WADF v MIMIA

[2003] HCATrans 433

[2003] HCATrans 433

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P65 of 2002

B e t w e e n -

WADF

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 24 OCTOBER 2003, AT 10.53 AM

Copyright in the High Court of Australia

MR J.L. CAMERON:   May it please the Court, I appear for the applicant.  (instructed by the applicant)

MR M.T. RITTER:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

GUMMOW J:   Yes, Mr Cameron.

MR CAMERON:   There should be before the Court an amended summary of argument and an amended draft notice of appeal.

GUMMOW J:   There is also a respondent’s summary of argument.

MR CAMERON:   There is, your Honour, yes.

CALLINAN J:   Your point is simply that the photographs should have been received and considered.  Is there something else?

MR CAMERON:   No, that is essentially it, your Honour.

CALLINAN J:   If they had been received, how might their reception have made a difference?

MR CAMERON:   That depends on what is shown in the photographs.  My submission would be that ‑ ‑ ‑

CALLINAN J:   It showed different‑looking corpses.  Could they have showed anything else?

MR CAMERON:   The difficulty is that nobody ever asked.  The question, in my submission, which should have been asked by the Tribunal when the applicant was invited to say whether there was anything else and he raised the photographs and the Tribunal said, “I accept that you worked for the committee” – she essentially misled him.  If she had said, “What do these photographs show?” ‑ ‑ ‑

CALLINAN J:   What could they have shown?  From the best point of view of your case, what would the photographs have shown?  Let us not be secret about it.  What did the photographs show, on your account?

MR CAMERON:   I have no idea, your Honour, because unfortunately the latest contribution of the Minister towards access of justice in these matters is that the Minister no longer provides an interpreter, so I have a client in Baxter that I have been unable to communicate with.

CALLINAN J:   But if the photographs exist, why could they have not been put before us on a special leave application, not as evidence in any appeal, but as evidence of the sort of evidence that should have been received, and was not received, by the Tribunal?

MR CAMERON:   If we go back, in my submission, one step, the appropriate course was for the Tribunal to have said, “I am satisfied that you work for the committee, but I am not satisfied about this body swapping.  Do the photographs assist you in any way in demonstrating that?”

CALLINAN J:   There is a limit to the extent to which the Tribunal, as a practical matter, can make inquiries, and, indeed, there is a real question as to the extent to which the Tribunal is bound to make inquiries.  But taking the best possible view of that that we can, for your case, how can we possibly speculate about the photographs, and, indeed, why should we speculate about them, when you have not chosen to put them before us?

MR CAMERON:   In my submission, you should not speculate about them, but on the evidence which was before the Tribunal the photographs showed a difference between what the applicant referred to as “martyrs”, who would have been soldiers who died in the war – and presumably some of the remains may have had identification tags, they may have had uniforms – and, on the other hand, if one of the photographs – and I am speaking hypothetically – showed that there was a corpse with a University of Tehran T‑shirt and a bullet hole through the centre of the skull, that may well have assisted the applicant to prove his case.

CALLINAN J:   But the onus is upon you to demonstrate why should get special leave, and you cannot possibly satisfy that onus unless you can demonstrate to us that any appeal you might bring has some prospects of success.  In order to demonstrate that, you have to show that evidence was available, relevantly, in this case, and should have been obtained, which would have allowed you to present a better case or a different case.  You do not even give us the benefit of that evidence.

MR CAMERON:   I would have to accept that criticism, yes.

GUMMOW J:   Anyhow, having accepted it, what do you then say?

MR CAMERON:   I cannot say anything, the best thing I can do is to sit down.  I think your Honours would probably agree with that.

GUMMOW J:   We are always pleased to hear you, Mr Cameron.  We do not need to hear from you, Mr Ritter.

Notwithstanding what has been put forcefully in the written submissions, we are of the view that there would be insufficient prospects of success of an appeal in this matter.  Accordingly, special leave is refused with costs.

AT 10.59 AM THE MATTER WAS CONCLUDED