BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] HCATrans 220

[2020] HCATrans 220

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M61 of 2020

B e t w e e n -

BHL19

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

KIEFEL CJ
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 11 DECEMBER 2020, AT 10.31 AM

Copyright in the High Court of Australia

KIEFEL CJ:   MS G.A. COSTELLO, QC appears with MR A.N.P. McBETH for the applicant.  (instructed by Victoria Legal Aid)

MR P.D. HERZFELD, SC appears with MR D.J. REYNOLDS for the respondent.  (instructed by Minter Ellison)

KIEFEL CJ:   Yes, Ms Costello.

MS COSTELLO:   Your Honours, in the context of character refusals and cancellation decisions, which is a significant part of the Federal Court’s caseload, this Court has never considered the parameters of unreasonableness in either the fact‑finding process or the overall decision result.  As Justice Gageler, with respect, correctly observed in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at paragraph 82, mostly, unreasonableness is about justification transparency and intelligibility. But his Honour observed that it is also about whether the decision falls within a range of possible acceptable outcomes that are defensible in respect of the facts and the law.

Cases in which this Court has dealt with unreasonableness since the turn of the millennium have focused on, mainly, unreasonable failure to exercise a procedural power.  In particular, Minister for Immigration v Li and the Minister v SZVFW were of that kind.  Irrationality in fact finding, as part of unreasonableness, was dealt with in SZMDS where your Honour the Chief Justice in dissent with Acting Chief Justice Gummow found irrationality in fact finding leading to jurisdictional error in that case.  But the majority found there had not been irrationality in fact finding.

In obiter in SZMDS Justices Crennan and Bell observed that there was the concept of unreasonableness in the overall result, and in SZVFW, for example, at paragraph 82, Justice Gageler confirmed the concept of unreasonableness in the overall result, but there has not been a case where this Court has adjudicated on whether there is unreasonableness in the overall result.

KIEFEL CJ:   What do you mean by the overall result?

MS COSTELLO:   What I mean is by reference to, for example, Justice Gageler’s description of, on the one hand, a focus on the fact‑finding process, and on the other hand a focus on whether the result itself is an acceptable outcome.  So the unreasonableness of the result is whether the result itself is so disproportionate, unjust, unreasonable that it could not have been reached lawfully, as opposed to the fact‑finding process, where there can be attacks on particular submissions not considered or illogical findings.

Now, the ministerial character refusals and cancellations occur under a broad power, and that broad power is implicitly limited by reasonableness.  The power to cancel on character grounds is exercised in a manner that often has profound human consequences and is often used in the absence of merits review where the decision is made by the Minister without recourse to merits review in a Tribunal.

Accordingly, judicial review courts are the last line of defence against disproportionality, arbitrariness and unreasonableness in the result of decision‑making under this broad power.  As Justice Gageler observed in SZVFW at paragraph 59, citing Chief Justice Allsop speaking extra‑curially in the New South Wales Bar News:

Reasonableness is . . . a translation of “the human into the legal”.

The result of the Minister’s decision on character in this case is exquisitely awful ‑ - -

KIEFEL CJ:   I am not sure that is very legal, that is more human, is it not, the submission?

MS COSTELLO:   For the applicant.  It is.  What unreasonableness enables the judicial review court to do is to translate what is, at times, an exquisitely awful human consequence, and check whether that is within power.

KIEFEL CJ:   Ms Costello, I just reminded myself, you need an extension of time; one day, I think?

MS COSTELLO:   Yes, your Honour.

KIEFEL CJ:   I do not think that is opposed, Mr Herzfeld?

MR HERZFELD:   It is not opposed, save on the merits of the special leave application.

KIEFEL CJ:   Yes, thank you.  Well, the extension is granted.

MS COSTELLO:   May it please the court.  At paragraph 67 of the reasons, which are at page 13 of the supplementary application book, you will see at the top of the page under the heading “International non‑refoulement obligations” that the then‑Minister, the Honourable David Coleman MP, accepted that his Department had found that if the applicant was returned to Syria he:

would face a well‑founded fear of persecution at the hands of the Assad‑led regime or opposing rebel forces including a threat to or loss of liberty or life, significant physical harassment and ill treatment, arrest and imprisonment, torture and enforced disappearance.

