WACD v MIMA

[2003] HCATrans 424

[2003] HCATrans 424

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P66 of 2002

B e t w e e n -

WACD

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 23 OCTOBER 2003, AT 3.00 PM

Copyright in the High Court of Australia

MR C.P. SHANAHAN:   May it please the Court, I appear for the applicant.  (instructed by the applicant)

MS L.B. PRICE:   If it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Shanahan.

MR SHANAHAN:   May it please the Court, this is an application which concerns the denial of a right to be heard and when that might constitute a jurisdictional error.  The applicant in this case is an Iranian non‑citizen of Australia, who has applied for ‑ ‑ ‑

GUMMOW J:   You have seen the addendum to the respondent’s summary of argument?

MR SHANAHAN:   I have, your Honour, yes.  The applicant applied for a protection visa and was declined.  He sought review in the Refugee Review Tribunal and then by way of an application for judicial review to the Federal Court and, ultimately, to the Full Court.  The applicant, like all applicants for protection visas, claimed a well‑founded fear of persecution were he returned to Iran because of his participation with a friend in a demonstration in Iran.

It is important to identify, I think, three elements of the claims made before the Tribunal before proceeding.  The first one of those is that the applicant claimed that he and his friend had participated in this demonstration and that following the demonstration his friend had been arrested by Sepah, the Iranian Ministry of the Interior – that appears at application book page 6, lines 25 to 30 – and that immediately following the demonstration, after his friend was arrested, within five or six days the authorities began to look for the applicant.  So that is the first claim that is important.

The second is that the applicant claimed that his father had been visited by officials immediately following the demonstration with a photograph of the applicant, which was shown to the father and other people in the area, and the applicant concluded that they were seeking to identify him.  That claim appears at page 11 of the application book, lines 20 to 25. 

The third important claim was the claim that his father had been detained.  This is the claim that is known as the “detention claim” in the papers and it is important, perhaps, to just briefly take your Honours to page 14 of the application book to consider what the nature of that claim was.  That appears at or about line 10, the paragraph beginning “The Applicant”, on page 14.  At line 10:

The Applicant agreed that he probably was not on a blacklist at the time that he left, but he believed that he was now.  He said that about two months ago he had phoned to Iran, and through a friend had spoken to his mother who had told him that his father had been detained.

That was the detention claim in the Tribunal.

It is the applicant’s contention in this application that the detention claim, when taken in the context of the two other important claims that I have taken the Court to, clearly indicated that the applicant relied on his father’s detention as evidencing the prospect of his persecution for his political opinion, in that the father’s arrest came immediately following the demonstration and in the context of an investigation that had already involved his father being shown photographs by officials investigating the demonstration.

It is well established, the applicant contends, that a claim for protection has to be founded on a real chance of persecution.  There has to be a real and substantial basis for that fear, not merely an assumed or a speculative fear.  It is submitted that in this particular instance, were the applicant’s claims accepted in relation to his father’s detention, that would provide a real basis for that fear of persecution.  The Full Court appeared to accept that.

It is important to make this point to your Honours in relation to that.  When the matter ultimately came before the Full Court, the applicant raised new matters.  Those new matters cannot be considered for the purposes of his application because they were raised only in the Full Court, but they did go to amplify his claims in relation to his father’s detention.  The Full Court, at page 51 of the application book, at line 10, said:

If it is true that his father has been held for fifteen months, and interrogated by means of torture as to the whereabouts of the appellant, that would be powerful evidence that the authorities in Iran have a real interest in finding the appellant.

Now, the applicant does not rely on that information, because that information was only provided on the appeal.  The purpose of taking your Honours to that at this time is simply to demonstrate how the allegation of the father’s detention could constitute a basis for a real and substantial fear of persecution in the applicant.

The information before the Tribunal is the three important claims that I have taken the Court to already.  It is clear, the applicant says, from the nature of those claims and the context that the detention of the father was relied upon to establish the fear of persecution in the applicant, persecution in respect of his political opinion were he returned to Iran.

The travel of the proceedings went something like this.  The matter then went on an application for judicial review before his Honour Justice Carr in the Federal Court.  His Honour Justice Carr became concerned that there did not appear to be findings made in respect of the detention claim.  This is the claim that I have already taken the Court to.  His Honour adjourned the proceedings in the Federal Court for the specific purpose of getting submissions from the respondent as to whether or not the failure to make findings in relation to the detention claim constituted a reviewable error.  He made orders that those submissions then be provided to the applicant to afford the applicant the right of reply.

