Eshetu, Ex parte- Re Min for Immig, Min for Immig v Eshetu
[1998] HCATrans 401
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S104 of 1998
In the matter of -
An application for Writs of Prohibition and Mandamus against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
First Respondent
PETER NYGH in his capacity as acting principal member of the REFUGEE REVIEW TRIBUNAL)
Second Respondent
Ex parte -
MOGES ESHETU
Prosecutor
Office of the Registry
Sydney No S26 of 1998
B e t w e e n -
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Appellant
and
MOGES ESHETU
Respondent
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 13 NOVEMBER 1998, AT 10.24 AM
(Continued from 12/11/98)
Copyright in the High Court of Australia
___________________
GLEESON CJ: Yes, Mr Game.
MR GAME: Yesterday afternoon I raised the question about what might happen if Part 8 or any part of Part 8 was held to be invalid, and I raised the question of seeking leave to file a notice of contention. Your Honour Justice Kirby raised the question of a cross‑appeal. On reflection, it is our application that we be given leave to file a notice of contention. I will hand the Court copies of the proposed notice of contention.
GLEESON CJ: Thank you.
GAUDRON J: Do you specify any grounds?
MR GAME: Yes, your Honour. As I said, the AD(JR) was raised in the original application. What we say is that the errors identified by the Full Court can be supported by specified grounds under the AD(JR) Act.
GAUDRON J: Yes, but which are they? Which are those specified grounds?
MR GAME: They are 5(1)(b) and 5(1)(f).
GAUDRON J: And were they taken in the proceedings that were dismissed? Is that right?
MR GAME: In effect, what happened was that it was effectively conceded - because there was a Full Court decision against, it was effectively conceded in the proceedings before Justice Hill that the AD(JR) case could not be sustained because of a Full Court decision in a case of Ozmanian and another decision in a case of Mahboob. Now, an argument was sought to be put that the AD(JR) was sustained but in effect the transitional provisions made it clear that Part 8 applied to applications such as these, namely, ones filed before September 1994.
GAUDRON J: But my question was: were those grounds specified in your application under the AD(JR) Act?
MR GAME: Yes, but I have to say there is a qualification because it did not say (1)(b) and it did not say (1)(f) but it did say “procedures” and it did say “error of law” and it did identify what the procedures were and what the errors of law were.
GAUDRON J: Do we have that application in the book?
MR GAME: You do, your Honour. So, when I equivocate, I equivocate because of the generality of the application. It appears at page 1 of the appeal book. Now, the grounds that were pursued ultimately were 5 to 8 but, as your Honour can see, section 5 is relied upon, procedures are identified in paragraph 5. We actually rely on paragraph 5 as an error of law as well, because we say section 420 is part of the applicable law under section 476(1)(e).
KIRBY J: Do I understand that you put in that first paragraph, with reference to the Administrative Decisions (Judicial Review) Act, as it were, to keep open in this Court the position that you are now seeking to reserve, the Federal Court having ruled that it could not live with the Migration Act review?
MR GAME: I think, your Honour, that would have to be regarded as a level of foresight that could not be accorded to the drafter of this document.
KIRBY J: You have it there; I am just trying to see why it was there if ‑ ‑ ‑
MR GAME: Can I tell you, the reason why is that, at this particular time, nobody quite knew what the effect of Part 8 was with respect to the AD(JR) Act.
GUMMOW J: Yes. Really it is section 485(1); it has the words “in spite of any other law”.
MR GAME: Yes, your Honour.
GUMMOW J: Which is a rather unfortunate use of terms, but that is, so it is said, apt to exclude what would otherwise be jurisdiction under the AD(JR) Act and that was not manifestly understood at the time of your proceeding here and that is why ‑ ‑ ‑
MR GAME: Yes, your Honour, and there was a rather complex argument about whether or not the transitional provisions cut out this proceeding or whether or not those proceedings were ‑ ‑ ‑
GUMMOW J: Your point is that if section 485 goes as invalid, the cloud is lifted from, what you say, was the position all along under section 5 of the AD(JR) Act - as to the implication of jurisdiction under the AD(JR) Act.
MR GAME: And the course that we would propose, in effect, gets everything before this Court, whereas, going back to Justice Hill means that the writ would have to wait and the proceedings would have to go back to Justice Hill to determine the application under the AD(JR) Act, which would be the alternative way in which this problem could be addressed.
GAUDRON J: Is it number 5 at page 2 that you rely on your notice of contention or is it something else?
MR GAME: It is not just 5, your Honour.
GAUDRON J: Well, which is it?
MR GAME: Your Honour, it is 6, 7 and 8. We have put against us an argument that section 476 ‑ ‑ ‑
GAUDRON J: But I do not understand how 6 – how you relate then to grounds that do not come under the Migration Review Act anyway.
MR GAME: Well, your Honour, you see, what is put against us is that section476(1)(e) cuts down what error of law is as contrasted with the relevant provision under the AD(JR) Act. In fact ‑ ‑ ‑
CALLINAN J: Mr Game, I just draw attention - I think you also have to look at sections 445 to 456 as well, which are sections which operate to exclude provisions of that Act. When a matter is referred to the President of the AAT - when the RRT refers a matter to the AAT. There are some express exclusions of sections of the Review Act.
MR GAME: But I think that only applies to referrals, which is not this case.
CALLINAN J: Yes, but it is indicative of an intention to exclude that Act which is consistent with section 485, I would have thought, tentatively.
MR GAME: Yes.
CALLINAN J: In other words, attention should not be confined to 485 in discussing this problem.
MR GAME: No, I accept that, your Honour. Could I come back to your Honour Justice Gaudron’s question. What we are saying is this ‑ ‑ ‑
GUMMOW J: Well, you are not saying it at the moment on this rather skimpy page.
MR GAME: What we are saying is - I am sorry, your Honour.
GUMMOW J: What you are not saying at the moment on this rather skimpy page. What you need to do is to reformulate what you say you get out of 5 and 6 which are on pages 2 and 3. You need to reformulate them in terms that reflect 5(1)(b) and 5(1)(f) of the AD(JR) Act, and they cannot be translated the one to the other, I think, otherwise one will not know what one is dealing with, and one will have to ponder on what one thinks you may have been intending.
MR GAME: Your Honour, perhaps if the notice of contention could be received but if we could have leave to file a further amended notice of contention that specifically refers to the appropriate provisions of the Administrative Decisions (Judicial Review) Act.
GAUDRON J: And relates it to your application.
MR GAME: And relates it to the application, and I apologise for not having done that.
GUMMOW J: It is not the first AD(JR) application which did not attach the relief sought to specific heads in section 5.
MR GAME: I would say that this one was brought in singularly unique circumstances, your Honour. But could I also say that there is one other matter that I should just raise. The question arises whether or not our notice of contention raises the need for any notices under section 78B of the Judiciary Act, only in the sense that we are, in effect, attracting to ourselves
the constitutional issue raised in Abebe, and I merely raised that question with the Court, but I do not ‑ ‑ ‑
GAUDRON J: Well, you really say, do you not, “If it should be decided in the other case then this is what we rely upon”?
MR GAME: Yes.
GLEESON CJ: Yes, Mr Basten.
KIRBY J: Do you take any attitude on that last matter, given that this is a separate case?
MR BASTEN: The 78B notices? We would not suggest that they are necessary in the circumstances that my friend is not arguing the point so much as relying upon what this Court might hold in another case.
KIRBY J: Well, he is – no, I do not want to cause any unnecessary difficulty but in the legal theory he is invoking the constitutional point that has been decided or argued in the other case, in case it be relevant to this case.
MR BASTEN: Yes, I do not think the Minister wishes to take any point on that, your Honour.
KIRBY J: Yes, but there are lots of other ministers. I do not know whether it may not be more appropriate after we have dealt with the matter to give the notices. It may be that they do not want to say anything more but I am not sure that we should close them out.
GUMMOW J: I am not sure what the notice would say.
KIRBY J: Well, as I understand it, the matter would say something to the effect that the AD(JR) Act applies because the foundation for the Migration Act provisions are constitutionally invalid. Anyway, I just raise the matter as something that will have to be given some thought, I think, before we finish.
MR BASTEN: Yes. Well, perhaps we may return to that, your Honour.
