BC v MIMA

[2003] HCATrans 363

[2003] HCATrans 363

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S260 of 2002

B e t w e e n -

BC

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 SEPTEMBER 2003, AT 11.24 AM

Copyright in the High Court of Australia

MR R.W. KILLALEA:   If the Court pleases, I appear for the applicant.  (instructed by Ian D. Graham & Associates)

MR S.J. GAGELER, SC:   If the Court pleases, I appear with MR S.B. LLOYD for the respondent.  (instructed by Clayton Utz)

GLEESON CJ:   Yes, Mr Killalea. 

MR KILLALEA:   Your Honours, this matter concerns an application for special leave.

GLEESON CJ:   Was this before the Court once before and was it stood over to await the outcome of ‑ ‑ ‑

MR KILLALEA:   Yes, your Honour.  It was awaiting the outcome of the decision of this Court in Re The Minister; Ex parte Applicant S20 of 2002 heard together with Appellant S106 of 2002.  That was a matter which considered an application seeking an appeal from the judgment of the Full Court of the Federal Court in Gamaethige v The Minister ‑ ‑ ‑

GLEESON CJ:   Yes, but S20 of 2002 was not Gamaethige, was it?  It dealt with a similar issue – it was it?

MR GAGELER:   S106 was the appeal in Gamaethige.

GLEESON CJ:   Yes, S20 was not?

MR KILLALEA:   It was original jurisdiction, your Honour. 

MR GAGELER:   Sorry, your Honour, it was the same person.

GLEESON CJ:   The same person.

MR GAGELER:   Yes.

MR KILLALEA:   Yes.

GLEESON CJ:   That is reported in 77 ALJR 1165, I think. Is that right?

MR GAGELER:   I had the ALR reference, your Honour, I do not know.

GLEESON CJ:   Yes, go ahead, Mr Killalea.

MR KILLALEA:   Yes, in that decision, the essential matter that was raised before the Court was whether or not illogicality in the reasoning process of the Tribunal was reviewable as an error of law.

GLEESON CJ:   But, of course, it depends what you mean by that, and you may need to be more precise about the identification of the error.

MR KILLALEA:   Yes.  What the applicant says in this case is that there was illogicality in the reasoning process of the Tribunal and such illogicality founded a failure to exercise jurisdiction.

GLEESON CJ:   Well, what was the error?

MR KILLALEA:   The error is in the reasoning, your Honour, and the error, if I can take you to the application book, at folio 24 of the application book, the applicant’s case essentially before the Tribunal was that he had converted to Islam for the purposes of seeking the assistance of the Muslim community to have his wife and children returned to him.  They had been kidnapped on several occasions or abducted, it seems, by the wife’s family.  Ultimately, he was not able to find them when they were kidnapped or abducted for some time.  He sought the assistance of the Muslim community which they were prepared to give him if he converted.  Having converted to Islam, he then placed advertisements in the newspaper and shortly thereafter, his wife and child came back to him.

CALLINAN J:   They were in Islamabad – is that where he found them?

MR KILLALEA:   I must say, I thought it was Karachi, your Honour, but I stand to be corrected.

CALLINAN J:   Karachi, was it?  No, you know ‑ ‑ ‑

GLEESON CJ:   Now, what do you say about what Justice Madgwick said on page 116 in paragraphs 15 and 16 about this error?

MR KILLALEA:   Yes.  Well, his Honour there has indicated that – I was there for the applicant in that case:

counsel . . . has not attempted to place any reliance in this Court on the possible unreasonableness of that finding.

I submit that that was in the context of a consideration of Wednesbury unreasonableness and such consideration was not available in the Federal Court by dint of section 476(2)(b) of the Migration Act as it then was. 

GLEESON CJ:   I have in mind the proposition which I understand to be involved in paragraphs 15 and 16 that one might say that the finding of fact by the Tribunal was, to use Justice Madgwick’s word, an “heroic” finding, but what follows from that in terms of judicial review?

MR KILLALEA:   Of course, the matter was not ventilated before his Honour Justice Madgwick because ‑ ‑ ‑

GLEESON CJ:   What does follow from it?

