SZHPI v MIAC & Anor

[2008] HCATrans 313

[2008] HCATrans 313

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S159 of 2008

B e t w e e n -

SZHPI

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 AUGUST 2008, AT 12.00 PM

Copyright in the High Court of Australia

MR R.C. TURNER:   Yes, your Honours, I appear for the applicant.  (instructed by Turner Coulson Immigration Lawyers)

MR T. REILLY:   I appear for the first respondent, if your Honour pleases.  (instructed by Australian Government Solicitor)

GUMMOW J:   There is a submitting appearance from the Tribunal, which is the second respondent.  Yes, Mr Turner.

MR TURNER:   Your Honours, each of the contentions in the draft notice of appeal arise from the one conduct of the Tribunal.  Your Honours, to understand that conduct if I could first take you to page 5 of the application book which is a part of the decision of the Tribunal, and at the fourth dot point, after recounting his claimed history of persecution in Lebanon, the applicant says:

This is known from everybody but the media transmitted only the incidents related to the famous persons.  I received many threats after the withdrawal of the Syrian army.  I decided to run away to Miziara and I knew from my family that some people are asking indirectly about my whereabouts.

So right from the outset the applicant had put forward his case on the basis that there was a series of persecutory incidents which caused him to leave his home and then at some time later he came to Australia.

Now, the next chain is the hearing before the Tribunal, and there is a transcript of that hearing which was before the courts below which starts at page 64 of the application book, and the relevant passage is over on page 68 of that book where the Tribunal questions him about his residence, and starting at line 7 of the transcript, about line 10 in the application book, said:

Q.       And how long did you live at that address?
A.       Six years.

Q.       So since 1999; is that correct?
A.       Yes.

Q.       And did you reside there continuously?
A.       Continuously for six years.

Q.       Do you understand what I mean by “continuously”?
A.       Do you mean I live there and didn’t move somewhere else?

Q.       Yes.
A.       Yes, I never leave the place.

Q.       So you ate there, you slept there?

The Tribunal here is quite properly, in my respectful submission, exploring with him where he lived and what lead him to come to Australia.  The answer then when he understands exactly what is being put to him, he says:

A.       I was there until the problem happened, and I was there.

Q.       So you were there from 1999 until you came to Australia in 2005?
A.       Yes.

Q.       So you ate there, you slept there, you lived there?  I want to be absolutely clear about this.

GUMMOW J:   I think, Mr Turner, you really have to demonstrate to us error on the part of Justice Branson.

MR TURNER:   Yes, your Honour.

GUMMOW J:   After all, that is the basis of the appeal.

MR TURNER:   Yes, your Honour.  In my respectful submission, what her Honour did was to start from the transcript and her judgment starts at page 44 of the book.

GUMMOW J:   Yes.

KIRBY J:   That is what you normally have to do at judicial review unless exceptionally some evidence is allowed at the judicial review application adding some aspect of departure from procedural fairness or something of that kind.

MR TURNER:   Yes, your Honour, with respect, I agree with your Honour, but in this case the whole question before her Honour was whether or not the Tribunal had correctly found that the applicant’s evidence had shifted throughout the process.  So in that sense the starting point is his protection visa application to see whether he had said in that application that he had moved, and as I have taken your Honours to, he did say in his protection visa application that he had moved.

In the Federal Court, under the consideration, the starting point there is the transcript, and that exchange that I was taking your Honours to in the transcript.  Now, if one starts at that point and simply looks at two places in

the transcript, then it is easier to see that it is arguable that his evidence did change.  However, if one goes back to his initial claim, and his evidence that he did move, then that evidence of him leaving home after the incidents that he described is consistent at all three places and is in fact consistent ‑ ‑ ‑

KIRBY J:   It sounds awfully like you are trying to reargue the facts and that is not the role of this Court and specifically it is not the role in a case where you have to show jurisdictional error on the part of the Tribunal.

MR TURNER:   Yes, I understand that.

KIRBY J:   Hence the focus of Justice Branson on the evidence before the Tribunal.

MR TURNER:   Yes, but the evidence before the Tribunal was also his protection visa application in which he made the claim of leaving home after the incidents and then going into hiding.  Now, that earlier evidence was not considered by her Honour when she considered whether the Tribunal was correct in finding that his evidence had shifted over time.  It is all too common that an applicant’s evidence does shift over time, but this is not such a case.  The only minor divergence from his evidence was what appears to have been a misunderstanding of the question he was being asked.  As soon as that misunderstanding was cleared up he reverted to his evidence that he had after these incidents left home and gone into hiding at various places until he came to Australia.  Your Honour, they are my submissions.  The point is as simple as that.

KIRBY J:   So the case, if it came up to the High Court, would come down to whether or not the Tribunal, which had before it the original application, had not taken that original application into account or sufficiently into account with the oral evidence in reaching its conclusion?

MR TURNER:   Yes, your Honour, and the decision of the Tribunal was particularly damning in relation to his credibility because of what it saw as the shifting of his evidence in relation to his residence without going so far as to mention that the evidence had been consistent from the first application that he lodged to the Department of Immigration.

GUMMOW J:   Yes, thank you, Mr Turner.  We do not need to call on you, Mr Reilly.

The applicant sought a protection visa under the provisions of section 36 of the Migration Act 1958 (Cth). This was refused by a delegate of the Minister whose decision was confirmed by the Refugee Review Tribunal. The Tribunal found that the evidence of the applicant before the Tribunal was “internally inconsistent, implausible and so far‑fetched as to be fanciful”. Attempts to secure judicial review failed in the Federal Magistrates Court and an appeal to the Federal Court of Australia failed. The appeal in the Federal Court was heard by Justice Branson and it is from her Honour’s order that this application is brought for special leave.

It is sufficient to say in dismissing this application that we find no error in the reasoning or conclusion of Justice Branson.  Her Honour’s decision appears to us to have been correct.  There will be no prospect that this Court would disturb that decision.  No jurisdictional error has been shown.  The application is dismissed with costs.

We will now adjourn until 10.15 am tomorrow, Wednesday, 27 August at Canberra.

AT 12.09 PM THE MATTER WAS CONCLUDED