GLEESON CJ: Yes, Mr Basten.
MR BASTEN: Whilst on formal matters, your Honours, might I make one point before I return to the context of my argument. In our submissions on the appeal, at the top of page 6, paragraph 3.3, the final sentence of that paragraph refers to Foley v Padley but it invokes, in effect, the Hickman principle. That is not an argument upon which the Minister relies in these proceedings and we would seek to withdraw that submission.
May I return to the critical passage in Justice Davies’ judgment at page 385 of the appeal books, and I need to look a little bit more closely than I did yesterday at his Honour’s reasoning. The propositions which I seek to put are twofold. Our first position is that his Honour’s conclusion as to the flaw in the Tribunal’s approach is, itself, not supportable in its own terms.
The second proposition that I seek to put is that if there is an error properly identified in what the Tribunal did, then it does not constitute a reviewable error of law for the purpose of these proceedings and, in that regard, I will need to take your Honours to the authorities, partly those to which I referred yesterday.
Might I just indicate to start with, though, what it is we say that is wrong with the passage as it is articulated. At page 385, his Honour says:
Mr Eshetu gave to the Tribunal a detailed individual story…..not inconsistent with known facts at the relevant time. The Tribunal ought not to have rejected Mr Eshetu’s claim without coming to a view, if it could –
as to five matters which he then specifies.
GAUDRON J: I seem to have the wrong page.
MR BASTEN: I am sorry, your Honour, 385.
GAUDRON J: Yes, thank you.
MR BASTEN: At page 21 of his judgment. He specifies five matters. His Honour then says the failure to come to a conclusion as to those matters:
discloses an error of approach due to a misunderstanding of the meaning and operation of the term “well-founded fear”.
It follows –
his Honour says -
that the Tribunal’s decision involved an error of law, being an error involving an incorrect interpretation of the applicable law.
Now, if one firstly looks at what his Honour is saying in its own terms, there was perhaps - although we say this is not a matter for his Honour - nothing inherently implausible, a phrase which his Honour had used on a previous occasion at the top of page 384 and elsewhere, if the story that the applicant gave were viewed in isolation, but the Tribunal was not required to view it in isolation; it was entitled and did view the argument, the application, against its understanding of the circumstances in Ethiopia at the time. And it said that in that context the story was implausible.
In effect, the Tribunal said, “I want some independent basis for verifying his account or, alternatively, a satisfactory explanation for why it might have occurred but not be recorded or known to those who monitored these things”. That, in our respectful submission, was neither unreasonable, let alone perverse, nor illogical if that matters.
McHUGH J: But are you doing justice to his Honour’s approach? Does not his Honour’s approach begin with this proposition? That to determine whether an applicant has a well-ounded fear of persecution, it is necessary to concentrate on the applicant’s story as to why his fear of persecution developed and whether there is a real chance of such persecution occurring if he returns to his homeland, and that it is necessary to make findings about the past so far as is possible, to determine the chance in the future. That seems to be his Honour’s major premise which is set out basically at 383 of the judgment, and then his Honour says, particularly at 385, that the Tribunal did not develop - did not analyse the development of this fear. It did not make findings which it was rationally bound to make and, therefore, it indicates it did not understand the test it had to apply.
MR BASTEN: I accept entirely the way your Honour puts it. Your Honour has, perhaps, anticipated, in a sense - I have a criticism of the logic of that in this case but I accept the way your Honour puts it. The result, however, is that his Honour rejected, in effect, the Tribunal’s finding of primary fact, namely, that his Honour said the Tribunal could not fail to be satisfied of the primary fact, namely, the events of December 1991, in these circumstances. Now, we have some discussion, perhaps later, about whether that can amount to an error of law. But the problem with what his Honour does in this passage is, in our submission, this. One can reject a story, obviously, on the grounds of internal inconsistency. However, what his Honour is saying is that this story was, or could have been, internally consistent. But if what is sought by the Tribunal is not to determine whether there is internal inconsistency or otherwise, but whether any part of it is capable of independent verification, then it would not assist the Tribunal to look at the internal elements of the story unless some of those internal elements themselves would have been capable of independent verification.
So that what the Tribunal is doing is saying, “He tells me a story. Internally it may be entirely consistent but if I want independent verification it does not help me to look at whether he was, as he said, wearing blue shoes or not because there is no way I can independently verify that fact”. And, with respect, if the Tribunal’s analysis was open to it, then his Honour’s criticism that it did not look at the various elements of the story as told by the applicant and determined whether or not they were true is beside the point because none of them provide independent verification, and that was what the Tribunal wanted and what it was entitled to look for in circumstances where it said the story was not inherently plausible in the circumstances.
McHUGH J: But his Honour’s answer to that is that the Tribunal misunderstood what it had to do because it did not examine the story, it did not make findings or attempt to make findings about matters which were critical to a proper application of the term “well‑founded fear” and therefore it indicates that the Tribunal did not understand the correct meaning of that.
MR BASTEN: Well, may we look at it, your Honour, in terms of the actual facts.
McHUGH J: Yes.
MR GAME: I set aside the first fact, namely, whether Mr Eshetu had been a member of the student council, as he alleged - I indicated yesterday a fair reading of the decision accepted that finding – whether he had suffered an injury to his leg. Now, that fact, in the abstract, is neither here nor there. The critical words are “as he said”, ie, in the course of an incident which needs some verification, but whether his leg was injured or not was not itself readily capable of verification, one would think. He gave no evidence to support the fact that he had any injury other than what he said. There might have been no medical evidence. The question was whether the injury occurred during an incident which he described and it is not as if there were some aspect of the injury which could not have occurred otherwise than in December 1991 and by standing on a cold floor.
McHUGH J: But let us look at it positively. Supposing the Tribunal had found that he had been a member of the council and that he had suffered an injury to his legs, that he had left the university and so on, that he had hidden in his brother’s house and he had left Ethiopia because of persecution. There could only be one conclusion the Tribunal could come to: that he would have a well‑founded fear.
MR BASTEN: But, with respect, that is ‑ ‑ ‑
McHUGH J: But they make no attempt to investigate those facts.
MR BASTEN: No.
McHUGH J: Is that his Honour’s criticism?
MR BASTEN: But, with respect, that analysis is circular because it is as he said. In other words, whether he had an injury or not is not, of itself, as an abstract question, relevant. What the question is, was “Did he suffer an injury in this incident?” Similarly, “Did he leave the university in December 1991?” Well, perhaps he did because he left the country soon thereafter. That is not the question for the Tribunal.
The Tribunal needs to know if he left it because of this incident, namely, the tension and persecution by the police and, similarly, he may have hidden in his brother’s house. He may have had good reason to flee the police for some other reason. That would not assist the Tribunal. So that what we say is that none of these things, even if accepted, would give rise to verification unless, circularly, the acceptance goes to, as he said, namely, as a result of the incident which is in issue.
McHUGH J: I am not sure that you are answering his Honour’s line of reasoning. His Honour is not saying that the Tribunal, necessarily, could have found these facts or made findings about them.
MR BASTEN: No.
McHUGH J: His Honour is rather saying that the fact that the Tribunal did not even attempt to determine the truth of them indicates that it really did not understand the real issue to be determined.
MR BASTEN: Well, my answer, your Honour, is that the real issue to be determined was whether this incident occurred in December 1991 and, either it occurred or it did not, and these internal elements of the story, none of which are themselves independently verifiable, cannot be usefully addressed and, anyway, they can only be addressed in terms of whether one believes the applicant or not and the Tribunal does not believe the applicant that the incident occurred and, therefore, does not believe the applicant that these injuries and events took place at that time and in those circumstances and that, as the Solicitor said in his letter to the Tribunal, was all the matter of credibility.
It may even be - and this is the next stage of the argument - that one might fault the approach that the Tribunal took to the question of credibility. That, we will say, is not an error of law. We just see a certain circularity in his Honour’s concern about these questions in circumstances where it is really all related to the internal consistency of the applicant’s evidence and none of them will assist with independent verification which the Tribunal was seeking. That is the way in which we put it.
McHUGH J: Yes, quite.
