NAHN v MIMIA

[2004] HCATrans 340

[2004] HCATrans 340

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S565 of 2003

B e t w e e n -

NAHN

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 SEPTEMBER 2004, AT 11.50 AM

Copyright in the High Court of Australia

NAHN appeared in person.

MR T. REILLY:   May it please the Court, I appear for the respondent.  (instructed by Sparke Helmore) 

IQBAL HYE CHOWDHURY, re‑called as interpreter:  

KIRBY J:   Now, you are the applicant in these proceedings and you have been named NAHN.  You understand that the reason for that is so that there will be no record on the Internet of your actual name.  Do you understand that?

NAHN (through interpreter):   Yes.

KIRBY J:   This is a course adopted by the Federal Parliament for the protection of applicants in your position.

NAHN (through interpreter):   Yes.

KIRBY J:   Mr Interpreter, you have already affirmed that the interpretation will be to the best of your skill and ability.  You are still subject to that affirmation in these proceedings.

THE INTERPRETER:   Yes.

KIRBY J:   Very well.  Applicant, you now have the opportunity to speak to the Court for 20 minutes, if you wish to do so.  The Court has read the documents, but this is your chance to speak.

NAHN (through interpreter):   Yes.

KIRBY J:   Very well.  What do you wish to say to us?

NAHN (through interpreter):   I have stated everything in my submission that I have furnished.  I am referring to page 38, Muin and Lie.  This case is similar to my case.  So when you decide my case, that has to be done.  I am requesting you to do it in reference to Muin’s Case.  I have mentioned the witness, Taslima Nasreen, and I am still in touch with her.  I have stated everything I have to say in my submission, so, whatever you decide, I will be satisfied.

KIRBY J:   You understand that this Court is not empowered by law to completely review your case on the merits of the case.  We are limited to intervening if it is shown that the Federal Court or the Tribunal failed to exercise its jurisdiction in accordance with law.

NAHN (through interpreter):   Yes.  They have made some errors, so that is why I am here.

KIRBY J:   And you are content to rely on the written documents that you have placed before the Court? 

NAHN (through interpreter):   Yes.

KIRBY J:   We have read those documents.  Is that all you wish to say?

NAHN (through interpreter):   No.

KIRBY J:   It is?

NAHN (through interpreter):   No.

KIRBY J:   Right.  Well, what else do you wish to say?

NAHN (through interpreter):   Nothing.  I do not want to say anything.

KIRBY J:   Thank you.  You may sit down.  You might tell the applicant again, Mr Interpreter, that the Court has read the documents in the file.  Now, Mr Reilly, there is just one question that I wanted to ask.  You will recollect that the main complaint of the applicant appears to be concerned with the treatment of his association with Ms Nasreen. 

MR REILLY:   Well, it was not believed, your Honour, yes.  So there was no association accepted by the Tribunal. 

KIRBY J:   I am sorry?

MR REILLY:   There was no association with Ms Nasreen accepted by the Tribunal, your Honour. 

KIRBY J:   The complaint seems to be directed to the fact that the Tribunal failed to contact Ms Nasreen.  Did the applicant ask the Tribunal to make contact with her during the course of the hearing?  Because my recollection is that the Migration Act does contain a specific provision that permits applicants to ask for evidence to be procured and giving a discretion to the Tribunal as to whether it will gather that evidence on behalf of the applicant.  

MR REILLY:   Yes, that is so, your Honour, and that is a matter that is dealt with in the decision of Justice Jacobson.  At page 23 of the application book – I think your Honour is referring to section 426(2)? 

KIRBY J:   Yes.

MR REILLY:   He made an oral request.  He did not comply with that section because it requires written notice, but he made an oral request.  That appears at paragraph 23 on page 23. 

KIRBY J:   Yes.  Presumably, Ms Nasreen would be in the Internet and it would not be all that difficult to find a fax number for her. 

MR REILLY:   Well, I think he wanted the Tribunal to telephone her.

KIRBY J:   I am sorry?  You will have to speak to the Court, Mr Reilly.

MR REILLY:   I am sorry, your Honour.  I believe the applicant wished the Tribunal to telephone Ms Nasreen.  That was the request that the applicant made.

KIRBY J:   Is your point the technical one that he did not make his request in writing to the Tribunal?