Ultimately, in the Full Court, it was conceded by the respondent that the applicant had never received those submissions.  His Honour Justice Carr then made his decision without the benefit of the applicant’s view in respect of that set of submissions.

GLEESON CJ:   Then the Full Court set out to inform itself as to what the applicant could have said in response to the submissions if he had received them.  What is the answer to that question?

MR SHANAHAN:   Your Honour the Chief Justice, the answer to that question is simply that that is the wrong test, in the applicant’s respectful submission.  The true test in relation to whether or not there had been a reviewable error in the Federal Court was simply whether or not the applicant had been denied a right to be heard in relation to a relevant matter.

GLEESON CJ:   Whether it is the true test or not, what is the answer to the question?  What could the applicant have said if he had been given the opportunity to respond to the submissions, which, after all, were submissions about what a lawyer would call the meaning of the Tribunal’s judgment or reasons?

MR SHANAHAN:   The Full Federal Court when they answered the question “What could be said?” pointed out that, in their view, all that could be said in relation to the matter was that he would have been able to repeat that his father had been arrested.  This appears at page 50 of the application book, between lines 10 and 15.  The applicant says no; the applicant could have said a lot more.  The applicant ‑ ‑ ‑

GLEESON CJ:   I am sorry, the question was, what could he have said about the submissions on whether the Tribunal had made a finding of fact about a particular matter?  That was the point of contention at that stage.

MR SHANAHAN:   I am sorry, your Honour.  The applicant would have said that there had been no finding in relation to that matter.

GLEESON CJ:   That is all, right or wrong?

MR SHANAHAN:   There was no finding about that matter, it was a relevant consideration, and that constituted a jurisdictional error of the type that is described in Yusuf, in relation to the failure to engage a relevant consideration, the relevant consideration being the detention claim.  All that I am taking your Honours to is that the Full Court, when they sought to answer that question, said that when one looks at what was said in the Tribunal, all that the applicant could do would be to repeat the facts, the factual claims that had been made in the Tribunal, and they were simply to the effect that the father had been arrested. 

The applicant would also have said, in the submissions, had the applicant been afforded the right of reply, that when you look at the context of the father’s detention claim, it is quite clear that the allegation was that the detention arose out of the applicant’s political activity by joining in the demonstration.

Your Honours, it was accepted in the Full Court and found, on the applicant’s contention, that there had been a denial of natural justice to the applicant before his Honour Justice Carr.  That finding appears at application book page 49, at about lines 15 to 20, where the Full Court said this:

In answer to a question from the Court, the appellant –

this is on the Full Court appeal –

said that he did not receive the submission.  Counsel for the Minister accepted this assertion as a fact, without requiring the appellant to swear to it.  It thus appeared that there had been a failure to afford natural justice to the appellant in the proceeding before the learned primary judge. 

My friend makes something of that word “appeared”, I noticed in the respondent’s outline.  Further down page 49:

The question, then, was whether the denial of natural justice affected the outcome of the proceeding before the learned primary judge.

It seemed quite clear that the Full Court had accepted that the failure to afford the applicant the right of reply in the Federal Court had constituted a denial of natural justice.

The question then becomes, in the applicant’s respectful submission, simply whether or not the denial of the right to be heard related to a material or a relevant consideration.  If it did, then that failure to afford the applicant the right to reply constitutes a breach of natural justice and a reviewable error.  There are some primary principles, the applicant says, in relation to that issue.  They start with the decision in Kioa v West, in relation to the nature of the right to be heard, particularly in the decision of his Honour Justice Mason and his Honour Justice Brennan in respect of when it can be said that a failure to afford a litigant the right to be heard can constitute a reviewable error.

The applicant provided some written material that he sought to rely on in two sections in two books.  There is a reference to Kioa v West (1985) 159 CLR 550 at page 14 of the first book, where his Honour Justice Mason says, at 582:

It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.

That is the right that the applicant says he was not afforded, by being denied the right to reply to the submissions which were ultimately relied upon before his Honour Justice Carr and in the Full Court.