MR BASTEN: It may be, your Honours, that if that is not right, then one needs to go to the next stage of the analysis and ask, in circumstances where what his Honour has identified is a problem with a failure to be satisfied of a relevant and material primary fact, that can amount to an error of law and our primary position in relation to that is that the Court is not entitled to undertake that exercise under this Act nor, indeed, we would say, where it to become necessary, at common law.
GAUDRON J: If his Honour was right though at page 385, particularly, he says, it involved:
a misunderstanding of the meaning and operation of the term “well‑founded fear” –
would that not be a constructive failure to exercise jurisdiction as recognised in relation to the writs of prohibition and mandamus?
MR BASTEN: Your Honour, if what his Honour says in the first 20 lines on page 385 justified the final sentence of that paragraph, the answer would inevitably be yes because there would be an error of law in relation to a Convention term, namely, “well-founded fear”.
GUMMOW J: And that would fall within 476(1)(e)?
MR BASTEN: Undoubtedly. There would be an incorrect interpretation. Our problem with the way that his Honour addresses the matter is that one cannot say that in the abstract; one has to identify what is the misunderstanding. What his Honour says is that the misunderstanding is illustrated by the failure of the approach taken. Now, we say that does not logically follow. For the reasons I have already given, what his Honour was asking does not indicate at all that there was any misunderstanding of the Tribunal’s function. At the very best it is a suggestion that it might have been carried out in a different way but it is going to the assessment of credibility on a primary fact which everybody acknowledged - it was common ground - was the function of the Tribunal. So, I suppose that yes, your Honour, in formal terms he identifies what could be an error of law; no, your Honour, that is not the error which the Tribunal makes, we say, in the present case.
GAUDRON J: Yes, I understand that.
MR BASTEN: I said yesterday that I would wish to take your Honours back to Bond’s Case. We do deal, at paragraph 4.3 of our written submissions on the appeal and in some more detail at paragraph 2.2 to 2.6 on the writ, with Bond and I took your Honours to Bond yesterday, and I will not, therefore, need to repeat the points that I have made. May I also say that I will try to cover the territory of the two matters in the sense that I will try to avoid the need to come back to these issues in relation to the common law principles in relation to the writ, so I may take a little longer than I would otherwise do for the purposes of the appeal.
May I hand up some further material for the purposes of this argument. Firstly, it may be of assistance to your Honours to have a copy of section 5 of the Administrative Decisions (Judicial Review) Act before your Honours and I also wish to refer in due course to the decision of the New South Wales Court of Appeal in Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 139.
GUMMOW J: Are you going to be encouraging us to follow that, are you?
KIRBY J: Or overrule it?
MR BASTEN: Follow part, your Honour, and not accept another part of your Honour Justice Kirby’s judgment, but I was going to go to the majority judgment of Justice Glass for the proposition in relation to the reversal of an onus of proof, in effect, by challenging negative finding on the basis of no evidence.
GAUDRON J: I have been wondering about the onus of proof in these cases - more particularly, in inquisitorial proceedings. Does that deal with that?
MR BASTEN: No, your Honour.
GLEESON CJ: Is the onus of proof a concept that arises in inquisitorial proceedings?
MR BASTEN: It arises under this Act, your Honour, to the extent that the statutory test is the satisfaction of the Minister, the Delegate or the Tribunal in this case. So that, unless the material before the Tribunal - perhaps not brought by the applicant - positively satisfies the decision maker of a particular fact, then there is no entitlement to the visa and the visa is not available.
GAUDRON J: Well, I am wondering about that.
GUMMOW J: I thought we dealt with all of this in Wu.
MR BASTEN: Well, we did - I am sorry, your Honours did. In fact, I was going to rely upon a passage in ‑ ‑ ‑
GUMMOW J: There is a reference to what Sir Harry Gibbs said in Buck v Bavone.
Well, there is that point, your Honour, and also the passage in 185 CLR at the bottom of page 274, at about point 9, in the judgment of the Chief Justice, and Justice Toohey, and your Honours Justices McHugh and Gummow:
A condition of determination is the Minister’s satisfaction. Accordingly, it is inappropriate to describe a decision refusing refugee status as a decision not to determine that the person is a refugee. Rather, it is a decision that the Minister is not satisfied that the person has a genuine fear –
and so on. So I was really, as it were, only reiterating that particular passage, which we say, for reasons I indicated yesterday, is applicable under the current Act.
KIRBY J: Did we ever get Azzopardi? I do not wish to appear anxious to get it, but if you are going to use it.
MR BASTEN: Your Honours, I have it. And there is a third case, that of Commissioner of Taxation v McCabe (1990) 26 FCR 431. I will hand them up together, if I may. McCabe’s Case ‑ ‑ ‑
KIRBY J: My understanding is that the Federal Court did not follow Azzopardi or has taken a broader view of what is an error of law. Am I correct in that?
MR BASTEN: Yes. your Honour. I am sorry, a broader view?
KIRBY J: Yes.
McHUGH J: They say a perverse finding of fact can be an error of law, do they not?
MR BASTEN: I am sorry, who, I did not hear that?
McHUGH J: Does not the Federal Court’s decision say that a perverse finding of fact can involve an error of law?
MR BASTEN: Prior to Bond, there was authority for that position. Our understanding of Bond is that that was not accepted and, in particular, the Chief Justice’s comments on Pashmforoosh suggest that. In McCabe Justice Davies suggests a different interpretation of Bond, based upon your Honour’s judgment in Chan, and we would say based upon a misapprehension of what your Honour was saying in Chan. In this particular case, Justice Davies, in identifying what he needs to do for the purposes of finding an error of law, relies upon the approach he adopts in McCabe and therefore his Honour’s consideration may be effected by what we would say is an incorrect interpretation of Bond’s Case. I may need to make that proposition good very briefly, and for that ‑ ‑ ‑
GUMMOW J: But you have to found on Bond, as properly understood.
MR BASTEN: Yes, that is so. We found on Bond and on the proposition that for the purposes of section 476(1)(e) the error of law ground is narrower than either at common law or under the Judicial Review Act as interpreted in Bond.
Now, might I start them by going to Bond. I will try not to repeat further than necessary what I took your Honours to before. But the relevant passage is that which commences on page 355, and I read it to your Honours yesterday, but might I just refer again to the conclusion after the reference to White’s Case at page 356, at point 3:
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
Now, that passage becomes critical in McCabe because there is a clear distinction, we say, being drawn between a finding of fact, for which there must be some probative evidence, and an inference drawn from that fact. In other words, there must be a supportable fact and a reasonably available inference, and if there is there is no error of law involved.
GLEESON CJ: How do you relate that principle – perhaps this gets back to a question of onus that was raised earlier, which may not have a place to play in inquisitorial proceedings – but how do you relate that principle to something which is not a finding of fact, but just is a refusal or a failure to be satisfied because you do not believe the person who is setting out to satisfy you?
MR BASTEN: Well, we say that that is, as it were, a higher hurdle for respondent to leap. If this passage is correct, one can never get to that question at all. That is the basis upon which one comes back to, perhaps, not the precise terms of the judgment in Azzopardi, but at least the principle involved there, namely, that if the error of law depends upon there being no probative material of something, then a failure to be satisfied can never amount to an error of law, and that is the principle that we take from the judgment of Justice Glass in Azzopardi. Your Honour, it is consistent with what - if I might just jump ahead for a moment - the Chief Justice says at page 359, because this comes back to the pre-Bond cases, including Pashmforoosh. At point 4 he says:
However, in several decisions it has been suggested that findings of fact which are unreasonable or arbitrary may be reviewed under s. 5(1)(e) –
and so on, and he refers to Pashmforoosh, quotes fro the judgment of the Justices in the Full Court:
“Thus, decisions may be set aside because, being insufficiently supported by reason, they appear to be an improper exercise of the power conferred or arbitrary or because there was no evidence of other material sufficient to justify the making of the decision –
the decision was manifestly unreasonable, and so on. And then the passage in italics:
the making of, or failure to make, a particular -
and I emphasise in answer to your Honour’s question -
failure to make, a particular finding of fact in the course of the reasoning process may equally be attacked on any such ground.