The facts of this case present a timely vehicle to consider whether the process and outcome was reasonable, thereby demonstrating the application of the tension between deference to decisional freedom on the one hand, and scrutiny of the boundaries of power reasonably exercised.

KIEFEL CJ:   Ms Costello, how would you state the question that the Minister had to answer?

MS COSTELLO:   The question was under a subsection of 501, and it was whether the applicant was liable to cause harm to the Australian community.

KIEFEL CJ:   Whether the applicant represents a danger to the Australian community because he is liable to become involved in activities that are disruptive to or threaten harm to the community.  That is the question.

MS COSTELLO:   Yes, your Honour.

KIEFEL CJ:   In summary, why do you say an affirmative answer to that was not open?

MS COSTELLO:   Because of the facts of this case.  A reasonable decision‑maker needed to consider whether it was a sufficient threat, on these facts, to justify refusal on character grounds, with the real human consequence that followed.

KIEFEL CJ:   Well, you say sufficiency, but the statute says “a danger”.

MS COSTELLO:   It does, but ‑ ‑ ‑ 

KIEFEL CJ:   That is not a very high threshold.

MS COSTELLO:   It is a broad power, your Honour, yes, and it is not a very high threshold, however it is limited by reasonableness.  And on the facts here, even at the primary level before Justice Thawley, and again on appeal, there was a recognition in principle by the judges that there are cases where the line is crossed that the decision is unacceptable.

KIEFEL CJ:   But Ms Costello, you do not use the judicial review notion of reasonableness as an overlay on a statute.  Unreasonableness in judicial review is looking at the process of decision‑making, is it not?

MS COSTELLO:   Well, that is the sort of question that this Court can consider if you grant special leave because it is clear ‑ ‑ ‑

KIEFEL CJ:   I think the Court has said that more than once.

MS COSTELLO:   In Li and SZVFW the Court was considering procedural powers, adjournment‑like powers.

KIEFEL CJ:   Yes.

MS COSTELLO:   In SZMDS, the Court was considering irrationality in fact finding.  In this case, it is qualitatively different because the facts of this case, quite exceptional facts, which I will take you to in a moment, if I may, present a case where it does reach past the line where a proportionate decision was open to refuse or cancel this man’s visa.

KIEFEL CJ:   But this Court has certainly held that irrationality is a way in which one might make out unreasonableness.  I do not think it has ever said that proportionality is a test of itself of unreasonableness.

MS COSTELLO:   It has not been asked to consider an argument about proportionality in a character case.  Indeed, if your Honour would recall SZMDS in which your Honour was part of the dissent, you would recall that the argument was about irrationality in fact finding.  It was not about a disproportionate result meaning that the result of the decision was so unjust and disproportionate that it was not open. 

It may…..to an Avon Downs argument that something must have gone wrong here to reach this result because if you look at the facts you have, first of all, the fact that the applicant was never convicted or charged of any criminal act.  The conduct of concern was words and thoughts, a seeming ideology imputed to him in the context of manic hallucinations.  Police and ASIO assessed him and did not consider him to be a serious threat enough to warrant charging him with anything.  He faces a well‑founded fear of persecution, that is accepted.  The detention has exacerbated his mental health and he will remain in detention for an unknown period. 

It is absurd to think that the Minister would exercise a 195A safeguard for this man given the conclusion reached in the decision.  The risk is something that has to be seen in light of the qualitative nature of that risk based ‑ ‑ ‑

STEWARD J:   Ms Costello, why should we not construe your submission as really very strong disagreement with the conclusions of fact that the Minister reached.  When I see the force of what you say, why is it not just no more than intelligent, persuasive disagreement?

MS COSTELLO:   Your Honour, the reason why lies in detail in the judgment of Justice Wigney where he did two things.  He not only considered how the decision in the result was plainly unjust, obviously disproportionate and irrational, but he also looked carefully at the fact finding that had gone on and carefully deconstructed a number of problems with this decision, such as not looking at available information, not considering submissions, and for the reasons set out in a lot of detail that I cannot reach today and which ‑ ‑ ‑ 

STEWARD J:   We have read the judgments, so you can take that on board.  Let me ask you this question.  Where do we find grounded in the law your proposition that a more deferential approach to decisions of the Executive should not be taken by judges?

