DRY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor

[2022] HCATrans 15

[2022] HCATrans 015

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S48 of 2021

B e t w e e n -

DRY16

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

KIEFEL CJ
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND MELBOURNE

ON FRIDAY, 18 FEBRUARY 2022, AT 1.30 PM

Copyright in the High Court of Australia

KIEFEL CJ:   I will announce the appearances of the parties.

MR D.J. HOOKE, SC appears with MR S.G. LAWRENCE and MR D. BHUTANI for the applicant.  (instructed by Australian Criminal Group)

MR B.D. KAPLAN appears for the first respondent.  (instructed by Sparke Helmore Lawyers)

KIEFEL CJ:   Yes, Mr Hooke.

MR HOOKE:   May it please the Court.  Your Honours have seen the crisp point presented by this application and the way that it has divided the Full Court of the Federal Court in NBDY, Sullivan v CASA and Sun v Minister.  Your Honours have also seen, from the written material, that our proposition draws support from the judgment of Justice Deane with whom Justice Smithers agreed on that issue and with whom Justice Evatt agreed entirely in Minister for Immigration v Pochi 44 FLR 41, in an appeal from Justice Brennan who constituted the Tribunal.

Your Honours will have noticed that the statement of principle endorsed by Justice Deane – and which was drawn from the reasons of Justice Brennan – aligns with our contentions and, also, his Honour’s identification of the importance of the question of principle – which, we say, is encompassed in that issue. 

It was accepted by Justices Branson and Stone in NBDY, at paragraph 31 – seemingly as uncontroversial – that a state of satisfaction in conformity with Briginshaw and Pochi was required to be reached in determining that there had been non‑compliance of the kind alleged in this case.  Their Honours did not do so by reference to Briginshaw and that, in our submission, lends considerable support to our characterisation of the principle, not as one of evidence but, rather, one of reasonableness in reasoning and procedural fairness.

KIEFEL CJ:   How did their Honours…..their conclusion or their view?

MR HOOKE:   Their Honours dealt with it, as I say, as seemingly uncontroversial, your Honour.  It was dealt with in these terms; the Tribunal correctly directed itself as to the level of proof required in finding that the appellants had made false statements and the fact that the onus of discharging this burden lay on the Minister.  We do not embrace, of course, the concept of onus in light of this Court’s subsequent authority but the reasoning aspect of it, in our submission, remains true.

Their Honours continued in doing so and appropriately cited Singh v Minister for Immigration and Tarasovski v Minister.  There is nothing in the Tribunal’s reasons to suggest that it did not apply the test it identified.  The Tribunal carefully analysed the appellant’s claims and explained why it did not find the appellants to be creditable witnesses and why it concluded that the documents provided were bogus documents.

In reaching its conclusion, the Tribunal – as it was entitled to do – preferred the information it received from Croatia to the evidence of the appellants.  The evidence from the Croatian authorities is capable of providing the high degree of satisfaction required by the provision and there is no jurisdictional error in preferring it to the appellant’s evidence.

KIEFEL CJ:   On its face, it would not seem to lend particular support to your argument.

MR HOOKE:   Your Honour, as I say, it does not involve a great consideration of the point.  It rather treats it as a seemingly uncontroversial proposition.

KIEFEL CJ:   Why is the Briginshaw standard not tied to onus of proof?

MR HOOKE:   Well, your Honour, we would submit that Justice Dixon, when he articulated the principle, expressly did not articulate it in that way.  Indeed, his Honour ‑ ‑ ‑

KIEFEL CJ:   But what is the standard of proof logically connected with?

MR HOOKE:   Your Honour, the standard of proof must of course in this case be tied to the statute, and if your Honours take up the application book at page 100, your Honours will find section 108, which is the decision about non‑compliance provision, and your Honours see that:

The Minister is to ‑

relevantly:

(b)decide whether there was non-compliance by the visa holder in the way described in the notice.

That, in our submission, rather lends itself to the question of more probably than not.  Whether that is strictly so or not is a matter that has to be determined, but it certainly does not oust the notion that, in considering matters of quite serious criminal conduct as in this case, fabrication and the production of counterfeit documents, that one ought to take considerable care before reaching a conclusion of fact that that – to use the terms of the statute – was an aspect of non‑compliance, particularly when one has regard – as the Full Court of the Federal Court has said one must – to the very real and serious consequences of making a finding of that character.