Of that, his Honour says:
This statement is unobjectionable to the extent that a finding of fact constitutes a “decision” such that it can be reviewed…..But if the finding does not constitute a “decision”, it is beyond review independently of such a “decision”. In accordance ‑ ‑ ‑
GUMMOW J: That is an invocation of the definition of “decision”, in the AD(JR) Act, is it not?
MR BASTEN: It is, yes.
GUMMOW J: It has to be. That is what he was talking about, because the proposition was that there was a plurality, there was a sequential group of decisions here ‑ ‑ ‑
MR BASTEN: That is so.
GUMMOW J: ‑ ‑ ‑ and his Honour is disencouraging that view of it.
MR BASTEN: That is so, your Honour. Now, I accept what your Honour is putting to me, but this is to be read in the context of an analysis of the Judicial Review Act – I have now skipped two pages to get to this – but his Honour deals, at page 358, with the possibility that there is a difference between the common law position and the AD(JR) Act position; rejects that proposition, and then continues with the discussion in relation to the “no evidence” ground. At the bottom of page 358, his Honour refers to the “acting perversely” principle, identifies that at the top of the next page as signifying “acting without any probative evidence” and his Honour says:
the AD(JR) Act does not permit general review of findings of fact, in the absence of error of law…..Pincus J. held that…..an error of law within the meaning of s. 5(1)(f) could not include a mere lack of evidence, as distinct from a complete absence of evidence.
So up to that position, when his Honour, as it were, comes back to analyse possible contrary authority, we would understand him not to be making a distinction between error of law under the Act and at common law, and we ‑ ‑ ‑
GUMMOW J: No, but one of the difficulties that has been caused by this judgment is that it seems to freeze the common law in 1977, at the date of the enactment of the AD(JR) Act, and therefore to not accommodate a situation, which goes back to what Justice McHugh was putting yesterday in argument, that maybe for 75(v) the grounds evolve in a common law context, and what may be attractive under 75(v) in 1998 in the common law sense, and therefore in the Federal Court under 39B, is different to what encompassed by error of law in 1977, as frozen in the AD(JR) Act, and that is a fundamental problem.
MR BASTEN: It is a fundamental problem in theory.
GUMMOW J: Well, given the later English cases after 1977, perhaps in reality.
MR BASTEN: Yes. Your Honour, it depends – Page’s Case and so on may give some support to that proposition. One comes back, I suppose, to the question of whether there has been a divergence between the English and Australian authorities since Anisminic and Craig’s Case and so on. But the question would become one here as to whether it is still correct to say what his Honour says at the top of page 357, namely, that there is no Australian authority in this Court which adopts the logically self‑contradictory test referred to in Mahon v Air New Zealand. I am referring to that passage from the bottom of 356 to the top of 357. Now, we, with respect, would say that there is no authority in support of that proposition and Bond’s Case and the authorities upon which his Honour relies are against that proposition.
GAUDRON J: But if it is logically self‑contradictory, would it not fall within Wednesbury unreasonableness anyway? I do not think you have that problem in this case.
MR BASTEN: No, I understand hypothetically that may be so, but one really comes to the proposition as defined at the bottom of 356:
that natural justice requires that “the decision to make [a] finding must be based upon some material –
uncontroversial –
that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory”.
GAUDRON J: Yes, it may not be a natural justice requirement but it may come within Wednesbury.
MR BASTEN: It may do, your Honour, but if one is ‑ ‑ ‑
HAYNE J: And in the present context, what is the finding that we are to apply these tests to?
MR BASTEN: That is so, that is the question and we would say in this case the finding is a failure to be satisfied of a well-founded fear based on a Convention ground, not ‑ ‑ ‑
GAUDRON J: One of the difficulties I have with these decisions is that it really does seem to me that there are two separate questions. Is there a fear and is it well-founded? Unless those tests are separated out by the decision maker, you really cannot apply any of these questions or tests to it.
MR BASTEN: Yes.
GLEESON CJ: A third question might be: what is it a fear of? An Australian citizen might turn up in Majorca and say, “I’m on the run, I have a fear of something”, and it might be a genuine subjective fear.
MR BASTEN: And it must be a persecution, not, for example, prosecution as is sometimes said.
GLEESON CJ: Yes.
MR BASTEN: I accept those, your Honour. I mean, in this case one has to say that the distinction was drawn because the Tribunal accepted the genuineness of the subjective fear and, in a sense, the Tribunal is damned if it does and damned if it does not because it then goes on to look at the objective support for that and is accused of not paying enough attention to the subjective elements of the case which it had accepted. But I accept what your Honour puts, I do not have a difficulty with that. Just to come back to Justice Hayne’s question of, to what one applies the test and this is, in part, an answer to what is said in McCabe, to which I have not yet taken your Honour’s, but might I go back to Chan’s Case 169 CLR 379 and may I go to the passage in your Honour Justice McHugh’s judgment at 433 which is not referenced in McCabe specifically but appears to be what is relied upon and, in a sense, it may be behind your Honour’s question to me yesterday. At 433, point 3, your Honour said:
As I have earlier pointed out, the delegate impliedly found that the appellant had been exiled and detailed. he also found that the appellant had “been discriminated against to a limited degree…..That perception was that the family was anti-revolutionary. The discrimination –
your Honour says sardonically –
included exile for six years. Hence the delegate must have found that the appellant was exiled for about six years because his family was considered “anti-revolutionary”. Yet he held that “This did not amount to persecution within the terms of the Convention”.
And so on. And your Honour’s final sentence in that paragraph:
Exile for such a lengthy period for that reason would be a serious invasion of the appellant’s freedom and would constitute “persecution” within the Convention. The question, therefore, is whether the delegate could reasonably find that the exile of the appellant because of the perception that his family was anti‑revolutionary was not “for reasons of … political opinion”.
And that, with respect, is the ultimate question to which your Honour applies the test of Wednesbury unreasonableness and that is strictly in accordance with all the authorities and that is supported by the passage at the bottom of page 434 in the final paragraph on that page at point 9:
Having regard to the findings, express and implied, of the delegate, his decision that the appellant did not have a well-founded fear of being persecuted within the meaning of the Convention and protocol was unreasonable –
and that is the correct approach, we would respectfully submit, and that is the issue to which the issue to which the test of manifest unreasonableness should be addressed and it was correctly addressed in that case where the findings had been made and therefore there was no need to challenge the fact-finding exercise of the Tribunal, or decision.
GUMMOW J: Well, I have never been satisfied that Wednesbury unreasonableness is concerned with anything more than the exercise of a discretion, where there is a discretion in a particular case, not the nature of any fact-finding process, the determination of which is an underlying matter before you come to exercise the discretion.
MR BASTEN: Yes, well ‑ ‑ ‑
GUMMOW J: There is no decision of this Court, I think, that forecloses that view of Wednesbury unreasonableness.
MR BASTEN: That would be consistent, I think, with what I am putting, your Honour. I suppose one would say, in relation to the use of the term “discretion”, including the exercise of value judgments in the context, as oppose to a discretionary exercise of power.
GUMMOW J: Well, where the statute reposes a power.
MR BASTEN: Yes, that is so. Before I leave Bond’s Case 170 CLR 358 might I just go back to this distinction that I was drawing in principle. At page 358, point 3, the Chief Justice noted that:
As the respondents do not seek to bring this case within s 5(3)(a) or (b), the ground of review in s 5(1)(h) has no direct application here. But the presence of s 5(3) tells against an expansive interpretation of s 5(1)(f) –
which is the error of law ground.
Indeed, it might be argued from the presence of s 5(1)(h) and (3) that they constitute a definitive and exhaustive statement of the “no evidence” ground of review for the purpose of s 5, thereby excluding such a ground from the concept of “error of law” in s 5(1)(f).
Of course, for present purposes, the “no evidence” ground is expressly set out in terms which I think are relevantly identical to the provisions referred to by his Honour in the AD(JR) Act and your Honours were taken yesterday to section 476(1)(g) and subsection (4), but his Honour then goes on to say:
such a result would verge upon the extreme and would pay scant attention to the traditional common law principle that an absence of evidence to sustain a finding or inference of fact gives rise to an error of law. The better view, one which seeks to harmonize the two grounds of review, is to treat “error of law” in s 5(1)(f) as embracing the “no evidence” ground as it was accepted and applied in Australia before the enactment of the AD(JR) Act –
We say that the first of his Honour’s suggested approaches is the correct interpretation of section 476(1)(e) which was applied in this case, because it involves the words, in addition to those which appear in the AD(JR) Act, of definition. It is a decision which:
involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found –
If those words have a meaning they are, we would say, restrictive of the ground and they suggest that that the first approach his Honour suggests is the correct one to apply in this case. The “no evidence” ground is otherwise dealt with in 476(1)(g).