MR KILLALEA:   What follows from that is when one looks to what his Honour Justice Gummow has said in The Minister v Eshetu is that where a decision-maker is required to be satisfied as to certain criteria before the decision-maker attains jurisdiction – and that is the case under section 65 of the Migration Act, which is cast in terms of:

After considering a valid application for a visa, the Minister:
(a)  if satisfied –

as to a number of criteria.  One is:

(ii)  the other criteria for it prescribed by this Act –

and section 36 provides such criteria, which is that:

A criterion for a protection visa is that the applicant for the visa is a non‑citizen in Australia to whom –

as it was then, essentially that the person is owed “protection obligations under the Refugees Convention”.  So the requirement is that the decision‑maker be satisfied as to that criteria before the decision‑maker has the jurisdiction to either grant or, as in that case, the decision‑maker must grant the visa.

GLEESON CJ:   But it does not get you anywhere to say, does it, or for a judge to say, “If I had been the decision‑maker, I would not have been satisfied” or “I would have been satisfied”, either way?  That only means, “I disagree”.

MR KILLALEA:   With respect, what his Honour Justice Gummow discussed in Minister for Immigration v Eshetu was in a lengthy exposition of the situation where the decision‑maker is required to be satisfied of certain things before attaining jurisdiction.  What his Honour Justice Gummow says – and it is paraphrased in the special leave question – that albeit that it is not for a court to cavil with the facts, and it may be that there is some apparent error in the factual analysis, and it is not for the court to step in, or very difficult for a court to step in and say there is something wrong with that, but as his Honour says:

It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.

Then the Court might be disposed to review – that is, where the evidence is all one way and the decision the other way, then the Court can come in on judicial review and say there is something wrong with the ‑ ‑ ‑

CALLINAN J:   What did the other members of the Court say in Eshetu?  Did any of the other members of the Court agree with his Honour in that passage?

MR KILLALEA:   No, your Honour, I cannot take you to anything.  What happened in that case was the application was put forward on the basis of Wednesbury unreasonableness and what his Honour Justice Gummow was concerned to set out was that, properly, where a decision‑maker’s jurisdiction is attained upon satisfaction and that jurisdiction is not properly attained, the challenge is not on Wednesbury unreasonableness but, in fact, it is a matter of reasonableness as to whether or not the jurisdiction has been properly attained.  Now, it was not, of course, critical to that case because the challenge was put under the rubric of Wednesbury unreasonableness.

CALLINAN J:   I must say I am a little troubled with that.  Does that mean that some facts are to be picked out as jurisdictional facts and how do you single them out as jurisdictional facts?

MR KILLALEA:   Well, problematic as that might be in particular instances, when one looks to section 65 of the Migration Act, I submit there is no problem.  What it says is that if the Minister is satisfied as to certain things, then the Minister must do something.

CALLINAN J:   That is like any finding of fact.  If a judge is satisfied that the defendant has been negligent, then the judge has to find negligence.

MR KILLALEA:   Yes, but the judge in such a case has already attained jurisdiction and, properly, when one looks to the nature of this legislation and to the fact that the Minister can delegate his powers, it is ‑ ‑ ‑

CALLINAN J:   But there is no question of the Minister not exercising a jurisdiction.  When a Minister decides whether he is going to grant the application or not, a Minister has exercised his jurisdiction.

MR KILLALEA:   Well, with respect, so long as he has properly attained jurisdiction and what we ‑ ‑ ‑

CALLINAN J:   But he would not be dealing with it if he was not exercising jurisdiction.

MR KILLALEA:   Well, he might purport to exercise jurisdiction, but if in fact he has not validly attained jurisdiction, then he cannot exercise the jurisdiction.

CALLINAN J:   How does he validly attain jurisdiction then?

MR KILLALEA:   By being validly satisfied as to the criteria of which he must be satisfied.

CALLINAN J:   No, what you are really saying is by deciding the facts the way you assert they should be decided.  That is what it comes down to, does it not?

MR KILLALEA:   With respect, no, your Honour, because it is not for the Minister to, for example, make any logical finding as to a fact and then can it be said that he validly exercised jurisdiction.  If he has made an illogical finding of fact, then it is for the Minister again, after judicial review if an application is granted, to consider the application.  The court does not dictate the outcome.  The court simply says, “In this case you have arrived at your satisfaction in an illogical way.  That is reviewable.  We so review it.  It is for you, the Minister, now to consider the application again.”

GLEESON CJ:   By “illogical”, do you mean anything different from wrong?

MR KILLALEA:   I think there can be a difference.