STEWARD J:   Mr Hooke, are you able to anchor your proposition in any of the applicable statutory provisions, whether in the Migration Act or in the Administrative Appeals Tribunal Act?  I cannot see it at the moment, to be honest.

MR HOOKE:   No, your Honour, we would anchor it in section 420, which is reproduced at page 103 of the application book, in paragraph (b), that the Tribunal:

must act according to substantial justice and the merits of the case.

We say that, when one considers the nature of the subject matter, the substantial justice and merits of the case must import those notions of reasoning in the way for which we contend, by reference to the seriousness of the subject matter.  That is, in our submission, necessarily part of the substantial justice and merits of the case.

STEWARD J:   But do you accept, though, that you are taking a rule derived from a rule of evidence and bringing it into a Tribunal that is expressly not bound by rules of evidence?  Is it a piece of alchemy, is it, whereby a rule of evidence is turned into a rule of administrative law?

MR HOOKE:   No, we say it is not properly understood as a rule of evidence, your Honour, we say it is properly understood as a principle of reasoning.  True it is that the concept is partially codified in section 140 of the Uniform Evidence Act, but that is not the end of the inquiry as to the proper characterisation of the principle from which it is derived.  And, as this Court has said, section 140 of the Act is only a partial codification of the principle, which rather begs the question where else it goes.

In our submission, it goes to the heart of a proper reasoning process according to law.  We say that it is not a matter of trying to elide what is properly a rule of evidence into an administrative process, we say it is properly understood on a broader level of principle.  And we draw support for that from the consideration of what, with respect, is a fairly powerful body of judicial thought in the Pochi litigation to which we have given reference.

Your Honours, in Sullivan there was a division, as your Honours have seen, of the Court.  Justice Logan, in a very strong dissent, ironically, his Honour having been the judge who determined this case bound by decisions in which his view had not found favour, gave a very, in our respectful submission, coherent analysis of the principle and the reasons why it ought to apply.

Your Honours will have seen that analysis in his Honour’s judgment, particularly at paragraphs 15 through to 18 and his Honour’s adoption as authority for his view in that case of the judgment of the Full Court in Pochi. His Honour also took comfort, at paragraph 34, from the decision of the New South Wales Court of Appeal in O’Reilly v Law Society 24 NSWLR 204 at 230, which, of course, is also in a Tribunal to which the rules of evidence do not reply, where Justice Clarke, with whom Justice Mahoney agreed, referred to the principle in this way in relation to a finding of dishonesty on the part of the solicitor. Justice Clarke said:

In particular there is a need to distinguish carefully between cases in which the evidence of a solicitor is not accepted and those in which there is an affirmative finding that he has deliberately lied or sought to mislead the tribunal.  It goes without saying that a tribunal needs to be satisfied to that degree of persuasion which is necessary to satisfy the Briginshaw test before it can properly make a finding that a solicitor has lied or deliberately deceived the tribunal.

Justice Logan observed that his Honour’s observations are especially apt for present purposes for their reference to Briginshaw.  So we say that there is a very real body of support for the way in which we put it, and for the broader application of the principle.  And we say that, when one has regard to the way that it traces through the cases and ultimately comes to rest most recently in the decision of the Full Court, again divided, although not in the outcome, in Sun v Minister 243 FCR 220. There is a plain division that calls for this Court’s clarification.

Justice Logan, again, in that case, whilst agreeing, considered that in light of the dicta of Justices Flick and Perry in Sullivan he was constrained to hold only that a decision‑maker:

must act on material which is rationally probative –

and does more than raise a suspicion; that is at paragraphs 18 and 19 of the judgment in that case.

Your Honours, having identified the issue in that way, could I dispel some misconceptions in the respondent’s written material?  First, at paragraph 4 of the reply at application book 86 it is asserted baldly that the Tribunal did, in fact, consider the matters for determination in light of what is acknowledged to be:

the gravity and consequences of its decision –

In our submission, as much may be taken as true to the extent that the Tribunal acknowledged that if the visa were cancelled:

the applicant would not be the holder of a visa.

