WADA v MIMIA

[2003] HCATrans 442

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P69 of 2002

B e t w e e n -
WADA
Applicant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 24 OCTOBER 2003, AT 11.45 AM

MR L.A. TSAKNIS: If the Court pleases, I appear for the Minister. (instructed by Australian Government Solicitor)

KIRBY J: We do not have any oral argument on behalf of the applicant, is that correct?

MR TSAKNIS: No, that is my understanding.

KIRBY J: The Court has considered the written arguments of the parties and we are now in a position to proceed to our reasons. We do not need the oral assistance of counsel for the respondent.

This is another application for special leave to appeal by an applicant for refugee status. He is an Iranian national who arrived in Australia in November 2000 and made his application in March 2001. The application was refused by the delegate of the Minister. He then sought review by the Refugee Review Tribunal and judicial review in the Federal Court successively before Justice Carr at first instance and then before a Full Court. His applications have all failed.

The basis of the applicant’s claim was that he had a well‑founded fear of persecution in Iran because of his political profile. He claimed to be a proponent of a separate Arab State and asserted that he had been detained in Iran on a number of occasions before he fled. The Tribunal rejected the applicant’s claims, finding that they were fabricated, internally inconsistent and unconvincing when compared with other evidence. Correctly, Justice Carr found that the essential basis for the rejection of the claim was the Tribunal’s decision that the applicant lacked credibility.

The basis for the application for special leave to appeal is essentially that the applicant had an inadequate interpreter in the Tribunal and that he therefore did not understand an invitation to send a witness statement after the hearing. There is no reasonably arguable basis that errors of law, of jurisdiction or of procedure have occurred. The case is a simple one of fact. The applicant was disbelieved. No sufficient foundation has been shown for the intervention of this Court. Special leave to appeal is, accordingly, refused.

Does the Minister ask for costs?

MR TSAKNIS: Yes, may it please the Court.

KIRBY J: Was it necessary for the Minister to be represented today, given that the applicant did not seek to put oral submissions to the Court?

MR TSAKNIS: It is customary for the Minister. Whether it was necessary or not, your Honour, the Minister was here in case there were any questions for the assistance of the Court.

KIRBY J: Yes, I appreciate that, but I am just a bit concerned that it loads the applicant up with costs. However, Justice Heydon points out that this is a matter before the Full Court and therefore it is appropriate that the Minister be represented in case the Court has any questions. I agree with that. Accordingly, the special leave application is refused and the applicant must pay the Minister’s costs.

AT 11.49 AM THE MATTER WAS CONCLUDED

The parties to this proceeding were the World Anti-Doping Agency (WADA) and the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA). The dispute concerned the lawfulness of a decision by MIMIA to refuse to grant a visa to an individual, Mr. X, who had been banned from sport by WADA for a doping violation. The matter came before the Full Federal Court of Australia.

The central legal issue before the Full Federal Court was whether the decision by MIMIA to refuse Mr. X's visa application, on the grounds that he was an unlawful non-citizen due to his doping ban, was affected by an error of law. Specifically, the court had to consider whether MIMIA had correctly interpreted and applied the relevant provisions of the *Migration Act 1958* (Cth) and associated regulations in deeming Mr. X to be an unlawful non-citizen.

The Full Federal Court held that MIMIA had erred in law. The court reasoned that the definition of an "unlawful non-citizen" in the *Migration Act* did not extend to individuals banned from sport by WADA. The court emphasised that the grounds for deeming a non-citizen unlawful were exhaustively set out in the Act and did not include international sporting body sanctions. Therefore, MIMIA's decision to refuse the visa on this basis was unlawful.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established