NAEH of 2002 v MIMIA

[2004] HCATrans 12

[2004] HCATrans 012

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S107 of 2003

B e t w e e n -

NAEH OF 2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2004, AT 10.07 AM

Copyright in the High Court of Australia

MR R. NAIR:   If it please the Court, I appear for the applicant.  (instructed by the applicant)

MR N.J. WILLIAMS, SC:   I appear with MS L.A. CLEGG for the respondent.  (instructed by Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Nair.

MR NAIR:   Your Honour, after the last occasion when we first provided written submissions, this Court handed down its decision in Appellant S395 of 2002.  That was on 19 December 2003.  Accordingly, if my friend has no objections, I would seek leave to hand up further written submissions.  They are short ones.

GLEESON CJ:   Just give us a moment to look at these, Mr Nair.  Is the social group recalcitrant people or recalcitrant women?

MR NAIR:   Women, yes.

GLEESON CJ:   Recalcitrant women, I understand.  The case that is put against you, Mr Nair, as I understand it, and we will just hear your response, is that however you define the social group in this case, Justice Branson at first instance in the Full Court of the Federal Court said that on the findings of the Tribunal there was no risk of persecution.

MR NAIR:   Yes, that is correct.  In fact, the case against us in the judgments of the Federal Court is that in essential terms it is immaterial whether there was, what we say, is a jurisdictional error, if I can phrase it that way.  If that is what your Honour is alluding to, that is correct, and what we say to the contrary, the error made by the decision‑maker in failing to identify the actual claim made and to consider it is material – it is in fact clearly material, and the reason we say it is on two bases.

There were six incidents – before I say two bases, let me get, for the ease of discussion, headed under the two sections, the minor matter aspect and the suspect documents aspect.  With regard to minor matters, there were six incidents which the applicant – the woman in this case – claimed led to her well‑founded fear of persecution.  The Tribunal has accepted, essentially, the first four incidents, but characterised them as minor.

With regard to the latter two incidents, the last two incidents, the fifth and sixth incidents, the Tribunal did not accept the claims of the husband with regard to the fifth, and did not accept or was strongly inclined not to accept the sixth incident.  It is not really clear because the Tribunal says, “I do not accept it” or if it did happen, it was very minor in nature.

Now, the question is what is minor.  If I might illustrate that, if someone came up to me, or to anyone, and said, “Look, the police arrested me last night.  I was driving at 130 kilometres per hour down the highway which is signposted at a maximum speed 110, and I am really terrified about what is going to happen to me”, one might be inclined to think that he is making a mountain of a molehill, because one incident like that will not send him to gaol – well, normally not send him to gaol – but if one knows his history and realises ‑ ‑ ‑

GLEESON CJ:   Court reporting are having a difficulty picking you up, so just come to the microphone.  Thank you.

MR NAIR:   Thank you.  But if one then knows the background and knows his history and knows that in the last couple of years he has been charged with several speeding offences, then one might view the latest incident in a rather different light.  In that sense, the failure of the Tribunal to appreciate what item – the recalcitrant aspect, but can be seen in other ways - I mean, that is just a word - it is the non‑conforming to the mores of a society that is essentially authoritarian and fundamentalistic.

Now, in the non‑conforming aspect, and the perception of recalcitrance arises from the non‑conformity, a number of these incidents can lead to the perception and will lead to the perception that she is in some way opposed, not part of this society, someone who has to be treated as opposed to this society, and where the treatment for perceived opponents – and I use opponents in a very general sense, not in a political sense necessarily, but someone who does not conform ‑ can be very high, and there is evidence that it can be very serious indeed - then whether a particular incident is minor or not, must be considered in light of the fact of recalcitrance, and if you do not do that, then materiality comes into issue in that way.

On the second basis, what I call the suspect documents basis, it should be noted that the earlier two Tribunals accepted the appellant, the lady’s story.  Subsequent to her arriving here in Australia she provided two documents which suggested that, one, she was charged with particularly serious offences and, two, that she had been sentenced to 74 lashes and two months imprisonment, and the Tribunal, the last Tribunal, did not - well, as I said, it was suspicious of these documents.  There is some question as to ‑ ‑ ‑

CALLINAN J:   No, further than that.  It was not prepared to accept them as genuine.

MR NAIR:   Yes, because of a number of things – sorry, because of the lack of a serial number on the documents and also, apparently, the name of the court at the head of the document was a new name and not the name at the time of the incident a few years earlier.  However, the issue before the Tribunal is not issue, ultimately, of whether the documents were suspect or not.  The issue is still one of well‑founded fear and a finding with regard to that, and the suspect documents is only a step on the way.

It is conceivable, and hence, we say it is material, that had the Tribunal understood or appreciated or considered that her fear arose from the fact that she is seen as recalcitrant, non‑conforming, it might have formed the view that these documents are suspect, but perhaps – and this is a possibility – perhaps this lady produced these documents because she is quite so terrified of the consequences, and genuine refugees will do all sorts of things to boost their claims.  The fact that they may do a number of things which are suspect does not ultimately completely undermine their well‑founded fear of persecution.  It might, in fact, be a factor that supports it.

So in those two ways, it cannot be said, I would submit, that had the Tribunal understood that this fear arose not from just one episode, and it really was not just to do with the hijab, the dress, because the lady mentions repeatedly - you know, it is like talking back, it is this perception that people, that authorities or agents of authorities have, in totalitarian societies, of someone like herself.  We have to remember it is a totalitarian society.  It is not an open society where incidents go unnoticed.  People are constantly aware of what is going on.  If I might phrase it loosely, people are far more busybodies in that sort of society than they are in a society which is a lot more tolerant and, hence, less concerned with what individuals do on a day‑to‑day basis.

In this sense, it was material, and it cannot be said that had the Tribunal appreciated and considered the claim that was made that the Tribunal’s decision would inevitably and could only have led, nevertheless, to the rejection of the applicant’s claim.  There is a possibility, and that is what we say, and that is why we ask your Honours to grant special leave.

GLEESON CJ:   In this matter the applicant seeks leave to appeal from a decision of the Full Court of the Federal Court of Australia which, in turn, upheld a decision of Justice Branson of that court.  We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave.  The application is dismissed with costs.

AT 10.19 AM THE MATTER WAS CONCLUDED