Wagd v MIMIA

[2004] HCATrans 173

[2004] HCATrans 173

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P110 of 2002

B e t w e e n -

WAGD

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 28 MAY 2004, AT 10.36 AM

Copyright in the High Court of Australia

MR G.M.G. McINTYRE, SC:   Your Honours, I appear for the applicant.  (instructed by the applicant)

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

McHUGH J:   Yes, Mr McIntyre.

MR McINTYRE:   Your Honours, I think, will have been provided with a copy of a note headed “Notes on Special Leave Application to the High Court of Australia”.

McHUGH J:   Yes.

MR McINTYRE:   If your Honours have had an opportunity to read that, you will perhaps appreciate the circumstances in which I appear in this matter to put the case as the applicant wishes it to be put.  It appears to me that some issues arise from that.  The first of those is the question of whether in an appeal to this Court, this Court or, indeed, the Full Federal Court below have a power to consider matters which have occurred since the decision of the Refugee Review Tribunal, including, particularly in this case, the fact that this applicant’s name appears to have been published. 

That, of course, depending upon when it occurred in relation to the form of the legislation, would appear to be contrary to section 91X of the Migration Act which prohibits courts publishing a person’s name.  He now says that that has contributed to his fear of persecution.  The question really is whether that is a matter which can be taken into account by this Court.

KIRBY J:   I assume that the hearing in the Federal Court was before 99X came into force.  Is that your understanding?

MR McINTYRE:   No, I do not think it is the case, your Honour.  It may well be that there is a failure to comply with that legislation.  Of course, we do not precisely know the circumstances that may have been…..  One assumes inadvertence.  The question then is ‑ ‑ ‑

KIRBY J:   I remember in those days I would often, when I dealt with matters as a single Judge, anonymise the name of the applicant precisely for the reason that gives rise to your client’s concern.  But on the face of things, if this were a proper foundation for an application, then virtually everyone who had a case in the Federal Court before 2000 or 2001 would have a right, for that reason, to be accepted as a refugee, and that cannot be the law.

MR McINTYRE:   No, it would not – one would have to add to that the fact that there was something to support the fact that there is an added fear of persecution and ‑ ‑ ‑

KIRBY J:   Well, that presents a problem in this case, does it not, because the applicant was disbelieved by the Tribunal?  When he was first interviewed he made no reference to his alleged involvement in opposition politics, so that, as it were, the factual substratum which, with the revelation of the name at an earlier stage in the proceeding, might give rise to the apprehension that founds intervention would not really be present in this case because of the approach that was taken by the Tribunal in disbelief of your client.

MR McINTYRE:   Yes, I think it is right that it would have to be that this factor standing alone would be sufficient to give rise to a fear sufficient to satisfy the Convention in those circumstances, your Honour.  The question of whether a matter which has arisen since the Refugee Review Tribunal’s decision is brought into sharp relief by the fact that section 48A of the Migration Act prohibits any further application once one has been refused.  So this applicant has made an application and the application has been refused and it would appear that there is no other opportunity for him to make an application.  The only remedy it would appear that he now has would be one under section 417 of the Migration Act which leaves it to the executive discretion of the Minister as to whether or not the Minister might choose to substitute a more favourable decision.

This application is brought in that context, that really he has had one opportunity; that opportunity has achieved an unfavourable result and then events have occurred since then.  So the question is whether this Court can provide any satisfactory relief in the context of an appeal.

KIRBY J:   Well, the Court has its jurisdiction under section 75(v) and 75(iii) of the Constitution, but that is not the jurisdiction that is being invoked in this application.

MR McINTYRE:   Yes.  I think, assuming that your Honours have no questions in relation to the matters which are set out in the notes which I have provided, then there is nothing that I would wish to add on that, your Honours.

McHUGH J:   Thank you, Mr McIntyre, your services in these matters are greatly appreciated by the Court and they should be appreciated by the public generally. 

KIRBY J:   I would endorse what Justice McHugh said.

McHUGH J:   This application must be refused.  Insofar as it is sought to rely on errors in the courts below, the application has no prospect of success on appeal.  Insofar as further matters taking place since the hearing before the Tribunal are concerned, they are not matters which can improve the applicant’s case.  Accordingly, the application for special leave is dismissed and must be dismissed with costs. 

AT 10.44 AM THE MATTER WAS CONCLUDED