MR REILLY:   It is partly that, your Honour, but partly the other matters that are given by Justice Jacobson.  Firstly, under the terms of section 426, even if it had been complied with, the section explicitly states that the Tribunal is not required to obtain the evidence that is requested.  That is paragraph 25 on page 23.  Then, secondly, there is the difficulty that section 427(4) prohibits the Tribunal from summoning a person who is outside Australia. 

KIRBY J:   I am just a little concerned that this is a highly technical approach to the Act when, after all, as Justice Gummow and Justice Hayne have said, these are often vulnerable people who do not have legal advice and other advice.  I just would be concerned if, where a case turned on an association between an applicant and, say, a religious dissenter or political dissenter, and that person was within contact, that the Tribunal had a practice of not making fax contact with such persons to check whether they could add any light to the application.  Can you tell me whether they have a practice in that regard or not?

MR REILLY:   I am not aware that there is a practice one way or the other, your Honour.  I am sure if the Tribunal was of the view ‑ ‑ ‑

KIRBY J:   Ms Nasreen is a world famous figure now, and presumably it would be reasonably simple to track her down on the Internet and to check up on what, if any, association this applicant had with her. 

MR REILLY:   Well, if the Tribunal thought that there was any credibility in the claim at all, it may well have thought that that is a matter on which it should check.  But, as your Honour will be aware, the Tribunal had numerous reasons for finding the applicant to be completely without credibility, which had nothing to do with the specific claim to the association with Ms Nasreen, but due to inconsistency in his evidence – his voluntary return to Bangladesh at a time that he claimed to be in fear of his life there and so on.

KIRBY J:   It is a little bit like a point that was raised in a case yesterday where Mr Smith was appearing, where the question arose as to whether if a Tribunal disbelieves a person and then is shown in one particular to have been in error, that particular is enough to, as it were, re‑open the whole question of disbelief generally.  I just would be anxious if this were a practice of the Tribunal, where there was one key matter that could relatively easily be investigated in a tribunal which acts in an inquisitorial manner, that the Tribunal had some practice to say to unrepresented people, “Well, it is up to them to prove their case”, because that is not the methodology of this Tribunal as established by Parliament.

MR REILLY:   Yes.  Your Honour, I do not understand the Tribunal to have such a practice at all, but in this case the applicant did not know very much about Ms Nasreen, was questioned about it and the Tribunal plainly came to the view that the applicant was simply not telling the truth.  Now, it is not the case that every applicant who claims to have an association with some person and requests the Tribunal to track that person down – that the Tribunal must always comply with that request if the Tribunal has good reasons to think that the applicant is simply not telling the truth. 

In this case, there were a great many reasons, as your Honours will be aware from the Tribunal reasons, why the Tribunal came to the view that the applicant was not telling the truth.  In particular, he did not know much about Ms Nasreen, despite claiming to be her chief bookseller.  Plus, he had given inconsistent dates; plus, he had voluntarily returned to Bangladesh when he had claimed to be in fear of arrest on outstanding charges.  So this is not a case where there is any unfairness at all, and the way that Justice Jacobson dealt with the point is unremarkable, in my submission. 

KIRBY J:   Is there anything else that you wish to say?

MR REILLY:   No, your Honour.  Your Honours, can I just refer the Court to pages 13 and 14, which set out various difficulties with the applicant’s claims to an association with Ms Nasreen. 

KIRBY J:   Yes, what do you wish to draw to attention there?

MR REILLY:   Well, your Honour, I am simply – those are the matters that I referred to earlier, when I was making the submission that there was ample reason for the Tribunal to come to the view that the applicant was not telling the truth about any relationship with Ms Nasreen.  Then at the very bottom on page 14, after all these problems are mentioned, the Tribunal says:

I note the applicant’s suggestion that I contact Taslima Nasreen to verify his claims.  However, on the basis –

I am now reading from page 15 –

of the significant problems with the applicant’s own evidence, I am led to conclude that the applicant is a completely unreliable witness.  I do not consider it necessary to make any attempt to contact Taslima Nasreen in relation to the applicant’s claims. 

Now, there is nothing wrong or even surprising about that approach, given that conclusion.  In a different case, where the Tribunal was of the view that an applicant was or may be telling the truth, a different approach may well be adopted, but that is not this case.

KIRBY J:   But that is on the basis of having made no contact with the person herself, which is just a matter of a fax message.  I mean, this is not an accusatorial or adversarial tribunal.  This is an inquisitorial tribunal, which has its own responsibility to gather facts.