MS COSTELLO:   As I have said, the High Court has not adjudicated on a case of disproportionate decision, but in the passages that I referred to earlier where Justice Gageler referred to the issue about whether a decision falls within a range of possible acceptable outcomes that are defensible, his Honour says that analysis is not merits review. 

STEWARD J:   Quite so, but I had thought that the general approach to legal unreasonableness is that the court would be hesitant to reach a conclusion that an executive decision was legally unreasonable.  But the question becomes – you urge a less deferential approach – where does that come from?

MS COSTELLO:   It comes from describing and comparing the approaches on the one hand of Justice Wigney in the decision we seek to appeal and also ‑ ‑ ‑ ‑

STEWARD J:   Is there some authority you can point to, or something that is grounded in principle for that proposition?

MS COSTELLO:   Well, it is illustrated by this authority in that what you see, if you compare the approach of Justice Wigney, on one hand, and compare it to the approach of Justice Bromwich with whom Justice White agreed and Justice Thawley below ‑ ‑ ‑

STEWARD J:   Perhaps I can ask you this.  In the context of the differences below, would it not be better to allow the concepts of legal

unreasonableness to be sorted out by the Federal Court and associated courts on a case‑by‑case basis?  One will expect to see differences in approach or in conclusion. 

MS COSTELLO:   The authority I would draw you to just to answer your penultimate question is one that we have cited in our special leave application and that is the judgment of Justices ‑ ‑ ‑ 

STEWARD J:   Mortimer and Bromberg?

MS COSTELLO:   Yes, in DQM18.

STEWARD J:   Yes, thank you.

MS COSTELLO:   Now, there is sometimes a blending of the taxonomy of jurisdictional error.  In the case they were considering the visa applicant argued it as more like a failure to consider paradigm.  But the level of scrutiny that their Honours brought to assessing the reasons in that judgment are more similar to the approach taken by Justice Wigney in looking not only at the stated justification for the Minister’s decision but also what is missing from the reasons, and also what in substance this means. 

Now, I cannot take you to an authority because we need special leave in order to create one in the High Court, your Honour.  It is a very interesting boundary question between merits review and proper scrutiny in this particular area with its significant human consequences.  I might reserve my remaining time for the reply that will be made by Dr McBeth.

KIEFEL CJ:   Yes, Mr Herzfeld.

MR HERZFELD:   Your Honours, we seek to make two broad oral submissions in addition to our written submissions.  The first is that the matter raises no point of principle.  The second is that there is no reason to doubt the conclusion of the primary judge in the majority in the court below.

Firstly, in relation to the absence of a point of principle, we do submit that the matter simply involves the application of really generally settled principles concerning legal unreasonableness to the particular facts.  Your Honours will have seen in the judgments of the courts below, various statements of principle from each of the judges who considered the matter substantively.  None of those statements of principle differ in any relevant way.  Can we draw attention to these points?  First of all, on page 16 of the application book, in the reasons of the primary judge, at paragraph 32, his Honour, in terms, referred to:

The relevant legal principles are well established.

Similarly, in the reasons of his Honour Justice Wigney at page 97 of the application book at paragraph 129 his Honour referred to the many cases in which the principles had been given consideration and at paragraph 130, referred to those general principles being:

so well accepted . . . that it is unnecessary to provide specific case citations –

to the uncontroversial principles that his Honour thereafter cited.  Can your Honours please notice in that statement of principles at paragraph 135, his Honour’s reference to its being:

necessary to construe the provisions of the statute –

to determine the bounds of unreasonableness.  Can your Honours also notice, in paragraph 146, his Honour’s citation of the well‑accepted principle from Wu Shan Liang.

