WAAU v MIMIA

[2003] HCATrans 443

[2003] HCATrans 443

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P21 of 2002

B e t w e e n -

WAAU

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 PERTH ON FRIDAY, 24 OCTOBER 2003, AT 11.49 AM

Copyright in the High Court of Australia

MR G.M.G. McINTYRE, SC:   If it please the Court, I appear for the applicant.  (instructed by the applicant)

MR P.R. MACLIVER:   If it please your Honours, I appear again for the respondent.  (instructed by Australian Government Solicitor)

KIRBY J:   Yes, Mr McIntyre.

MR McINTYRE:   Thank you, your Honours.  Your Honours, I have prepared a set of written submissions which ‑ ‑ ‑

KIRBY J:   Yes, we have received that, a little late, but we have read it.

MR McINTYRE:   I am sorry, your Honour.

KIRBY J:   We are grateful to you for providing your assistance to the Court in this matter.

MR McINTYRE:   Perhaps the first thing to say about those submissions is that in paragraph 1 it indicates that the special leave question is based on a “no evidence” issue, which is the one which would emerge out of 476(1)(g) and subsection (4)(b) of that section.

KIRBY J:   Essentially you are complaining about the way the Tribunal put various things to the applicant.

MR McINTYRE:   Yes.

KIRBY J:   Which you say required him to respond to speculative questions that were asked.

MR McINTYRE:   Yes.

KIRBY J:   On the other hand, a Tribunal is in a cleft stick here.  If it has anxiety about the apparent unbelievability of a point and does not raise those concerns and then proceeds to dispose of the matter on that footing and has not signalled it to the applicant and has not alerted the applicant so the applicant can respond as best he or she can, then we have cases before the Court saying that there has been a breach of the rules of natural justice.

MR McINTYRE:   Yes.

KIRBY J:   So it is a difficult problem from the Tribunal’s point of view.

MR McINTYRE:   Well, yes and no, your Honour.  What I was about to say is that what - I think probably the submission that I make is probably better characterised as a natural justice point.  That is that the question of whether it is procedurally fair not so much to put the questions, but to then rely on the speculative answers in order to judge credibility, that is really the point.  So that it is not unfair perhaps to put questions of that kind, but then to attribute some weight to answers which can only be speculative and to use the weight attributed to those answers to judge the credibility of the applicant is really what the problem is.

KIRBY J:   I have difficulty with that, because once you concede that it is proper and permissible for the Tribunal to alert the witness to the concerns, then to say that they cannot use the answers is a little bit farfetched, with respect.

MR McINTYRE:   Well, only because the answers cannot be either true or untrue.  They are speculative by their nature.  But what the Tribunal has done is to decide that they are untrue.  So that is what it cannot do.  I mean, it is difficult.  The case of Palmer, which I mentioned in the submissions, which is of course a criminal case, that same sort of process occurred where –  and it probably often occurs in criminal trials and it perhaps does not often get to appeal, but the ‑ ‑ ‑

KIRBY J:   But is there not a very important difference, and that is that, first of all, this is a Tribunal and that is a court.  Second, that it is a Tribunal acting on a generally inquisitorial mode whereas that is a court acting according to an adversarial and accusatorial mode.  Thirdly, that the criminal trial is one where it is the obligation of the Crown to prove beyond reasonable doubt the guilt of the accused, not for the accused to provide a motive for the complainant.  I think there are three very important distinctions between this sort of case and Palmer.

MR McINTYRE:   Well, they are, and I concede all of that, your Honour.  Really, Palmer is perhaps drawn upon to provide some illustration of the nature of speculative answers versus an actual answer as to the facts in relation to the issue in question.  Now, we draw on that to say it was found in Palmer’s Case that that was unfair and we say that has some analogy with the notion of natural justice which, at its base, is about fairness.  So that is perhaps as far as Palmer goes in a sense in assisting the argument.  So the real question is, is it a fair procedure for the Tribunal to rely on speculative answers?  That is really what the argument boils down to and of course ‑ ‑ ‑

KIRBY J:   This is not an argument that was advanced either before the primary judge or the Full Court, I think.

MR McINTYRE:   Certainly not.  This matter has come through to this level unrepresented, like so many of these matters.