MR REILLY:   That is so, your Honour.

KIRBY J:   He has given some very specific statements as to when he met her and he did invite the Tribunal to make contact with her.  That, one would have thought, would have, one way or the other, set at rest the issue of his association or non‑association with Ms Nasreen.  The Tribunal found that he was not associated with her.  It did not accept the association and did so without the simplest and most direct way of checking one way or the other.

MR REILLY:   Well, your Honour, given the Tribunal had concluded that the applicant had fabricated the entire claim of the relationship with Ms Nasreen, it was not required to go another step in the circumstances of

this case.  In another case, it may have done so.  In this case, the applicant’s claims are so internally inconsistent, so lacking in credibility, the Tribunal was not required to take that extra step – even leaving aside the statutory context, which creates further difficulties. 

KIRBY J:   Yes, very well.  Is there anything else you wish to say?

MR REILLY:   No, your Honour.

KIRBY J:   Is there anything that the applicant wishes to say in reply?

NAHN (through interpreter):   At the time of hearing, I had mentioned to the RRT Tribunal member that I was still in touch with Taslima Nasreen.  And I had told him, told the Tribunal, that I have got the number and he can call her.  He can communicate through email.  When my case came to Federal Court, I also submitted an email which I had received from Taslima Nasreen.  His Honour Justice Jacobson did not annex that to the file, because he read it unofficially, but it was not presented before in that Tribunal because I had submitted that letter on the date of hearing.  They are saying that it is false, so why do they not make any investigation?  They need to inquire of Taslima Nasreen about me because the case of Muin and Lie is just similar to my case.

KIRBY J:   Yes, but you had the application before the Tribunal and you had the opportunity to persuade the Tribunal of what you said was true, and yet you did not present to the Tribunal the best evidence that you could have presented to show your association and close friendship with Ms Nasreen.  It is not very sensible to come along later to the Federal Court and to this Court seeking to have us re‑do the work of the Tribunal.  That was where you had your chance.

NAHN (through interpreter):   At the time I was first here, I do not know, I was not aware of these procedures.  Subsequently, I communicated with Taslima Nasreen, because you need to explain to the Tribunal that I was under refuge, I was having shelter in another country, so if you could explain the situation then probably they would have given me or granted me that shelter.  So, since they did not investigate, that is why I have had to apply to this Court.

KIRBY J:   Yes, very well.  Thank you very much.  The Court will adjourn briefly to consider what course it will take.

AT 12.08 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.11 PM:

KIRBY J:   The applicant is a national of Bangladesh.  He applied for a protection visa on the ground of fear of persecution for reasons of religion and political opinion.  He claimed to be a follower of the feminist writer, Taslima Nasreen.  He said his association with her, dating from college days, had resulted in, and stimulated, liberal ideas about society and religion which resulted in violence and confrontations with police and fanatical Islamic opponents. 

The applicant’s claim for a protection visa was rejected by the Minister’s delegate and by the Refugee Review Tribunal.  Judicial review was denied by the Federal Court.  The applicant now seeks special leave to appeal to this Court.

One suggested ground of appeal relies on the decision of this Court in the case of Muin v Refugee Review Tribunal (2002) 76 ALJR 966. However, there was no evidence which would permit the application of that case and, therefore, that ground of the application can be put to one side. The other suggested ground of appeal was related to the fact that the Refugee Review Tribunal found that the applicant had little knowledge of Ms Nasreen and her work and concluded that he was a completely unreliable witness. The applicant claims that the Tribunal ought to have called Ms Nasreen as a witness or, by inference, to have contacted her to check his story before disbelieving him on this matter.

Although it would have been open to the Tribunal to do this, the Tribunal disbelieved the applicant in his statement about his association with Ms Nasreen.  Accordingly, the issue of his contact with her did not, in the view of the Tribunal, arise.  Any defect that thus arose occurred in the exercise by the Tribunal of its jurisdiction.  There was no jurisdictional error or other error of law that alone would have justified judicial intervention.

Accordingly, this is substantially an attempt by the applicant to reargue the merits of the Tribunal’s determination.  As such, it is not a case suitable for the grant of special leave to appeal.  Special leave accordingly is refused.  It must be refused with costs.

Would you tell the applicant that the reasons of the Court will be transcribed and sent to him within the next couple of days.

AT 12.14 PM THE MATTER WAS CONCLUDED