NAKX of 2002 v MIMIA

[2004] HCATrans 149

[2004] HCATrans 149

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S305 of 2003

B e t w e e n -

NAKX OF 2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 4 MAY 2004, AT 2.24 PM

Copyright in the High Court of Australia

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

GLEESON CJ:   Is there anybody here representing the applicant?  Are you the applicant in this matter?

THE INTERPRETER:   No, your Honour, I am a Singhalese interpreter.

GLEESON CJ:   We are looking for the applicant, whose evidence is going to be interpreted.

KIRBY J:   We know him under the Act by a number of initials.  He may not know that.  Do you know the applicant yourself?

THE INTERPRETER:   No, your Honour.

GLEESON CJ:   Officer, will you please call the applicant in matter NAKX of 2002.

COURT OFFICER:   No response, your Honour.

GLEESON CJ:   Now, officer, would you inquire outside whether there is any applicant in any proceedings before the Court this afternoon in the precincts of the Court.

KIRBY J:   Have your solicitors had any contact, Mr Bromwich, with the applicant?

MR BROMWICH:   Not recently, no, your Honour.  I am aware that there was some direct contact at the end of last year between an officer of the Court, Mr Grey, and the applicant.  The burden of that communication was that he was warned that if he did not file his application books, then his matter would be deemed abandoned.  I gather what happened after that is that the books were, in fact, filed and my instructing solicitors were advised of today’s hearing date via letter dated 8 April 2004.

COURT OFFICER:   No response, your Honour.

GLEESON CJ:   Thank you.  We have read the written material put before the Court by the applicant.  Is there anything you want to say in response to that, Mr Bromwich?

MR BROMWICH:   I have nothing to add to the written submissions, your Honour.

KIRBY J:   There is one point that is made by the applicant.  I am referring to paragraph 1 on page 50 of the application book.  He says:

The Tribunal without giving any indication to the applicant that it was not satisfied on that issue –

that is to say, the issue of the sexuality of the applicant –

and without inviting the applicant to lead any further evidence and address that issue made an adverse finding that the Applicant was not a homosexual.

The complaint seems to be that there was procedural unfairness because the first Tribunal, whose decision was reversed by consent, found or assumed that the applicant was homosexual but went on to find that there was no grounds of persecution in the Convention.  But then when he came back without giving him notice that the second Tribunal was suspicious of that issue, it went on to make a positive finding against him on that issue and, by inference, that that coloured the way in which the second Tribunal approached the whole matter.  What is the answer to that?

MR BROMWICH:   Your Honour, all I can say is that the reasons of the Tribunal reveal that all aspects of the applicant’s claim appeared to be the subject of some questioning, but I cannot point to a particular part of the reasons that overtly deal with raising the point that your Honour precisely makes.

KIRBY J:   We do not have the reasons of the first Tribunal?

MR BROMWICH:   No, you do not.

KIRBY J:   But can we accept what is said there, that in the first Tribunal it was accepted that he was homosexual but that the first Tribunal rejected the application on the basis that, though he was a member of a recognised social group, he did not have a well‑founded fear of persecution?

MR BROMWICH:   It certainly was the case that the first Tribunal accepted that he was homosexual.

KIRBY J:   What is the answer to his complaint in paragraph 1 where he says:

without inviting the applicant to lead any further evidence and address that issue made an adverse finding that the Applicant was not a homosexual.

MR BROMWICH:   There are two answers really to that, your Honour.  The first or primary answer is that an applicant brings an application for a protection visa on a particular basis.  They go to a hearing and it is for them to make their case and the Tribunal member raises with them all aspects of their claim necessarily in the course of making their claim for a protection visa.  My submission would be that there is not a requirement to tell someone when they are going back for a remitted hearing that the new Tribunal is going to adhere or not adhere to previous findings.  It is a fresh application for review and all matters are open for consideration.

KIRBY J:   Would a lay person know that without being told, “I know the first Tribunal found that but I feel I have to inquire into this”?  Does the transcript reveal sufficiently that the second Tribunal opened up the issue plainly to the applicant?

MR BROMWICH:   Your Honour, I am not in a position to either agree or disagree with the fact asserted but not proven that it was not raised.  I do not have transcripts.

