NAJK v MIMIA

[2005] HCATrans 559

[2005] HCATrans 559

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S106 of 2004

B e t w e e n -

NAJK

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 AUGUST 2005, AT 12.46 PM

Copyright in the High Court of Australia

MR B.M. ZIPSER:   I appear for the applicant.  (instructed by the applicant)

MR J.D. SMITH:   May it please the Court, I appear with my learned friend, MR S. ASPINALL, for the respondent.  (instructed by Sparke Helmore)

McHUGH J:   Yes, Mr Zipser.

MR ZIPSER:   Your Honour, in the application book there are detailed submissions written on behalf of the applicant and I only have a few comments to make in oral address.

McHUGH J:   Yes.

MR ZIPSER:   As a general introduction, the applicant has an overall complaint about the combination of an unfair procedure adopted by the Tribunal and multiple mistakes of fact in its decision.  Five points in summary indicate the unfairness that exists in the current decision of the Refugee Review Tribunal.

First, my client attended the Refugee Review Tribunal for a hearing.  He stated to the Tribunal that his name was – to use the acronym used by Justice Jacobson in the court below – MSA.  He gave to the Tribunal his original passport in the name of MSA.  He gave to the Tribunal a copy of his birth certificate in the name of MSA believing that those documents would be sufficient to prove his identity as the delegate had found that he was MSA.

The second point is that the Tribunal while it visually examined another passport that the applicant gave to the Tribunal and made comments in relation to that passport adverse to the applicant, that is, that it did not show signs of manipulation, the Tribunal did not equally, visually examine the passport that the applicant said was his and presumably, if the Tribunal had visually examined the passport ‑ ‑ ‑

McHUGH J:   But these are factual matters, are they not, Mr Zipser?

MR ZIPSER:   I accept that by the failure of the Tribunal to examine the passport the applicant said was his does not by itself give rise to procedural unfairness, but I say that the combination of that factor with the Tribunal’s failure to raise with the applicant concerns about the birth certificate that he provided where, in my submissions, the Tribunal’s concerns were not obvious and natural concerns also together with what, in my submission, were multiple mistakes of fact by the Tribunal in evaluating the applicant’s

evidence – and those multiple mistakes of facts are set out in paragraphs 12 and 13 of the applicant’s summary of argument – and also together with the use by the Tribunal of some of its mistakes of fact, its use of its mistakes in a sense to then make findings against the applicant, for example, as to whether he had a subjective fear of persecution, my submission is that the combination of those matters either gives rise to procedural unfairness by the Tribunal or alternatively my submission is that there was a sufficient level of mistake of fact which may give rise to jurisdictional error.

In saying that I am aware that the High Court has stated, at least up until now, that a mistake of fact by itself does not constitute jurisdictional error.  My submission is that if the Court has similar concerns to the applicant about the mistakes in the Tribunal’s decision and the unfair procedure that it adopted then this case would be a suitable vehicle for considering those issues on an appeal.  Your Honours, again my submissions are detailed, they speak for themselves.

McHUGH J:   Well, as usual, Mr Zipser, they are well presented.  They put the arguments in favour of your client cogently. 

MR ZIPSER:   I have no further submissions unless there are questions that the Bench wants answered.

McHUGH J:   Yes, thank you, Mr Zipser.  We need not hear you, Mr Smith.

We are of the opinion that the case raises no question of law that would warrant a grant of special leave.  Accordingly, the application must be dismissed with costs.

The Court will now adjourn.

AT 12.53 PM THE MATTER WAS CONCLUDED