WACK v MIMA

[2003] HCATrans 269

[2003] HCATrans 269

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P54 of 2002

B e t w e e n -

WACK

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 8 AUGUST 2003, AT 11.31 AM

Copyright in the High Court of Australia

MR J.R.B. LEY:   If it please, your Honour, I appear for the applicant.  (instructed by the applicant)

MR P.R. MACLIVER:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

GUMMOW J:   Yes, Mr Ley.

MR LEY:   Your Honours, the single point I endeavour to make in this application is contained in the substituted grounds of appeal which you should have.  Unfortunately, I have not provided your Honours with a summary of argument.

GUMMOW J:   We have the gist of it, I think.

MR LEY:   Yes.  The point I seek to make really deals with the reasoning of the Tribunal on page 24 of the application book where what the Tribunal did in effect was that it considered what the applicant had to say in the first interview where he said very little about many things in terms of what occurred in Iran but gave some reasons as to why it was he was coming to Australia.

GUMMOW J:   Well, the Tribunal fixed upon the initial interview and said that the rest was not really genuine.

MR LEY:   That is right.  That determined it really.

GUMMOW J:   Yes.

MR LEY:   And the way they put it, which I say is incorrect - they eventually concluded that they were not credible.  The way they put it appears on page 27 of the application book.  It says:

The Tribunal finds that the only reliable evidence of the applicant’s true reasons for departing Iran are the claims he made during the arrival interview.  His later claims have become corrupted by the passage of time and his contact with others and the Tribunal places no weight on these claims.

It is not very clear at all what that might mean, “corrupted by the passage of time”.

HEYDON J:   It means other people told him what story he should tell and he duly told it, and the Tribunal rejected that story.

MR LEY:   That is what they are concluding.  I would not have thought - it is not apparent on the papers that there was any evidence before them about that.  That is something that they have concluded, I suppose.  In relation to the application for a protection visa he was represented by a migration agent but there was nothing else about him being told by others so it is something they have concluded in their own part.  Again, on page 24, where they deal with the two reasons he gave for the difference between what he said on the first occasion and what occurred later, they say:

The Tribunal does not accept the applicant’s explanation for failing to make all of his claims when he first arrived in Australia.  The applicant asserted that he had no experience of being in another country and had no information about the refugee criteria.

Well, that is reasonable, in my respectful submission.  And then down the page at about line 28:

The applicant claims that he was afraid to talk about political matters upon arrival in Australia because he did not think Australia would accept people who had problems in their home countries.  He claims that he believed that Australia had good relations with Iran and feared that Australia may provide information about him to the Iranian authorities.

Again, in my respectful submission, a reasonable fear.  It is my submission that the Tribunal was under an obligation if it was discharging its duty properly to deal with those explanations.

In my submission, the way in which they dealt with them really shows that they did not give them any consideration at all.  The only way they deal with those explanations is simply by saying - in the first instance he had been warned.  He was given the normal warning, “You should understand that if the information you give at a future interview is different this will raise doubts about your credibility”.

Of course if you look at the way in which the Tribunal dealt with the matter the things he said when he first arrived were not matters which related to why it was he left Iran.  In fact, they were reasons really why he chose to come to Australia, and if one looks at it in that light one can see that the warning really would not have any impact because it is not being said that anything he said on the first occasion is wrong, simply that what he says on the second occasion supplements what he says on the first occasion.  Equally, the manner in which they reject ‑ ‑ ‑

GUMMOW J:   You may be right about all of this.  All of this may have been one view that could have been taken, but another view was taken and

it was a view that was taken within jurisdiction by the look of it and we cannot really get into the merits review of the fact‑finding process, I think.  Is that not the problem?

MR LEY:   My suggestion, your Honour, is that because they paid so little account to his explanations and then simply went really straight on from there, then that reveals that they have acted outside their jurisdiction.  Those are my submissions.

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

This is not a case for the grant of special leave to appeal.  The matter depended upon assessments made by the Refugee Review Tribunal of the credibility of the applicant.  It was open to Justice French in the Federal Court of Australia to conclude that there was no reviewable error in the reasoning of the Tribunal.  No error on the part of the Full Court of the Federal Court has been demonstrated.  Accordingly, special leave is refused and refused with costs.

AT 11.38 AM THE MATTER WAS CONCLUDED