GLEESON CJ:   Yes, a process of reasoning can be illogical because the premises do not lead to the conclusion.  There may be a logical flaw, there may be the fallacy of the undistributed middle term or whatever the case may be.  But if somebody simply says, “I don’t believe” or “I am not satisfied that such and such a risk exists”, what does it mean to describe that as illogical as distinct from saying it is wrong?

MR KILLALEA:   Well, perhaps – and I will come back to that, your Honour – rather than wrong, clearly, one might disagree with the outcome of a decision‑maker and say, “I think you are wrong”.  But if the decision‑maker has gone through a logical process and material was there on which the decision‑maker could have come to that decision, then I would say, on the face of it, it is not judicially reviewable because the decision is supported in some probative way – it is supported on probative material, it is supported on logical grounds.  But, absent logic and absent any grounds on which the decision might be supported, then, properly, with respect, that decision ought be reviewable.

CALLINAN J:   When you say “ground”, do you mean evidence?

MR KILLALEA:   Yes.

CALLINAN J:   So if there is evidence, then that is the end of the matter, your argument fails?

MR KILLALEA:   Well, I would submit that, properly, it is not just a matter of any evidence but if it is ‑ ‑ ‑

CALLINAN J:   There have to be two conditions, according to you, an absence of evidence and illogicality?

MR KILLALEA:   If I take what his Honour Justice Gummow has raised as the second limb of the special leave question, if the satisfaction of the decision‑maker was based on findings or inferences of fact which are not supported by some probative material or logical ground, I think of it in this way, that if there was probative material, one would think the logic would follow and give the result.  One might disagree with it, but if there was probative material and that was part of the reasoning process, then I do not think I could fault the outcome. 

GLEESON CJ:   What is illogical about a conclusion that he could safely relocate to a Christian part of the country?

MR KILLALEA:   First of all, only 2 per cent of the population of Pakistan are Christian and we would say the member has set out in the decision – but what the member says about the applicant at 23.3:

The applicant is a Christian, has a readily identifiable Christian name and speaks excellent English.  The Tribunal does not accept that there is anything about the applicant that would identify him as anything other than a Christian.  There is nothing about him which would identify him as a convert from Islam to Christianity. 

He then finds on 24:

The applicant claims that his brothers-in-law –

they are two policemen, one having a high-level position –

may reveal the fact of his conversion and reconversion to any community in which he is living.

Well, why would they not?  They made trouble enough for him with his wife.  If he moves to a Christian community elsewhere in the country, there being only 2 per cent Christians in the country, it is not as if he is able to hide within a large community and query what if, anyway.

However the Tribunal does not accept that this would cause the applicant any problems because he is so obviously a Christian. 

That is his problem.  He looks like a Christian in the sense of his being a Christian and if his brothers-in-law say to extreme members of the Muslim community in the area in which he lives, “This man converted; he is apostate; this man has converted from Islam to Christianity”, one only has to look at the dangers for persons who are accused of such things and those dangers are set out even in respect of false charges.  I refer your Honours to the decision proper.  If I can take your Honours to folio 13 of the application book and there is a quote there from the US State Department report at about point 5:

Local police participated in the attack and are suspected of having instigated the riot by inventing a spurious charge that a Christian man had desecrated a copy of the Koran. 

There is danger for any person in Pakistan if a spurious charge is laid, much less in fact a charge which would have substance and that is that the applicant converted from Islam to Christianity.  At the foot of page 13, again the quote:

The authorities, especially the police who at the local level generally have little education or training and are easily pressured by Islamic activists, are in most cases neither able nor willing to protect Christian interests.

At 14, point 3, the end of the indented paragraph, the last sentence:

Reprisals against suspected converts to Christianity occur, and a general atmosphere of religious intolerance has led to acts of violence against religious minorities –

At 15, point 7 in the middle of the last indented paragraph:

While there is no law establishing the Koranic death penalty for apostates (those who convert from Islam), social pressure against such an action is so powerful that most such conversions take place in secret.  Reprisals and threats of reprisals against suspected converts are common.