GUMMOW J:   What do you say about paragraph 26 on page 50 of the Full Court judgment?

MR SHANAHAN:   It is accepted, your Honour, that that information cannot be relied upon in these proceedings, because it was not in the nature of information provided to the Tribunal, nor was it provided to his Honour the learned primary judge.  The point that the applicant makes about that is that it is not necessary to rely on that additional material because of the three claims that I set out to the Court at the outset of these submissions, which clearly show that, in the context that the detention claim was relied upon, it was relied upon for the same purpose that the additional information was ultimately proffered by the applicant.  It is simply more detail of the same claim.

Another authority that the applicant seeks to rely upon is Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Miah, which is a decision of this Court in 2001 and appears in the further material filed by the applicant.  Essentially, what happened with Mr Miah was that he applied for a protection visa and the Minister’s delegate decided the question on events that had occurred after the application had been made, which related to the Bangladeshi government.  Miah was a case that is different from this case in two ways.  One is the timing at which the additional information was provided, and the second is the nature of the additional information, in that it was factual information that was provided in Miah, not the opportunity to be heard in relation to legal argument.

The applicant says that, despite those differences, the principles remain the same because, ultimately, what the applicant has to do is to meet the case that is brought against him.  He cannot do that without being afforded a right to be heard in respect of a central claim.  The detention claim was absolutely central to his claim because it provided a basis, were it accepted – as is set out by the Full Court in the passage I have taken your Honours to – for an independent corroboration, if you like, of the applicant’s account of his fear of persecution.  In these circumstances, there are not a lot of mechanisms whereby an applicant in this applicant’s position can do that.

It is clear, the applicant says, that the entitlement to know the case against one in relation to a matter arising out of a protection visa has to be qualified by the requirement that it be a material consideration.  That is really what the applicant contends was the intention of the Full Court in looking at the question “Would it have made any difference?”  Really, the inquiry should have been “Is it a relevant or material consideration to the exercise of power?”  Were it a relevant or material consideration, it fell to the court to afford the applicant the opportunity to respond.

Your Honours will see that the applicant has also provided a copy of Opitz v Repatriation Commission, which is a case relating to the proceedings in the Administrative Appeals Tribunal to cancel a service pension where the applicant was denied the opportunity to comment in the hearing because of an earthquake in the Philippines.  He was seeking to communicate by way of a telephone hearing with the AAT in Australia.  His Honour Justice Hill, at page 10 of the first book of written materials, at page 59 of that report, indicated that the question whether there had been a breach of procedural fairness that constituted an error of law which required the matter to be remitted to the Tribunal was the question.

The opinion of a lay advocate as to whether or not Mr Opitz would have been able to say something that made a difference was not the question, and, with respect, that is the issue here.  It is not a question of what could the applicant have said; it is simply a question of is this a material consideration?

GLEESON CJ:   But the consideration was a consideration about the form of the Review Tribunal’s reasons.  It was not a consideration about whether the father had been detained.  The matter upon which the further submissions were called for by Justice Carr was not about whether the father had been detained; it was about whether the Tribunal had made a finding about that matter.

MR SHANAHAN:    Yes.  Your Honour, in Yusuf, in the joint judgment of their Honours Justices McHugh and Hayne and your Honour Justice Gummow, their Honours point out that the question is not whether or not the Tribunal has an obligation to make findings, but whether or not they have made a consideration of all of the relevant considerations.  There is a lengthy passage at or about paragraph 70 in that judgment in which the issue is not whether the Tribunal have an obligation to make findings of fact, but whether they have made a consideration of all of the relevant considerations.

It is put on behalf of the applicant, in relation to your Honour the Chief Justice’s observation about the purpose of the submissions, that in this case what would have been put was that the right question was not necessarily whether or not the Tribunal had failed to make a finding, but whether or not it had failed to engage a relevant consideration.  That would have been in the nature of a reply.  Your Honours, they are the submissions of the applicant in this matter.

GLEESON CJ:   Thank you, Mr Shanahan.  We do not need to hear you, Ms Price.

In this matter the Full Court dismissed an appeal from Justice Carr, who in turn upheld a decision of the Refugee Review Tribunal.  The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave.  The application is refused with costs.

AT 3.18 PM THE MATTER WAS CONCLUDED