GLEESON CJ: What would be the rubric under which you would deal with a problem of this kind? Put to one side a case in which the Delegate or the Tribunal, confronted with assertions made by a person claiming refugee status, does his or her best to examine those assertions for internal consistency and to check, by reference to such external sources as are available - put that to one side. Suppose you have a case in which the Tribunal says, “I’ve heard this story from this person claiming refugee status. The person had a very shifty look and appeared to be dishonest, so I’m not satisfied.” Under what heading would you deal with that?
MR BASTEN: Dismissal. We would say there would be no basis for reviewing the decision under the Migration Act or under the AD(JR) Act, assuming that there is no other difficulty with the approach taken. If it turns on the credibility of the applicant solely, the Tribunal is entitled to make that assessment of credibility and appear ‑ ‑ ‑
GAUDRON J: Surely, though, that imposes an onus. To do that imposes an onus on the refugee, does it not?
MR BASTEN: No, with respect, your Honour, it leaves the decision maker with an unfettered power to accept or reject the material which is put before him or her.
GLEESON CJ: I tried to give an example which I thought was an irrational approach. It occurred to me that to reject somebody because they had a shifty look in circumstances might be highly unreasonable.
MR BASTEN: I mistook, your Honour, I thought courts did it all the time.
GLEESON CJ: Well, that is a pinocchio theory of justice.
MR BASTEN: I am not sure, nevertheless, your Honour, that there is any ground of review because what one has to say is that the Tribunal should have accepted something which it did not accept.
GAUDRON J: Is there not something, though, additional that has to be factored into the Chief Justice’s question? There will always be a background. There will always be some information about the country where the persecution is feared.
MR BASTEN: Yes.
GAUDRON J: It seems to me that if you cannot really apply the onus of proof in this area - and I very much doubt that you can - you have to be looking for something in that background information, either the presence or absence of something, which you have in this case, of course, to support your lack of satisfaction before you can say it is reasonable.
GLEESON CJ: Or there could be some inherent implausibility or inconsistency in the story. A person may say, “Martians have conquered my native land and I am fleeing from persecution by them”, and it might not take long to reach a stage of lack of satisfaction with that story.
MR BASTEN: Yes. Your Honour, I think the answer that I would give, on the assumption that your Honour makes that the rejection of the applicant’s story is, on a ground of assessment of credibility, but an inappropriate form of assessment, that the Parliament has, nevertheless, reposed that fact-finding exercise in the Tribunal and it is simply not a matter upon which a ground of judicial review can arise. The fact-finding exercise has been undertaken. If the Tribunal had said, “I have every reason to believe the applicant, nevertheless, I am not going to act on the story”, that would be another matter. But if there is a genuine rejection of the applicant’s evidence, then that is not reviewable, we would say. Whether a court thought the reason given was sufficient or not. What your Honour is putting to me is an analysis of a reason given, presumably. One has no other evidence about what the Tribunal did. So, I think I would adhere to the conclusion that I suggested but, perhaps, on a slightly wider basis.
GAUDRON J: In the present case, you have said the Tribunal accepted there was a fear, but it was not well founded.
MR BASTEN: Yes.
GAUDRON J: Could that be done logically in this case by rejecting the evidence of the student council arrest?
MR BASTEN: Yes, your Honour, it could be. One can say of a person that they do have a fear of their government, but in order to satisfy you that that fear is well founded, they have invented facts which you do not accept and their fear may remain genuine, you cannot necessarily disbelieve it, but they have given you nothing which objectively supports the fear. And that is, as I would understand it, pretty close to the Tribunal’s reasoning in this case.
HAYNE J: Or in this case, did not the Tribunal say that some, at least, of the subjective fear was founded in the rumours circulating in the émigré community.
MR BASTEN: Yes, that is so, and, of course, the fear has to be for a convention reason, and one can fear going back to a troubled country for all sorts of totally understandable reasons without being able to satisfy the Tribunal that your fear is based upon something more specific, namely, one of the four Convention grounds.
GLEESON CJ: I wondered whether on proper analysis all that Justice Davies’ criticisms of the reasoning of the Tribunal amount to is the proposition that the Tribunal was too quick to come to a particular factual conclusion and it is hard to find in that an error of law.
MR BASTEN: Yes. We would accept what your Honour says in the latter part; whether he is really ‑ ‑ ‑
GLEESON CJ: If all you can say is the Tribunal did not reason with sufficient care about a particular subject ‑ ‑ ‑
MR BASTEN: Yes. Might I say that that may be what his Honour has in mind; he would not have said it though in those terms, because this would have been, one suspects, one of the longest and most detailed decisions that he would have seen from the Refugee Review Tribunal, and I have not sought to take your Honours through the detail of it, but it really does go into the material in some detail. It was a case in which the Tribunal undertook, as we noted yesterday, its own investigations, including writing to a foreign country and seeking information from people there. It was, as it were, unusual in that respect, and the Tribunal at one stage wrote to the applicant and apologised for the delay in reaching a decision. So it was not quick in the sense that – the process was quick, but the reasoning in parts may have jumped, as it were, from one point to another, and that may be what his Honour is putting.
Your Honours, I do accept that some of the submissions that I am making in relation to the law go beyond what is necessary for the purposes of this appeal, but if I could just conclude those submissions, some of them are relevant in relation to the next proceeding and I will be therefore briefer in that regard. Why I say that I thought it necessary to undertake some of this analysis was that his Honour’s judgment identifies two sources of legal principle upon which the reliance based is unclear but which are dealt with in some detail and therefore may be of relevance to understanding his ultimate conclusion.
Might I refer firstly to McCabe’s Case not to take your Honours through it in detail, but to identify what we say are errors in the understanding of Bond, which are set out there. It is a case in relation to the establishment under the Income Tax Act of a negative proposition. The relevant section I need not take your Honours to, but it is set out at page 433.
The discussion I wanted to go is at 438 and, in particular, at about point 3 on the page, after referring to Pashmforoosh, his Honour said:
What was said in those cases was that a decision could be set aside if the reasoning process leading to it involved the making of a finding of fact which was unreasonable, particularly findings which seemed arbitrary…..the present is just such a case –
and then in relation to Bond, three lines into the next paragraph:
On one view, Bond’s case enunciated a new approach to administrative law –
now, if his Honour means it disagreed with Pashmforoosh, we would say, yes, it did. However, he then goes on to suggest that that was not what was intended in Bond. That, in our respectful submission, is underestimating the strength of the comment which the Chief Justice was making. The other point I would seek to make is in relation to a passage at the top ‑ ‑ ‑
GAUDRON J: Well, what did his Honour mean there?
MR BASTEN: Well, what his Honour does ‑ ‑ ‑
GAUDRON J: Because Chief Justice Mason specifically referred to Pashmforoosh.
MR BASTEN: Yes. The answer is not readily ascertained from that passage but his Honour goes on to make some other comments which are consistent with a view that - the comment on Pashmforoosh is not what it appears to be, I suppose, but ‑ ‑ ‑
KIRBY J: But if you actually look at Bond, at 359, where Chief Justice Mason deals with Pashmforoosh, his Honour is dealing with it, as Justice Gummow pointed out earlier, in dealing with the issue of what is a “decision”. He refers to - he says there are several decisions where it is suggested unreasonable arbitrary findings may be reviewed and he just sets those out. He does not say they are wrong. He then says:
This statement is unobjectionable to the extent that a finding of fact constitutes a “decision” –
his Honour does not ‑ ‑ ‑
MR BASTEN: We would respectfully say that his Honour is doing more than that. I accept that he is uses the term “decision” which is the statutory term but is it not intended, in his Honour’s analysis, to be consistent with the distinction between facta prebend or facta probantia as identified by Justice Fullagar in Hayes Case. In other words, the primary facts need to be distinguished from the ultimate fact and the decision is that which encompasses the ultimate fact and that is the distinction which his Honour is seeking to make.