GLEESON CJ:   On page 114, at about two‑thirds of the way down the page, there is the factual reasoning about relocation, is there not:

Christian communities exist throughout Pakistan but predominantly in –

certain named places –

Given these factors, the Tribunal finds that it would be reasonable to expect the applicant to relocate to Islamabad where he believes his wife is currently residing . . . However, the Tribunal is satisfied that the applicant could also reside with safety in an area of Karachi away from the Moslem community who helped him when he was searching for his family ‑ ‑ ‑

MR KILLALEA:   Well, if he was able to move in secret, perhaps that would be the case, but there is a contemplation there that he will live with his wife.  The problem for living with his wife is what, in a sense, has driven the whole of this, that the wife’s family are not so keen on him.  They have abducted the wife on several occasions.  It is no stretch of the imagination to contemplate that knowing where he lives, they can make trouble for him simply by contacting the Muslim community in the area in which he lives.  Sure, it may be that he has no ongoing problem from the Muslim community in Karachi in the area where he did live, but the risk for him is from extreme elements of the Muslim community in those places where he does – wherever it be that he might live in Pakistan.  That is the very real risk that this man faces.

With respect, the error of the Tribunal was an error of logic in concluding that, “You will be safe, wherever you move, because you look like a Christian”.  If anything is going to raise the ire of extremists, vis‑a‑vis somebody who has cheated them in the sense of converting from Islam to Christianity, is to look at someone who bears the hallmarks that the Tribunal ascribed to this man ‑ ‑ ‑

GLEESON CJ:   What are they, by the way?  What is it that makes a Pakistani look like a Christian?

MR KILLALEA:   Well, what the Tribunal says is that he speaks English and has a Christian name.  Now, how can that logically provide protection to a man – he is dark-skinned, he does not look as if he comes from the Jewish community in the sense of Jesus Christ coming from where he came from, he is a dark-skinned man, he practises Christianity and the Tribunal

says, “You will be safe”.  How can he be safe when the risk in Pakistan is so patent and so manifest for those who convert and, in the particular context of this case, where those who have demonstrably got it in for him, in all likelihood will know where he is living because he will be living with his wife, their sister?

GLEESON CJ:   Yes, thank you, Mr Killalea.  Mr Gageler.

MR GAGELER:   Your Honours, in terms of judicial review, nothing has been traditionally thought to flow from an heroic finding of fact.  In our submission, S20 does not change that traditionally understood position, nor is anything in Justice Gummow’s judgment in Eshetu inconsistent with it.  In Eshetu 197 CLR 611 at paragraph 147 his Honour relevantly agreed – I am sorry if your Honours do not have that reference; it may be in your Honours’ supplementary materials filed by the applicants. At page 70 in the top right-hand corner, that is the beginning of the judgment, and if your Honours could find paragraph 147.

GLEESON CJ:   Perhaps you had better just read it out.  Our associates have disappeared now.

MR GAGELER:   Yes, page 93, paragraph 147, your Honours, is where his Honour relevantly agreed with your Honour the Chief Justice and Justice McHugh.  What your Honour the Chief Justice and Justice McHugh said at paragraph 40 relevantly was this, that:

Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as “illogical” or “unreasonable” . . . If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.

Then your Honours applied that reasoning to the allegation of unreasonableness.

CALLINAN J:   I am sorry, Mr Gageler, where was that again?

MR GAGELER:   Your Honour, in the judgment, paragraph 40, the last two sentences of paragraph 40.

CALLINAN J:   Thank you.

MR GAGELER:   Paragraph 147, page 657, Justice Gummow relevantly picks up and adopts that reasoning.  In our submission, the position of the applicant in the present case is really one of saying emphatically that the reasoning or the fact‑finding of the Tribunal was wrong.  The fact‑finding

relevantly appears at pages 22 and 23 of the application book and the background to what appears at those two pages is this, that the applicant was found to have been raised a Christian, to have converted to Islam at the age of about 33 for about a month and then to have converted back to Christianity, to have lived in Pakistan then for a year as an apostate before leaving the country. 

The Tribunal had found at page 19 that he faced no risk of persecution by being a Christian and at page 22, really, what is found is that he faced some risk of persecution only within his local community by reason of apostasy, that is where he was known and his history was known.  What the Tribunal really says at pages 23 and 24 is that outside his local community there is no real risk, and that is the substance of the finding.  It says, page 23, about point 3 of the page, opposite the number 10, that he is obviously a Christian, readily identifiable as a Christian. 

There is then, at the bottom of the page, the passage to which your Honour the Chief Justice has already drawn attention to, and then at page 24 is where the illogicality is alleged to exist.  The illogicality is really just in the finding of fact, page 24, point 3, “the Tribunal does not accept” that the applicant would be caused any problems by what his brothers‑in‑law might say, “because he is so obviously a Christian”, that nobody would take those allegations seriously. 