KIRBY J:   Yes.  Well, it is proper that you should examine the issues, as you have, with great care and attention and I am grateful to you for doing that, but is not the danger of what you have done and that we are there getting into a position of parsing and analysing the way the Tribunal conducts the hearing and every question and every issue that the Tribunal raises, which this Court has said is not the correct way to conduct judicial review.  Effectively we are being asked to conduct it for the first time on this ground.

MR McINTYRE:   Yes.  The reason that I would urge that you do so is that essentially what I put is that there emerges from this an unfortunate procedure which may be followed by other Tribunals – it may already have been followed by other Tribunals – of seeking to determine credibility on a basis which cannot determine credibility, and that is the speculations which the applicant may have been led into making by the way in which the Tribunal conducted its inquisitorial process.  So what I am suggesting is that that is an adoption of a process which ought to be cut short by this Court having a look at the matter and providing some clarification to this Tribunal and others about how that inquisitorial process ought to be based on probative evidence. 

You will see that I am also relying on the broader view of natural justice, which Justice Deane has spoken of in Bond and in Pochi and I recognise that that is not a view which was spoken of by any of the other members of the Court in Bond or indeed – it is largely a view of natural justice which has been adopted by the English court system but not ‑ ‑ ‑

KIRBY J:   Well, these are very important questions in a sense, because on one view Sir Anthony Mason has said in a lecture that our administrative law has stopped growing and the English administrative law has continued to grow.  The question is whether or not that is true.  But this is not a very good vehicle to be testing those questions because here the Tribunal rejected the credibility of your client.  I realise you say that is bound up in the issue you want to argue, but there were other and many bases on which the Tribunal could reject the credibility of your client.  So if one were to confront Justice Deane’s view, it would seem more appropriate to do that in a more promising factual situation.

MR McINTYRE:   Yes.  The only thing I would again say in relation to that, your Honour, is that in the facts situation here, although I agree that there is a range of other matters which the Tribunal took into account, there seems to be quite a large quantity of matters which followed this erroneous process which I suggest I have identified.  Now, clearly there is a range of

findings of implausibility about the story, but then it is mirrored by this five or so propositions which invite speculation.  We would contend that that has coloured the overall conclusions in a crucial way as to the question of credibility.  That really is, in a nutshell, how the case is put and I think perhaps I cannot assist you any further.

KIRBY J:   You have been very helpful so far by putting those arguments in writing.  Doing so has assisted this Court greatly.  The Court does not need your assistance, Mr Macliver.

The applicant arrived in Australia in December 2000 with his family.  He claims that he is a stateless Palestinian with residency rights in Syria.  He was refused protection visas by the Minister’s delegate in March 2001.  The Refugee Review Tribunal affirmed the delegate’s decision in May 2001.  The applicant failed in applications for judicial review before the Federal Court, both at first instance before Justice French and in the Full Court before Chief Justice Black, Justice Wilcox and Justice Moore.

He now seeks special leave to appeal to this Court.  The basic difficulty in the applicant’s case is that the Tribunal found that his evidence, to the effect that he had been considered a spy in Syria, putting his life at risk if he were returned there, lacked credibility and was implausible.  It was on that footing that the applicant’s asserted basis for a well‑founded fear of persecution was rejected.  Such a fear is necessary to qualify for a protection visa.  No appellable error of law has been shown in the reasons of Justice French or of the Full Court.  No error of procedure has been demonstrated.  The case is simply one of disputed facts.  That does not attract a grant of special leave to appeal to this Court, which is not authorised, or warranted, to undertake merits reviews such as the applicant seeks.

An attempt was made in this Court, effectively for the first time, to demonstrate an error of law in the way that the Tribunal had asked the applicant to speculate on the factual claims he was making concerning the conduct of third parties in relation to him and the way in which the answers were then used by the Tribunal.  There is no merit in this complaint. 

This Court has repeatedly deprecated pernickety scrutiny of the reasoning of the Tribunal:  see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271, 272 and 291. The same goes for an examination of the Tribunal’s questioning during the hearing. In their context, the questions asked by the Tribunal were proper. They were designed to give the applicant an opportunity to respond to concerns which the Tribunal obviously felt about the apparent implausibility of the evidence of the applicant. The new way in which the case is presented is therefore rejected.

Special leave to appeal is, accordingly, refused.  The applicant must pay the Minister’s costs.  Adjourn the Court to Monday, 3 November in Hobart, Tasmania.

AT 12.01 PM THE MATTER WAS CONCLUDED