KIRBY J: All I am saying is that his Honour does not expressly disapprove of Pashmforoosh. On the contrary, the passage that he quotes is unobjectionable so far as it goes.
MR BASTEN: On a particular basis. Well we would say that is ‑ ‑ ‑
KIRBY J: But you are trying to say that his Honour disapproved of it, and he did not.
MR BASTEN: In terms, no, your Honour, but he read it in a way which it had not been hitherto read. But if one ‑ ‑ ‑
KIRBY J: How can it ever be a legally acceptable thing for a judge who has to give reasons to make a perverse finding of fact? How can that ever be acceptable? That is an error of law.
MR BASTEN: Well, there is a distinction, I suppose, which needs to be borne in mind between the role of the judge and the right of appeal from his or her judgment and the role of the administrative decision maker. But, again, the question is one which ‑ ‑ ‑
KIRBY J: Well, that may be a different thing. But you are seeking to defend, as I understand it, Justice Glass’s view in Azzopardi. I will never be convinced that is correct. I think there is plenty of authority that says it is not, and I say that with every respect to Justice Glass who was a great judge.
MR BASTEN: Your Honour, but that is on the question of whether or not one can attack a failure to make a finding of a particular fact and I am not sure, with respect, that what his Honour said to that extent is inconsistent with what your Honour said at 4 NSWLR 151B to D but, in addition ‑ ‑ ‑
KIRBY J: I see that in the headnote of that case I am shown as dissenting but I agreed in the order of the court, so, I was not dissenting. I was disagreeing on a particular construction of the law.
MR BASTEN: That is so, I agree, yes. I am sorry to divert but at page 151B, your Honour said:
The finding of what have been called the primary facts of a case does not, in itself, expose the trial judge to review on a point of law, unless it can be shown that there is no evidence of a primary fact and that, this being crucial to his decision, the judge’s fact finding has involved an error of law.
Now, we would respectfully accept everything that your Honour says in that full paragraph and we do not understand it to be inconsistent with anything said in Bond, although on one interpretation it may have been more limited than what was said in Pashmforoosh in that paragraph. But might I just take your Honours through McCabe’s Case to page 440? At the bottom of page 440, his Honour refers to the passage I have quoted from Bond’s Case and says:
The last comment could be seen to reflect the comments of Lord Sumner…..in R v Nat Bell Liquors –
and he then sets out a lengthy passage from Lord Sumner’s speech and at about point 3, about halfway through that passage on 441, Lord Sumner says:
On certiorari, so far as the presence or absence of evidence becomes material, the question can at most be whether any evidence at all was given on the essential point referred to. Its weight is entirely for the inferior Court –
And then at the bottom of the passage, his Honour says:
However, Mason CJ did not enunciate that approach.
And, with respect, we would not accept that as a fair analysis of a his Honour’s judgment. He refers back to his Honour using the expression “reasonably open” but that is an inference which is reasonably open and it is clear that that must be based upon a finding of fact for which there is some material support. Read in that way, there is no inconsistency between what his Honour the Chief Justice said and Nat Bell and for a similar reason we do not accept the restatement at page 442 at about point 4 in the first three lines of that paragraph. Now, your Honours, I need not perhaps harp on that point at any greater length.
KIRBY J: I realise how you are using McCabe because of the fact that it was Justice Davies’ decision and he referred to it in this case.
MR BASTEN: Yes, he refers to it.
KIRBY J: But there must have been many cases since Bond where the Full Court of the Federal Court has had to review what has been an attempt to be dressed up as an error of law but, on your theory of things, is really just an attempt to getting a leg in on real issues of fact.
MR BASTEN: Yes.
KIRBY J: Now, has the Full Federal Court dealt with that issue or not?
McHUGH J: They certainly have. There are no less than about 35 decisions, I think.
MR BASTEN: Yes. I am not sure whether they go to this particular aspect of the interpretation given in McCabe to Bond, but there are innumerable decisions - your Honour may have the precise number - which deal with the point in principle.
GUMMOW J: A fair number of them are tax cases in which the commissioner has been unsuccessful in the board of review. He says, “I have an error of law under 44 of the AAT Act”.
MR BASTEN: Yes, that is so.
GUMMOW J: Do not worry too much about Bond. The board of review went off the rails factually.
MR BASTEN: Yes, well, we rely upon what I have elucidated from Bond and I have only taken your Honours, as it were, to this particular case because it is in the context of the decision of this Court that it becomes relevant, and if I needed to be critical of other cases that might be something for another time.
KIRBY J: Given that obviously a line must be drawn between an error of law and a full factual review, but given also that at least there is one line of authority that says you reach a point where a factual finding is so perverse and revealed to be such by the reasons which a judicial officer is obliged to give, is there any help you can give in how one draws the line between, as it were, stopping a full factual review which is impermissible but, nonetheless, finding some formula that assists to provide for relief when a judge has gone to the truly extraordinary or perverse or irrational decision on facts, for example, saying, “I didn’t believe him because his skin was black”, or something of that kind? Now, how does one find a formula? Is there anything in any other legal system in the United States or Canada or New Zealand or anywhere else that has tackled this issue? It is a very important one?
GAUDRON J: The position may be different with judges and administrative decision makers. The test in Abalos and that line of country relates to judges.
GLEESON CJ: The problems first arose in relation to juries, did they not? And the concept of what constitutes a perverse decision of a jury was one that was established a long time ago.
MR BASTEN: Yes.
KIRBY J: But juries give no reasons, whereas we are now in the realm which is very regular for 100 years where judges give reasons and they are available to be scrutinised and if they are perverse, irrational or manifestly and plainly wrong, then one baulks at the idea that there is no error of law of a legal judicial officer in making such a decision.
McHUGH J: Ordinarily, an error of law in the sense that Mr Justice Glass used it will have, either in the subject or predicate of a proposition, a legal term. But questions of reasonableness of evidence, which is really a question of fact, have historically been regarded as questions of law but I do not know if there is any absolute test. I have been thinking about it for nearly 40 years and I have never been able to solve the question.
GLEESON CJ: You have only got to look at the formula on page 442 of McCabe where the sentence talks of:
unreasonableness in the sense of perverseness, arbitrariness, capriciousness and the like –
Now, that is a nice open‑ended concept.
MR BASTEN: Yes. Might I say two things. Firstly, in relation to your Honour Justice Kirby’s example, I do not wish to be critical but it may be a difficult one because one may find a different basis, namely the Racial Discrimination Act, for setting aside a decision based on that sort of ‑ ‑ ‑
KIRBY J: No, no, that is taking it off into another realm.
MR BASTEN: That is so.
KIRBY J: I am confining it to this realm.
MR BASTEN: Well, I was wishing to make that distinction. It might be invalid for a different reason but, in this area ‑ ‑ ‑
KIRBY J: Well, say it is religion: “I did not like his religion”. Now, there is nothing in the discrimination law that would protect that.
MR BASTEN: Yes.
KIRBY J: “He was Islamic. I just do not believe Moslem people.”
MR BASTEN: Yes. Well, I would not comment on whether that – but, assuming it does not fall within the Racial Discrimination Act, then one is confronted with the question as to whether one can formulate a principle. The two principles which we rely upon, or the two propositions we rely upon, are firstly: that the perversity, as it were, must affect the ultimate decision and, secondly, that the ground of Wednesbury unreasonableness finds its justification in the concept of ultra vires, so that the touchstone, I suppose, is that one goes back to see whether there has been a real bona fide attempt to exercise the power vested in the decision maker by the Parliament.
GLEESON CJ: Yes, if somebody said, “I just do not believe these people of a certain religion”, that would not be an error of law.
MR BASTEN: No.
GLEESON CJ: That would be a lack of a conscientious attempt to exercise the jurisdiction.
MR BASTEN: That is so. Yes. But whether one can find a better formula than I have suggested, I am not sure. I certainly do not think I could have usefully attempt it.
McHUGH J: But if a judge or jury says, “I accept the evidence of this notorious criminal that such and such a person was at a certain place and committed a crime and I reject the evidence of seven archbishops who said that he was with them at the relevant time”, no one will ever convince me that there is any error of law involved in that.