That is at paragraph 13.  But that is as far as any acknowledgement of consequences or gravity goes.  There is not a hint of any consideration of the seriousness of finding fraud or fabrication, or the counterfeiting of bogus documents anywhere in the reasons.  There is not a hint of any consideration of the consequences of refoulement if the applicant’s claims and supporting evidence were, in fact, not of the character that the Tribunal found. 

The reasoning process that the Tribunal, in fact, adopted moved from fairly speculative observations that the Tribunal was of the view that vagueness in aspects of the applicant’s evidence several years after the event raised doubts about aspects of the applicant’s claims.  In respect of the threatening letter – that your Honours will have seen discussed – it was posited that because it was undated and handwritten, anyone could have written it.  That was a proposition that came from the mind of the Tribunal and had no foundation anywhere in evidence. 

The Tribunal then moved from those sorts of observations directly to positive findings of fabrication of evidence, at paragraph 31, and that the applicant had supplied counterfeit documents in support of his claims, at paragraphs 38 and 29.  That is a very large step in reasoning and one that, we say, requires, as a matter of principle, to be accompanied by an awareness at a level of principle of the very serious nature of those sorts of findings and of the consequences of them.  The respondent submits that because the Tribunal is non‑curial and the rules of evidence do not apply, what we contend for is some radical departure from the statute.  But, in our submission, that mischaracterises our position significantly.   

What we contend for, as we would have it, is no more than an extrapolation of the generic statement that the respondent quotes from Li 249 CLR 332 in paragraph 21 of the response, adapted to take account of the seriousness of some matters recognised…..we have cited. Your Honours, we have never, contrary to the assertion at response paragraph 29, conceded that Briginshaw is a rule of evidence.  We said at the paragraph cited for that proposition that, properly understood, the requirement to apply Briginshaw principles is not a rule of evidence, but is an aspect of procedural fairness and legal reasonableness in decision‑making.  It represents a longstanding direction of law as to the proper way of undertaking a particular aspect of decision‑making.

I have already taken your Honours to the statutory provisions to demonstrate the error in the submission of the respondent that the statute does not, in fact, require the decision‑maker to be satisfied of anything.  Quite plainly it does, and says so in terms.  Furthermore, section 109, as your Honours see, requires the decision‑maker to evaluate the other prescribed circumstances, which include what is the correct information, the content of the genuine document, if any, the circumstances of non‑compliance and the subsequent behaviour of the visa holder.  Those all call for the determination of questions of fact of significant seriousness and with grave consequences.

Your Honours, the references in the respondent’s submission to FTZK at paragraphs 14 and 15 and Justice Hayne at 33 are inapt.  They are limited in their application to the construction and application of international conventions, not to domestic statutes.  Your Honours, in our submission, the question that we raise for the Court’s consideration which, as we say in our application, has not been the subject of determination by the Court hitherto, is, apart from being the subject of conflicting authority in the Federal Court, is one of general importance at all levels of administrative decision‑making, and it has, as we say, grave consequences for people who are the subject of such decisions.

In our submission, this case presents the issue with clarity and is a paradigm case for the Court to grant special leave and determine the matter for the first time and put the issue to rest.  Those are our submissions, may it please the Court.

KIEFEL CJ:   Thank you, Mr Hooke.  The Court will adjourn to consider the course that it will take.

AT 1.50 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.55 PM:

KIEFEL CJ:   Mr Hooke, before I proceed I notice that there is an extension of time required.

MR HOOKE:   Yes, I do apologise, your Honour, I had intended to raise that at the outset.

KIEFEL CJ:   Yes, thank you.

We are not persuaded that there is currently a division of opinion in the Federal Court on the question sought to be raised which might warrant the grant of special leave.  The appeal has insufficient prospects of success.  In these circumstances, the application for an extension of time is refused, with costs.

It goes without saying, Mr Kaplan, we need not bother you.

MR KAPLAN:   If the Court pleases.

KIEFEL CJ:   Yes, thank you.  The Court will now adjourn until 2.30 pm.

AT 1.56 PM THE MATTER WAS CONCLUDED