Wage v MIMIA

[2005] HCATrans 105

[2005] HCATrans 105

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P105 of 2003

B e t w e e n -

WAGE

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 MARCH 2005, AT 9.40 AM

Copyright in the High Court of Australia

MR M.F. BLUE, QC:   May the Court please, I appear for the applicant.  (instructed by Refugee Advocacy Service of South Australia Inc)

MS S.J. MAHARAJ:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

GUMMOW J:   Before you start, does this matter raise any issues of the kind reserved in the case of NABD?  We have a case of NABD reserved on 7 September last year.

MR BLUE:   Yes, your Honour.  I am aware of that case but I am not aware of the detail, but I understand that it did involve the question of religious persecution and the question of whether private practise of religion in Iran, I think it was, could result in an avoidance of persecution within the meaning of the Convention.  But I am not aware further of the details of that case.

GUMMOW J:   I think we should ask Ms Maharaj what the Minister’s attitude is, given the pendency of NABD.

MR BLUE:   May the Court please.

GUMMOW J:   Yes, Ms Maharaj. Can you assist us in this respect?

MS MAHARAJ:   Yes, we can, your Honours.  Our short submission is that this matter is distinguishable from the issues that have arisen in NABD in view of the finding of the Tribunal in this case that the discrete practise of religion was a matter of choice for the applicant.

KIRBY J:   But that is very much what the Tribunal found in the case to which Justice Gummow has referred.  The Tribunal, in essence, said, “We think that if he practises his Christian belief in Iran he won’t suffer persecution.  We reach the view that he will practise his belief in Iran discreetly.  Therefore, we conclude that he would not suffer persecution in fact and, therefore, he has no well-grounded fear.”  Now, that seems to be very much the way that the Tribunal in this case reasoned, and that is the issue which is under consideration in that case and it does not fit very well with the Bangladesh case of the homosexual applicants in Bangladesh, where it was said that to deny people exercising their basic rights is not a price that the Convention imposes.

MS MAHARAJ:   I do not take issue with anything that has fallen from your Honour.  The short point we make is that this case is distinguishable from S395 because the Tribunal did not ask, as your Honours found, the question of why there was the need for discretion as to whether it was voluntary or whether it was enforced.  In this particular case your Honour is quite right in saying that the issue of principles that emerge are the same as NABD, but we say factually it is distinguishable because of the specific finding of the Tribunal that in this particular case the applicant was attracted to Christianity because of the discreet practise of it.  So it was a voluntary course ‑ ‑ ‑

GUMMOW J:   Yes.  Well, neither Justice Callinan nor I sat on NABD, so we are in a somewhat invidious position as well. 

KIRBY J:   The applicant is in immigration detention, is he?

MS MAHARAJ:   Yes, your Honours.

KIRBY J:   Well, as Justice Gummow and Justice Callinan did not sit in the case and are not therefore aware of the detail of the argument as it was advanced in the case and as the whole Court does not yet have the decision that is made in the case, it really does not seem very prudent to proceed with it today.  It may be that once that decision is handed down, depending on how the matter goes, the parties could make certain further steps in the light of that decision.  But it does not seem very suitable to go ahead with it today given that two members of the Court did not participate and we are still waiting for the decision of the Court.

CALLINAN J:   Your client, depending upon the outcome of the decision of the Court, might form an entirely different view of her position, for example.  I do not know what is going to happen, but it may be that the matter would have to be re-examined by your client.  I know you say it is distinguishable but, even assuming that to be so, it may not be sufficiently distinguishable depending upon the outcome of the decision in the other case.

MS MAHARAJ:   Yes, your Honour.  I accept that that may be in issue.  I understand from what has fallen from Justice Kirby that perhaps the Court is minded to adjourn this application pending the decision in the ‑ ‑ ‑

GUMMOW J:   That is right.  Unless we are persuaded to the contrary, that is what we will do.

MS MAHARAJ:   Well, I have nothing further to say, your Honours.

GUMMOW J:   Very well.  We will see what Mr Blue says.  Yes, Mr Blue.

MR BLUE:   May the Court please, we would agree with that course.

GUMMOW J:   Very well.  This application will be stood down, pending the delivery of judgment in NABD v Minister for Immigration and Multicultural and Indigenous Affairs, and should be restored to the list, if it needs to be restored, as soon as possible after the delivery of reasons in NABD.  Any questions of costs arising from today will be costs in the ultimate disposition of the leave application. 

AT 9.46 AM THE MATTER WAS CONCLUDED