MR BASTEN: Yes.
McHUGH J: It is just a straight out perverse finding of fact.
MR BASTEN: Yes, yes. With respect, we would accept that proposition.
KIRBY J: But if the decision maker who is bound to - gives reasons and says, “Because they were all Protestant archbishops and I do not believe Protestants.”
MR BASTEN: Yes.
KIRBY J: Now, that is a completely perverse finding of fact.
MR BASTEN: But the difficulty, your Honour, is to ‑ ‑ ‑
McHUGH J: Well, depends which country and at what era you say it.
KIRBY J: The Chief Justice seemed to have - - -
MR BASTEN: Again, I will not comment on the specifics of your Honour’s question but the ‑ ‑ ‑
GLEESON CJ: That would reveal prejudice. That would be a manifestation of bias.
MR BASTEN: Bias.
GLEESON CJ: You do not have to pretend that things that do not look like errors of law are errors of law to knock them down.
MR BASTEN: No.
GLEESON CJ: There are numerous other grounds on which they can be defeated.
MR BASTEN: That is so.
KIRBY J: But as I tried to explain in Azzopardi, and I may be wrong on this point, but once you introduce a system of people sitting alone, deciding cases and giving reasons, it is not within their province to decide matters irrationally, perversely, arbitrarily and, if they do, you can say they step outside their functions, and that is your first point, or you can say they manifest an error of law because it is an error of law for a law officer performing law duties to perform them in an irrational, arbitrary or perverse manner.
MR BASTEN: Well, the question may ultimately be, firstly, whether in talking of a law officer one is really eliding a distinction between an administrative decision maker and a judge, and I did not refer to Abalos deliberately because there are difficulties in relying upon cases which deal with appeals from judges, as opposed to judicial review. It is a matter which Justice Mason refers to the in the Peko-Wallsend judgment, and his Honour draws something of an analogy, and there is a danger in that analogy, in my respectful submission. I do not disagree with anything that his Honour specifically says.
The second point, though, is that one aspect of the operation of a particular law is that Parliament has reposed in a particular administrative decision maker a power to make findings of fact, and if that person makes wrong findings for any reason which do not come within the reviewable bases set out in the statute, then he or she is entitled to do it. And one is really left with that ultimate proposition, in my respectful submission.
GLEESON CJ: There may be a grey area between doing a job badly and not making a bona fide attempt to do it at all.
MR BASTEN: Yes.
GLEESON CJ: But the existence of twilight does not deny the distinction between night and day.
MR BASTEN: The principle is still relatively clear if its operation is not always easy. I would accept that, your Honour.
May I then turn to the other aspect of the legal analysis set out by Justice Davies in his judgment, and I will seek to do this in a relatively truncated way. His Honour undoubtedly treats in the opening statement in his judgment the proposition that section 476(1)(e) must be expanded to include contravention of an obligation imposed by section 420 as relevant to the approach that he takes to the case.
GUMMOW J: Yes, this is really why you got special leave.
MR BASTEN: I think that may be right, your Honour, although your Honour put a question to me two minutes into my address which suggested otherwise. I will not take your Honours through section 420 in any detail because it has been adverted to in the previous case, and your Honours have already commented on its terms. What we say, in substance, is that this is not a provision, and in particular section 420(2)(b) is not a provision which imposes upon the Tribunal any specific obligation in relation to a particular case.
And may I adopt, without reading them in detail, the comments made by Justice Lindgren in Sun Zhan Qui, an unreported decision which we provided copies of, of 6 May 1997. It is a lengthy judgment and I can go to the relevant passages. The history of Sun’s Case I may need to come back to, but at pages 17 to 40 his Honour sets out the provisions of the statute and the case law as at that time, and at page 40 and following his Honour expresses his own views in relation, firstly, to the operation of section 420 in a procedural sense but his Honour’s comments are applicable in relation to the substantive operation of subsection (2)(b), and what his Honour says in the middle of page 40 is that:
A requirement that the RRT pursue an objective of providing a mechanism of review -
a phrase that was emphasised yesterday or the day before -
satisfying such a general description is not, in my respectful opinion, a requirement that it observe a procedure in connection with the making of a particular decision, with which para 476(1)(a) is concerned.
First he says, in the next paragraph:
the objectives referred to in sub-s 420(1) will often be inconsistent as between themselves.
And his Honour explains that. On the next page, he says that:
The second consideration is derived from the nature of non‑observance of a supposed “procedure” laid down in sub s 420(1). Non-observance would be, for example, a “failure to pursue the objective for providing a mechanism of review that is fair” The nature of the complaint made in a particular case might make relevant evidence of the RRT’s staff and financial resources and its internal organisation and practices. A mere conclusion that a mechanism of review in its operation in a particular case did not satisfy one or more of the epithets in sub-s 420(1) –
The third consideration –
his Honour says at the bottom of the page goes to the terms of the paragraph.
is founded on para 476(2)(a) the terms of which were set out earlier.
It will be recalled that that paragraph provides that a breach of the rules of natural justice is not grounds upon which an application may be made under sub-s 476(1). If sub-s 420(1) requires observance of a “procedure” for the purpose of para 476(1)(a), in so far as it refers to a “fair” and “just” mechanism of review, it must refer to “procedural fairness” –
But that is expressly excluded.
This suggests that the legislature did not intend the “procedures” of para 476(1)(a) to embrace the standards which sub-s 420(1) requires the RT to pursue.
And then, at the bottom of the page, his Honour analyses the terminology and at about point 8:
suggests that the legislature turned its mind to the twin requirements of natural justice and intended that para 476(1)(f) and para 425(1)(a) should occupy the field…..It will be clear that I do not agree that the expression in para 476(2)(a), “the rules of natural justice”, is to be read down in some way so that it refers to those rules only in so far as they depend on the general law –
That is a reference to earlier authority. And his fourth consideration relies upon the question of the expressed intention that the regime be:
of limited grounds –
which provide certainty and interpretation suggested based upon section 420 would be:
discordant with that intention.
His Honour then goes to the question of reviewing the fact-finding process and its operation in this context, at the bottom of page 77 and refers to Chan’s Case and, in particular, I will not take your Honours through that but he also refers at page 80 to a passage in McPhee v S Bennett Ltd in which Chief Justice Jordan outlined the correct approach; a passage cited with approval in Bond’s Case. And then page 82 to 83 – again I need not read the material - his Honour refers to the well-known principles in Avon Downs and notes at the last five lines of the long paragraph in the middle of page 83:
In fact, Justice Dixon emphasised that it was for the Commissioner, not the court, to determine the facts. The present case is perhaps stronger in this respect than Avon Downs, because para 476(1)(e) expressly takes as its starting point “the facts as found”.
That, of course, is the proposition I was seeking to make earlier in relation to that provision.
His Honour then refers to McCabe and says that it has no application, and I need not trouble your Honours and further with that material. The particular discussion in these latter pages is addressed to the operation of section 476(1)(e), which is, of course, is the matter in issue in this case.
So that our conclusion, consistently with what his Honour says, is that the exhortation to provide a mechanism, which has the qualities referred to in section 420(1), and to act “according to substantial justice and the merits of the case” in section 422, is, as we say in the written submissions, no more than that, and it should not be seen as importing some basis upon which the decision may be reviewed for failure to grant substantial justice in the merits, if that involves a ground which, on its face, would appear to be inconsistent with the distinction drawn in administrative law cases before the enactment of that provision.
GLEESON CJ: If you are wrong about that, it is difficult to see where you can draw the line short of a full merits review.
MR BASTEN: That is so. We would say that that is, indeed, so, your Honour, that some of the cases illustrate the failure to draw that line perhaps triggered by a reliance upon that provision. In fact, it may, as it were, have had precisely the operation that your Honour is suggesting and this may, indeed, be one of the cases.
KIRBY J: I am not saying this in any way critically of Justice Lindgren because I am sure there are lots of material in his reasons which will be very helpful in this Court, but it is a very long decision and I notice it took six or seven months to – no, longer, 10 months – to deliver it, and this may be the sort of problem which is causing such an exquisite attention to these matters that really goes beyond what is reasonable.