In that context, his Honour’s dissent was, and was expressed to be, simply about the application of these principles to the particular facts.  Your Honours can see that at page 71 of the application book, paragraphs 20 to 22.  His Honour expressly cast his Honour’s disagreement as being not a matter of principle but, simply, a matter of application.  That, with respect, is hardly unsurprising.  Indeed, this Court observed earlier this week in Minister for Home Affairs v DUA 16, at paragraph 26:

whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power –

Now, the applicant’s submissions suggest some difference in approach between the majority and minority in the Full Court below.  It is really never made clear what that difference in approach amounts to.  That is because, in our submission, there is, in truth, no difference of approach.  There was just a difference about whether, on the particular facts of this case, the particular decision was legally unreasonable.  The absence of any point of principle is really evidenced by the proposed special leave questions, which your Honours can see set out at page 168 of the application book. 

KIEFEL CJ:   Well, as I understood Ms Costello’s submissions, the point of principle is to stretch the test of unreasonableness to take account of proportionality in some way in a review of fact finding.

MR HERZFELD:   Well, as your Honour the Chief Justice noticed, there is not authority of this Court in terms dealing with that.  But there are certainly plenty of authorities in the courts below which have considered whether particular outcomes exceed that which is reasonable.  In this Court in Li, it was referred to that proportionality may have a role to play in deciding whether a particular decision exceeds the bounds of that which is reasonable.  But that is again not a point of principle; it really is just a question of application to the particular facts, whether a particular decision exceeds the permissible bounds of decisional freedom.

KIEFEL CJ:   The term “proportionality”, of course, is something that takes its meaning from the particular legal context in which it is used.  I suppose the question here is what does it mean?  I think in Li, as you have identified, it was said that it might have a part to play, but, really, in the context of consideration of irrationality as part of that test, rather than being a standalone test.  I do not think it has ever been accepted by this Court that it is a standalone test akin to merits review.

MR HERZFELD:   It cannot be at the federal level for the separation of powers and in any event in light of the well‑established proposition that judicial review is not merits review and, certainly where one has a set of reasons behind a decision, they, as this Court has said on a number of occasions, must be the starting focus of any challenge to unreasonableness.  If the individual reasons given are not irrational, it is very difficult to see how there is then any possibility at the end to say, nonetheless the outcome is beyond the realms of decisional freedom.

So we would embrace the proposition that your Honour the Chief Justice I think is raising, that in a context such as this where one has a wide ministerial discretion and a set of reasons, if one does not get to the level of rationality, or rather irrationality, it is difficult to see how there is any additional role for proportionality.

But as I say, all of these things are really just applications of well‑accepted principles to the facts of this case.  One can see in the special leave questions which are propounded that that is so.  So when one looks at the first proposed special leave question, it is really so abstract as almost to be meaningless.  Then when one comes to the second question, it is not a question which can really be answered in an abstract way, because the proper bounds of decisional freedom will depend on the statutory context and the facts.  The statutory context here, uncontroversially, is the very wide discretion given by section 501, which is to be exercised by the Minister according to the requirements of that section, but broadly speaking governed by the national interest. 

In terms of the third question, that too is really a factual question.  It will depend on whether a putative ideology - it will depend on the contents of that ideology as to whether it, of itself, can manifest the kind of risk to which section 501 refers and, in any event, that question does not arise on the facts because this was not a case about ideology alone, it was a case where there was conduct.  There was not conduct which extended to carrying out violent acts, but there was certainly conduct involving violent threats. 

There is a further difficulty with that third question which is that, so far as it is directed to challenging the reasonableness of the Minister’s conclusion that the applicant did not pass the character test, it seeks to raise a point which was conceded and not departed from on appeal, and your Honours can see that at page 156 of the application book.

Your Honours will note that there is a quotation from the primary judge’s reasons, and within paragraph [98] of that quotation your Honours will see the concession recorded, and your Honours will then see in paragraph 323 in the reasons of Justice Bromwich, his Honour records that that concession was:

not sought to be withdrawn, or challenged –

and accordingly, the appeal had to be decided upon the basis there explained.  So in light, particularly, of that last sentence of paragraph 323, it is not correct for the applicant to say in his reply submissions that that concession was not operative in the appeal.  As is made clear in paragraph 323, it was operative.

