WAEH v MIMIA

[2004] HCATrans 267

[2004] HCATrans 267

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P131 of 2002

B e t w e e n -

WAEH

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 6 AUGUST 2004, AT 11.43 AM

Copyright in the High Court of Australia

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

McHUGH J:   Yes, Mr Macliver.

MR MACLIVER:  I understand this is a matter where the Court is deciding the matter on the papers.

McHUGH J:   Yes, I have given a direction that the matter be decided on the papers and the Court will now give its reasons. 

This is an application for special leave to appeal against a unanimous decision of the Full Court of the Federal Court in relation to a decision of a delegate of the Minister not to grant the applicant a protection visa.  The Full Court upheld a decision of Justice Carr in the Federal Court, who had dismissed the applicant’s application for an order of review of a decision of the Refugee Review Tribunal.  The application for special leave should be refused on the grounds that the decision of the Full Court discloses no error of law and involves no question of general importance. 

The Full Court acknowledged that the Tribunal’s treatment of the evidence of one witness was unusual, the Tribunal, having elected to receive only written material from the witness, and that the procedure had “great potential to be unsatisfactory”.  Nevertheless, the Tribunal’s failure to consider whether to exercise its investigative powers, and, for example, call the witness to give oral evidence, does not constitute a failure to take into account a relevant consideration for the purposes of section 424 of the Act. 

In any event, such a failure does not give rise to reviewable error under section 476(1) of the Act.  Further, this case is not one in which the interests of justice require the Court to consider the decision of the Full Court.  Accordingly, the application must be dismissed with costs. 

The Court will now adjourn to reconstitute. 

AT 11.45 AM THE MATTER WAS CONCLUDED