KIRBY J:   On the face of things, the fact that he was interrogated concerning his suggestion that he had gone to various clubs in Sydney and then could not name any of them, it would have rather indicated that the Tribunal was suspicious of his claim of sexual orientation.

MR BROMWICH:   Yes, your Honour, and the reason why the claim was not accepted in any event was based on credibility.  In effect, the Tribunal found that his credibility was so shattered that he did not accept any part of his claim, including the foundational claim as to sexuality.

KIRBY J:   The only thing that worries me a little about that is whether the poison was put in the well by the fact that the Tribunal did not accept the basic premise that he was homosexual and that the applicant did not really know that that was going to be reopened, given that he had a positive decision on that score from the first Tribunal.  I could concede that a lay person unaware of the ways of the law might make that assumption, having won that issue, that he was not going to have to refight that in the matter which was sent back because of a mistake and in the face of an adverse finding on another basis.

MR BROMWICH:   Your Honour, the poisoned well approach, as your Honour articulates it, is not one that is borne out by what happened in this case.  It was the other way round.  If one looks at the top of page 21 in the application book, it is not a poisoning of the well and then a progression to disbelief, but rather a disbelief leading to that as part of the conclusion flowing from that disbelief.  A major part of his difficulty was that he produced a set of documents supposedly that were arrest warrants and the arrest warrants were in multiple ways plainly wrong.  They were addressed to him and not to a police officer, they had a wrong date by a considerable period of time.  He then went back and got another set of documents which then had a date which referred to the time after he had arrived in Australia and the Tribunal formed the view that these documents were just being produced at will when he needed them.

GLEESON CJ:   The Tribunal formed the view that he kept producing a series of forged documents and every time one of the aspects of forgery was pointed out to him, he would take them back and get another forged document.

MR BROMWICH:   That is right, yes, your Honour.  I think that happened three times.

KIRBY J:   He had a sister in Australia, is that correct?

MR BROMWICH:   Not in Australia – South Africa, I thought.

KIRBY J:   I thought it was in Australia.

MR BROMWICH:   His father in South Africa and a sister in Australia.  I think your Honour might be right, yes.  I am sorry.  I knew he had one parent in the African continent.  It was not the reference to the sister.  The documents he said his mother had got, and that was certainly examined in some detail in relation to the documents.

KIRBY J:   Your point is that there were other grounds on which the adverse finding on credibility could have been based and in any case that on the issue of his sexual orientation, the second Tribunal by the course of its questioning, and specifically questioning relating to his activities when he was in Australia, indicated that the issue of his sexual orientation was on the table and therefore that he could not really complain that he was surprised by the second Tribunal raising that matter notwithstanding the affirmative decision of the first Tribunal on that question.

MR BROMWICH:   Yes.  In relation to that point, your Honour, it was not a case of him being unable to name a place that he had been on a single occasion.  His suggestion was that he had been to various venues in Oxford Street on a number of occasions and the Tribunal’s point was that he could not name any of these venues from any of these occasions.  So that the basis for his claim factually appeared to be weak and he was clearly being questioned on that.

KIRBY J:   Tribunals have to be a little careful doing detective work.  He might not have been concentrating on the name of the venue or he might not

have been in a good state when he got to the venues to notice the name.  The name may not have been significant to him.

MR BROMWICH:   That may well be so.

KIRBY J:   However, one would have thought he could have named one of them, and at least that was open to the Tribunal to so conclude.

MR BROMWICH:   That is right, your Honour.  The findings of credibility were not just found on one or two points but they were found across the spectrum, including numerous inconsistencies in his own account of what had taken place, he said, in Sri Lanka.  This was not a marginal credit finding or one found on a slender basis; it was found comprehensively and across the board.

GLEESON CJ:   Thank you, Mr Bromwich. 

The applicant not appearing when the matter was called for hearing, we considered the written material that he had placed before the Court and the written and oral submissions on behalf of the respondent.  The Court is of the view that having regard to the findings of fact made by the Refugee Review Tribunal, the case raises no issue suitable to a grant of special leave to appeal and that there is no sufficient reason to doubt the correctness of the decision of the Federal Court of Australia to warrant a grant of special leave to appeal.  The application is dismissed with costs. 

KIRBY J:   Thank you for attending, Mr Interpreter. 

AT 2.37 PM THE MATTER WAS CONCLUDED