KIEFEL CJ:   Mr Herzfeld, was his Honour saying at paragraph 323 that the concession was sufficient to establish a danger?

MR HERZFELD:   That was what was conceded, yes.  It was conceded that the facts here made it reasonably open for the Minister to find a danger and that was the premise upon which his Honour explained the appeal had to be decided. 

The final thing we would say about the special questions which were set out on page 168 relates to the fourth question.  That fourth question seeks to raise a ground of appeal which was not advanced below, namely, that the Minister failed to consider the applicant’s representations.  The only way that point was run below was a submission that the Minister did not take into account that the applicant had been living a peaceful existence in the Australian community for about 12 months from January 2013 and that was rejected by both the primary judge and all of the judges of the Full Court and is not now the subject of complaint.  In any event, in our submission, there was no question or claim which the Minister did not consider and also that is still a question about the application of principles to the particular facts.

Can I then make some brief submissions about why there is no reason to doubt the conclusion of the primary judge and the majority of the Full Court.  It is true, of course, that Justice Wigney subjected the Minister’s reasons to a very extensive analysis.  But that, with respect, sits rather uneasily with his Honour’s citation of Wu Shan Liang.

But in any event, there are critical aspects of his Honour’s assessment which do not rise to the level of irrationality, but rather simply reflect disagreement with the path of reasoning that the Minister chose at particular points.  We have sought to pull out the key propositions in our written submissions, and obviously on appeal it would be necessary to take this Court through all of those matters in great detail.

But without seeking to do that, can I give your Honours some examples of the difficulties of his Honour’s reasoning, which the applicant embraces.  The first, your Honours will have seen that a significant matter relied upon by the Minister was the incident of 12 January 2014.  That is summarised in the Minister’s reasons in the supplementary application book at page 4.

Confusingly, there are two sets of page numbers.  There is a top right page number and a bottom centre page number.  It is bottom centre page number 4.  Paragraphs 9 to 10 summarise the incident that occurred.  Your Honours will have seen that the applicant’s statement was that he:

wanted to go back to Syria and blow himself up.

Now, one of the things that Justice Wigney said about this is at application book page 113 in paragraph 185.  His Honour observed that the threat was limited to blowing himself up in Syria, and:

That would, on any view, not represent any danger to the Australian community.

But that, with respect to his Honour, draws an entirely artificial distinction.  In that respect, we rely on what the primary judge said about this, which was approved by Justice Bromwich in paragraph 334 of Justice Bromwich’s reasons on page 160 of the application book.  His Honour there approved what the primary judge said about the logically open path of reasoning.

That is one of the difficulties which is repeated throughout Justice Wigney’s reasons, that it is really necessary for the applicant to show that the only logical way for the Minister to reason was for the person who threatens to blow themselves up in Syria will do so only in Syria.  Now, we submit that the reverse is so.  But it is actually necessary for the applicant to go further, which is to show that it is not open rationally to reason that threatening to blow oneself up in Syria leads to a risk that one might carry out that threat somewhere other than Syria.

Another significant matter was what the applicant said to police in his interview on 4 February 2014.  That was summarised in the Minister’s reasons in the supplementary application book on page 5 at paragraph 17.  Your Honours will see there a summary with four bullet points as to what the applicant said. 

Now, what Justice Wigney said about this may be seen at page 77 of the application book at paragraph 45.  His Honour went back to the police notes and said that from those notes it was difficult to ascertain whether the information was about what the applicant himself was doing or whether it was about what other people were doing.  But what the Minister understood from those notes was put to the applicant in the notice of intention to consider refusal.  Your Honours will see that set out at page 45 of the application book.  In paragraph 126 there is a block quote and in the second paragraph of that block quote the notice of intention summarised what might be drawn from those police notes. 

The primary judge explained that in light of that and the response given by the applicant when he was represented by a migration agent, your Honours will see that at paragraph 59 of the primary judge’s reasons on page 24, that the applicant’s response with the assistance of a migration agent was not to contest that he said the things the Minister was attributing to him but rather that he had said later in the interview that everything was a lie. 

