 minutes, your Honour?

McHUGH J:   Yes, yes, go ahead.

NADO (through interpreter):   I wanted to say that when the member of the Tribunal was considering my case he entirely ignored the fact of economic persecution.  In my case, specifically it meant that virtually every year I had to change jobs.

McHUGH J:   Well, I am not sure that the Tribunal ignored it.  The Tribunal said that, particularly in recent years, you had enjoyed continuity of income and worked with the same employer for several years.

NADO (through interpreter):   Well, it cannot be called an income at all because the job was a part-time job.  That was a period of hyper-inflation, and the amount that I got was less than $10.  In practice, I was a dependant of my mother and my grandmother.

McHUGH J:   Yes.

NADO (through interpreter):   That was over the period of the last five years.  It was impossible to subsist on that sum of money.  You could not call it an income.  I continued to stay at work because I hoped that there would be some changes for the better, and I was hoping for some, even insignificant, amounts of money.

McHUGH J:   Yes, but what you have to understand that in this Court we do not determine the facts of the case.  Those facts are determined by the Tribunal.  You have to show that there is something special about your case that would warrant this Court giving you leave to appeal.

NADO (through interpreter):   Well, the member of the Tribunal did not take that into account.  He said, yes, there were threats to me but it was not a threat to my security, and he only talked about physical violence, and of course, I did have physical violence.  I had unpleasantness with the police.  I had been beaten up at the police station and by neighbours.  So it is an open question.  If I am to return there nobody knows what would happen next, but as far as work is concerned I am convinced that things will continue as they were.  As a result of the attitude that exists in Russia for people such as me, there is complete antipathy.  The Tribunal member did not bear this fact in mind.

McHUGH J:   Yes, but these are questions of fact for the Tribunal.  They are not matters that we can deal with.  This Court deals with important questions of law that affect the nation.  You have to show there is something special about your case that would warrant the grant of leave.  You have had your appeals.  You have had two appeals.

NADO (through interpreter):   Well, what I am saying is that the Tribunal member denied me the visa without adequate basis - that is what I consider - by ignoring the facts of the evidence that I tendered.  Also there were errors in the interpretation of documents that I submitted.  I did have a police note to indicate that I had been detained, but the Tribunal member confused everything, because I had also been called out to the Prosecutor‑General’s Office, and he confused everything.  He thought that I was detained at the prosecutor’s office, he found some contradictions there, and based on that he had doubt in everything I said.  That is not the only matter.  I can bring forward other examples if necessary.

McHUGH J:   But the problem that you have is this, that Parliament has said it is for the Tribunal to determine these matters, and even if it gets it wrong on the facts, that is not a sufficient ground to bring the case here.  There has to be some question of law, some important issue, or defect of procedure, that would enable you to get your case into this Court.  We do not sit here to find the facts. 

NADO (through interpreter):   Well, in principle that is all I can say.

McHUGH J:   Yes, I understand it is very difficult for you, probably, to understand how confined this hearing is from your point of view.  Is there anything further that you want to say?

NADO (through interpreter):   Well, not now, perhaps afterwards.

McHUGH J:   Well, this is your only opportunity.

NADO (through interpreter):   Well, I think that is all.

McHUGH J:   Yes, thank you, sit down.  The Court need not hear you, Mr Bromwich. 

This case raises no general principle of law that warrants the consideration of the Court.  In addition, insufficient doubt attends the decision of the Full Court of the Federal Court to justify the intervention of the Court.  Accordingly, special leave to appeal must be refused. 

MR BROMICH:   Your Honours, I am instructed to seek an order for costs. 

McHUGH J:   Yes.  The application must be dismissed with costs. 

AT 11.28 AM THE MATTER WAS CONCLUDED