Nyoni v Minister for Immig

[2000] HCATrans 32

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M127 of 1998

B e t w e e n -

CLEVER EMISON NYONI

Applicant

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 FEBRUARY 2000, AT 1.18 PM

Copyright in the High Court of Australia

KIRBY J:   You are Mr Nyoni?

MR C.E. NYONI:   I am Mr Nyoni.

KIRBY J:   And you are the applicant in this matter?

MR NYONI:   I am the applicant.

MS M.E. KENNEDY:   If it please the Court, I appear on behalf of the Minister.  (instructed by the Australian Government Solicitor)

KIRBY J:   Yes, Mr Nyoni.  You know that you have 20 minutes in which to advance your argument?

MR NYONI:   Yes, your Honour.

KIRBY J:   A light will come on after 15 minutes.

MR NYONI:   I will just emphasise a few points ‑ ‑ ‑

KIRBY J:   You will have to speak up I am afraid.  It is a long way in every sense between the Bar table and us.

MR NYONI:   I would like to emphasise a few points in my appeal.  The points that attract the special leave ‑ ‑ ‑

CALLINAN J:   Mr Nyoni, I am sorry, I cannot hear you.  Speak more loudly, please.

MR NYONI:   Yes.  I would like to emphasise the points which attract the special leave of appeal in my application and ‑ ‑ ‑

KIRBY J:   We have read your written submissions so that you do not have to read that to us.

MR NYONI:   Yes.

KIRBY J:   The purpose of the oral argument is for you to advance anything that you want to say in addition to the written argument.

MR NYONI:   In my oral argument I would like to urge to the cases of Chen v The Minister for Immigration, which I believe you have got in your material, with respect to the well‑foundedness of fear of persecution the underlying point which was not addressed in the courts below.  The case was looked at merely as a domestic dispute and, therefore, the well‑founded fear of persecution was not established in the court below and the Refugee Review Tribunal.  The Refugee Review Tribunal did find that there was a subjective fear in the applicant’s mind if returned to his country but they did not examine the totality of the situation.

That, your Honour, is what I have argued on page 77 of my application book, that it involves the incorrect interpretation of the applicable law or an incorrect application of the law to the facts by a person who made the decision.  Now, the point here is that the facts themselves were incorrectly interpreted.  In that case the question of correct application of the law arises.  That is where the first point of the error in law arose.  On the question of bias, briefly, it is the wording of the first decision by the Department and thereafter by the Refugee Review Tribunal but word for word the two decision makers, they did not explore the matter in its depth and, therefore, the error in law involves bias in that respect.  That is all I have got to say, your Honour.

KIRBY J:   Yes.  Well, what do you say in relation to the written submissions of the Minister?  Have you read the written submissions of the Minister?

MR NYONI:   Yes, I have read the ‑ ‑ ‑

KIRBY J:   First of all in relation to your allegation that there is an error of law the Minister says that these are no more than findings of fact by the Tribunal and those findings were against you.  The Tribunal found that the threats made against you were not politically motivated and that, if anything, they merely arose out of family connections.

MR NYONI:   That is what I said, your Honour, that was the catalyst, as I stated in my first argument, that the facts of the matter were that it is convention related nevertheless.

KIRBY J:   What do you say in relation to the suggestion that in respect of your claim of actual bias that you have given no real particulars and that there is no way in which this Court could infer or find actual bias on the part of the decision makers below?

MR NYONI:   Well, the facts of the points of law which I have submitted and which the respondent has responded to in themselves form the basis upon which my application should be looked at in this Court, that the interpretation of the law has to be based on the correct interpretation of the facts.

KIRBY J:   But as to the third matter relating to the absence of evidence to justify the primary decision, what do you say in relation to the submission for the Minister that there was material before the Tribunal and that this was a matter which was contested before it and which it decided against your interests?  You see you wanted to assert that the actions against you were politically motivated but the Tribunal had other evidence about the state of human rights in Zimbabwe and they found certain matters as a fact and they did not accept your propositions nor did they accept that because you had raised some criticism of the government that you would necessarily be persecuted when you went back to Zimbabwe.

MR NYONI:   Yes, I asserted that the ‑ ‑ ‑

KIRBY J:   And there are quite a few people in Zimbabwe who are objecting all the time to the regime of President Mugabe.  In fact, there is an election there tomorrow.

MR NYONI:   Well, as I pointed out, my case was different in the sense that it was being handled by a different government department called the CIO which I referred to throughout the argument, that they were a law unto themselves and, therefore, it was different in the sense that I was not in the same category as the people were raising the same voice and, therefore, I sought that special consideration be given to that fact, that this is a dangerous organisation and they have got a record of doing that, of violating human rights.  If I was in the other category, normal category, whereby I was not being pursued by the CIO, then I would not have applied under those grounds.

KIRBY J:   Yes, thank you, Mr Nyoni.  Have you said everything that you want to say to the Court in support of your application?

MR NYONI:   Yes.

KIRBY J:   Yes, thank you.  Ms Kennedy, the Court does not need your assistance on the application.  I notice that the applicant made a suggestion in relation to the costs order but the Minister asks that the applicant pay the costs of the application.  Is that still the Minister’s position?

MS KENNEDY:   Yes, that is still pursued, your Honour.  We note that the applicant claims poverty in relation to that and that, traditionally, has not been a ground to refuse costs following the event.  So, we pursue that application.

KIRBY J:   Whether in fact it is actually recoverable maybe a different matter.

MS KENNEDY:   That is a matter for another time, in effect, your Honour.

KIRBY J:   Yes.  Mr Nyoni, the Court is going to dismiss your application but you made a special application in relation to costs.  Normally, costs are ordered against the party who fails.  Is there anything additional that you want to say as to why the costs should not be ordered against you?  Whether the Minister will actually be able to get the money out of you may be a different matter but the formal order of the Court, when it dismisses an application, is, normally, an order that the applicant who fails must pay the Minister’s costs.  Is there any reason why, in your case, it ought to be different?

MR NYONI:   Well, is nothing I can add to that, your Honour.

KIRBY J:   Yes.  Thank you very much, Mr Nyoni.

There is no reason to doubt the correctness of the decision of the Full Court of the Federal Court of Australia.  The application is therefore dismissed.  Although the applicant urged that special provision should be made in his case because a costs order would be unbearable to him, there is no sufficient reason to depart from the ordinary rule.  Accordingly, the application is dismissed.  The applicant must pay the Minister’s costs.

AT 1.27 PM THE MATTER WAS CONCLUDED