Now, your Honours’ minds may well differ as to the appropriateness of that finding of fact, but it is not a finding of fact that can in any way be said to be based on a process of reasoning that is illogical or irrational.  So the case, in our submission, raises no question of general principle.  The principle was addressed in Eshetu; it was addressed again in S20.  The question is its application.  In respect of the application of the principle already established, in our submission, there are not reasonable prospects of success.  If the Court pleases. 

GLEESON CJ:   Mr Killalea. 

MR KILLALEA:   I can only say as to the principle, it…..  If I might, with respect, remind the Court that in S106, this Court expressly, or by implication, as I read it, held, in obiter dicta, that administrative decisions were reviewable for reasons of illogicality in the decision‑making ‑ ‑ ‑

GLEESON CJ:   What paragraph were you referring to? 

MR KILLALEA:   Paragraph [9], point 8 of your Honour’s judgment in S106. 

GLEESON CJ:   Yes. 

MR KILLALEA:   The closing sentence or two in your Honour’s judgment at line 30: 

It is often unhelpful to discuss, in the abstract, the legal consequences of irrationality, or illogicality, or unreasonableness of some degree.  In a context such as the present, it is necessary to identify and characterise the suggested error, and relate it to the legal rubric under which a decision is challenged. 

This decision was challenged in relation to jurisdiction, and you will see that in particular at folio 33 of the application book, where his Honour Justice Sackville in the Federal Court at first instance has set out the grounds which were remitted from the High Court, at the foot of 33: 

The grounds of review specified in s 476(1) include the following –

(b), (c) and (e) –

It will be seen that the grounds remitted to this Court corresponded to the grounds specified in s 476(1)(b), (c) and (e) of the Migration Act –

as it then was.  So the ground of review is that, under (b), the decision‑maker “did not have jurisdiction”, had not validly attained jurisdiction for reason of illogicality; “the decision was not authorised by this Act or the regulations” – a different way of approaching the same issue, and, in fact, I press in particular paragraphs (b) and (c).  So the challenge to the Tribunal’s decision was that it did not have jurisdiction.  Why did it not have jurisdiction?  Because there was manifest illogicality in the reasoning process.  Their Honours Justices McHugh and Gummow in S106, at paragraphs [37] and [54] – at paragraph [37], their Honours say this, that: 

Without further consideration of what was said in Melbourne Stevedoring, the formulation of the criterion which is relied upon by the appellant may be accepted for present purposes. 

The formulation of that criterion is set out in your Honour Chief Justice Gleeson’s judgment at paragraph [4], point 1, where it reads that: 

The challenge to the Tribunal’s decision is based on two grounds.  First, it is said that the decision “was illogical, irrational, or was not based on findings or inferences of fact supported by logical grounds.”

Their Honours Justices McHugh and Gummow at paragraph [116] of S106, at about point 6: 

Flaws apparent in fact‑finding may, for instance, disclose, or confirm, that the administrator has misunderstood the applicable legal criteria, or otherwise trespassed beyond the jurisdiction or authority conferred by the enactment.  It has also been said that the requirement for findings of fact to be based on probative material and logical grounds may be an aspect of natural justice. 

CALLINAN J:   It seems to be a bit tentative, though, Mr Killalea, “may be”.  I do not immediately read their Honours to be saying that it is.  It seems to be raising a possibility. 

MR KILLALEA:   I would certainly accept, your Honour, that it does raise the possibility.  It was not necessary for this Court to determine the question in that matter, because they found against illogicality, in any case.  At paragraph [132], their Honours said this: 

However, a court could also be asked to review the process by which the Tribunal arrived at its “satisfaction” to determine whether it was consistent with the fact‑finding procedure envisaged by the Act for the assessment of applications for a protection visa. 

And at [138]: 

This, without more, indicates that the satisfaction or opinion of the Tribunal as to the appellant’s status was not properly formed.  It was not supported on logical grounds by reference to the material adduced.  Given that the Tribunal’s satisfaction provided the foundation for its jurisdiction to make the decision not to grant the protection visa, the illogicality in the fact‑finding process was an error that went to jurisdiction. 

I would submit that that, albeit that it is obiter dicta, makes it fairly clear the way the jurisprudence in this area, if not has developed, is better exposed in this judgment. 

GLEESON CJ:   Thank you, Mr Killalea.  We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this case and the application is refused with costs.  We will adjourn for a short time to reconstitute.

AT 11.57 AM THE MATTER WAS CONCLUDED