So, in light of the applicant’s non‑denial of those things, it was then rationally open to the Minister to understand the notes in the way that he had understood them, which was not a matter dealt with by Justice Wigney.  So we do really say that when it comes to the particular facts of this matter, Justice Wigney’s reasons do go through the Minister’s reasons in great detail but really never rise to the level necessary of showing irrationality of fact finding, they simply show disagreement.

That is the case even taking into account the Minister’s finding that the applicant was suffering from a mental illness because what the Minister found was that there was a risk, nonetheless, that his statements, while affected by that mental illness, nonetheless, were evidence of an ideology of security concern.

May we make one final point.  Really, the burden of the applicant’s submissions is to show that there was only one lawful way of exercising this power, that is, that the Minister was legally required to find that the applicant passed the character test.  That is a very stark contention which really cannot be reached in circumstances where, on any view, there were factors going each way.

In circumstances where there were factors going each way, it was necessarily an evaluative exercise for the Minister, and it is simply not possible to conclude that there was only one legally‑available way in which this discretion could be exercised.  Necessarily, all the applicant can do is to try to demonstrate disagreement, even emphatic disagreement, with what the Minister did, but it cannot rise to the level of unreasonableness necessary for the applicant to succeed in the matter.  Subject to any questions, those are the submissions we would seek to put orally.

KIEFEL CJ:   Thank you, Mr Herzfeld.  Anything in reply?

MR McBETH:   Thank you, your Honours.  Just three relatively short points in reply.  The first is where my learned friend said that the applicant has never put on, or never pointed to, precisely what the difference in approach between the majority and his Honour Justice Wigney amounted to.  Now, those are enumerated in the reply submissions at 198 of the application book, particularly in paragraph 3.

But I also wanted to draw attention to one of those principles that has not been discussed at all this morning, which is that there was also an element of unreasonableness in the Minister’s failure - so I am talking now about the fact‑finding process rather than the outcome process - in the process of the fact‑finding there was an unreasonableness in the Minister’s failure to consider certain information.

So it was not only that the conclusions reached by the Minister on the material before him were unreasonable, but in a similar sense to that found this week by this Court in DUA16, the Minister had failed to consult material that was readily available to him.  For example, he could very easily have consulted the movement records that would have put beyond any doubt that this applicant did not travel to Indonesia to receive terrorist training, and his failure to do so was one of the factors that pointed to unreasonableness in the decision‑making process, the fact‑finding process, as distinct from the findings of fact themselves.  But that is just one of the matters that are set out in our reply submissions.

So Justice Wigney looked at that question, whereas the majority were more deferential and looked only at the facts as found, as distinct from the process of selecting which evidence to be looked at in finding those

facts and, in my submission, that greater degree of scrutiny is more consistent with what, for example, their Honours Justices Mortimer and Bromberg did in DMQ18, and what Justice Wigney did in the present case, as distinct from the more deferential approach.  In my submission, that is but one of the matters that this Court could give an opinion about, usefully.

My second point of reply was that my learned friend said that the applicant was seeking to advance a ground of appeal not raised below.  In fact, that is to do with the failure to make findings on certain of the applicant’s representations.  In fact, that ground arises from the judgment of his Honour Justice Wigney itself, where that was one of multiple bases which his Honour said pointed to unreasonableness in the decision‑making process.  So it arises squarely from the judgment under appeal.  That is the second point.

The third point is to do with the concession that was made by the applicant at first instance.  I say at the outset that that was dealt with in the reply submissions.  But, more importantly, it does not deal with the limb of disproportionate exercise of discretion.  This, in our submission, is an excellent vehicle for this Court considering the question of whether the Minister has exercised his discretion to weigh up the extent of the risk against the extremely serious outcomes for this particular individual.  We would encourage the Court to grant special leave to do so.  May it please the Court.

KIEFEL CJ:   Thank you, Mr McBeth.

We do not consider any question of principle is raised in this application.  There is no reason to doubt the correctness of the conclusion reached by the majority of the Full Court.  Special leave is refused, with costs.

The Court will adjourn.

AT 11.12 AM THE MATTER WAS CONCLUDED