MR BASTEN: Well, yes, that may ‑ ‑ ‑
KIRBY J: Is this a typical decision in the Federal Court on the – typical length of decision, I mean. I am not in any way criticising the content of his Honour’s reasons because ‑ ‑ ‑
MR BASTEN: No, it is not, your Honour.
KIRBY J: - - - he may well have been obliged to meet all the arguments.
MR BASTEN: That is so, and it was a case in which there had been a multiplicity of arguments of varying degrees of merit and his Honour thought it necessary to set out both the arguments and why he rejected them in some detail.
GUMMOW J: One of the problems is, counsel turns up with section 5 of the AD(JR) Act in these cases, with every paragraph, and unless the judge deals with it, they go off to the Full Court and complain about it, at length, and it puts trial judges in an impossible position.
MR BASTEN: Your Honour says “unless”. I have to say that in this case, precisely that happened and the Full Court agreed with the appellant. His Honour’s decision was, despite the clarity of the reasoning, perhaps, was set aside by the Full Court in a decision reported in 151 ALR 505. Might I take your Honours to only two pages in that judgment? At page 548, in relation to this question, in the judgment of Justice Wilcox at line 7, on page 548, after referring to various factual matters – only, incidentally, going to the issues – his Honour says in a passage which begins on left hand ‑ ‑ ‑
McHUGH J: Which page is it?
MR BASTEN: Page 548, your Honour, line 7 or 8:
In my opinion these omissions rendered her decision manifestly unreasonable, within the –
Wednesbury –
principle….. It is now established that a failure…..to obtain important information –
well, that was the passage we went to yesterday. His Honour then refers to Prasad – that goes to that issue and continues at line 18:
Because of the exclusion effected by s 476(2)(b) of the Migration Act, the decision is not judicially-reviewable on the ground of manifest unreasonableness, but Eshetu establishes this circumstance does not exclude the application to it of any ground listed in s 476(1). It seems to me that, if the tribunal’s treatment of the issues is so unreasonable that it must be said the decision could not have been made by a reasonable person, there has not been “substantial justice”.
GLEESON CJ: Well, it is difficult to argue with that, but the question is whether it follows from that that you can make a complaint to the Federal Court that the Tribunal’s decision did not involve the administration of substantial justice?
MR BASTEN: Yes, and that, his Honour held, could be made. That was the understanding, as I understand it, of Eshetu, namely, that that now falls within the error of law within 476(1)(e). His Honour then goes on to talk about misleading conduct in the course of the inquiry is also indicating a failure to accord substantial justice and at page 459 in the middle of the page, his Honour calls in aid the passage from Justice – the well-known passage at 162 CLR 40 in Justice Mason’s judgment in Peko-Wallsend and says:
In the present case there are at least two important facts to which –
the Tribunal –
gave no weight…..Even considered cumulatively, these facts did not conclusively prove Mr Sun’s claim…..but they strongly supported it. If she had found facts inconsistent with that claim, Ms Smidt would have been entitled to refuse to draw the inference these facts would suggest, but substantial justice would still have required she take them into account.
We do not accept that analysis because it, we would respectfully say, confuses a factor in a Peko-Wallsend sense, which I went to yesterday, with primary facts.
At the bottom of the page, just in answer to your Honour the Chief Justice:
In a number of respects Ms Smidt failed to comply with the requirement of s 420(2) that the tribunal “act according to substantial justice and the merits of the case”. Applying Eshetu, I hold this means that procedures required by the Act were not observed in connection with the making of the decision. It follows the decision must be set aside.
So the approach which has now been adopted is, with respect, clear. The result was that Justice Lindgren’s lengthy analysis was set aside.
GLEESON CJ: Was there an appeal against that decision?
MR BASTEN: No, your Honour. This application for special leave had been made prior to that decision being handed down and, indeed, Justice Wilcox, I think, in the next page, notes that the case is before this Court. It was not thought appropriate to seek to bring another case in relation to the same principle.
KIRBY J: And that is why he goes on to deal with other grounds.
MR BASTEN: That is why he deals with it on another basis.
KIRBY J: Some of which were, I think, unanimously upheld.
MR BASTEN: I am not sure - I think there was a difference of approach between all three members of the court, your Honour. I do not wish to disagree. Your Honour may be right but, certainly, Justice North and Justice Burchett, in slightly different approaches, found that unacknowledged bias could ‑ ‑ ‑
KIRBY J: I was just referring to the passage at 565 where Justice North says he agrees with Justices Wilcox and Burchett for the reasons they give that the Tribunal fell into error of law on the 476(1)(e).
MR BASTEN: Yes.
KIRBY J: He would allow the appeal on that ground so there were some common grounds on which decision was made.
MR BASTEN: Yes. Justice North, I think, decided there was actual bias even if it was unacknowledged, so did Justice Burchett. Your Honours, I think those are the submissions in relation to the appeal.
GLEESON CJ: Thank you, Mr Basten. Yes, Mr Game.
MR GAME: If the Court pleases. Before I turn to the various principles of law which require to be addressed in this case, if I could take the Court to the Tribunal’s reasons. I should say, if the Court pleases, that we support in every respect the approach taken by Justice Davies, particularly with the passage which commences at page 382, starting at line 25:
The question for the Tribunal was not whether 25 students, including 11 members ‑ ‑ ‑
GUMMOW J: The case is reported, by the way, in 71 FCR 300.
MR GAME: Yes, I have the Federal Court Report. My friend has been referring to the appeal book, so I will stay with the appeal book if that is convenient:
The question for the Tribunal was not whether 25 students including 11 members of the Student council had all been arrested on 5 December 1991 and had all been beaten and tortured for three days. The question for the Tribunal was whether Mr Eshetu had left Ethiopia because of fear of persecution for his political opinions, whether he feared to return to Ethiopia for that reason and whether those fears were well-founded. Neither in the Tribunal’s questioning of Mr Eshetu during the hearing –
and that is a procedural matter:
nor in the Tribunal’s lengthy reasons for decision did the Tribunal seriously enter into the question as to why Mr Eshetu had left Ethiopia, whether he had in fact been a student member of the University, whether he had suffered an injury to his foot and if so in what circumstances and whether he had gone into hiding, and if so why –
now, I will not read the cases to the Court, but ‑ ‑ ‑
GUMMOW J: Why did Justice Davies find Justice Hill had gone wrong?
MR GAME: He commenced by disagreeing with his Honour’s approach in relation to section 420 and 476(1)(e).
GUMMOW J: That is what I thought, yes.
MR GAME: But then he identified an error of law ‑ ‑ ‑
GUMMOW J: Now, Justice Hill’s position in this controversy is what, with Justice Lindgren, is it not, on these construction questions?
MR GAME: Yes, your Honour. Justice Davies’ judgment ultimately did not turn upon ‑ ‑ ‑
GUMMOW J: I am just trying to find out why the primary judge has reversed.
MR GAME: Well, the primary judge was reversed because the primary judge ‑ ‑ ‑
GUMMOW J: You keep treating the primary judge as if he is the Tribunal. The primary judge is not the Tribunal. The primary judge is Justice Hill.
MR GAME: The primary judge failed to find error of law in the approach taken to the Convention question. The Full Court found error of law in relation to the approach to the Convention question. The error of law that was identified by the Full Court was a misconstruction of the Convention definition, a failure to address itself to the question that was truly raised by both the case and the Convention. That is the error of law identified by the Full Court, and it is entirely consistent, in our submission, with the decisions of Wu and Chan, in particular your Honour Justice Gaudron’s judgment in Chan and your Honour Justice McHugh’s judgment in Chan, as to how one approaches the question of subjective fear and the question of well‑founded.
This case ultimately comes down to how the Tribunal determined that the – I say this case, this case in respect of the question of the appeal principally, but the Wednesbury application as well – comes down to the question of how one approaches the issue of whether or not a fear that is genuinely held is well‑founded. That is the question. And the question is whether or not the Tribunal proceeded in an erroneous way, erroneous in law. We say that to do so is an incorrect interpretation of the applicable law.
The interpretation of the applicable law picks up how one goes about approaching a convention question. It also picks up how one addresses oneself as to questions of fact. The applicable law is all of the law. The distinction is between law and fact. In order to answer the question what is fact and what is law one has to ask oneself what is a fact and what is law and the distinction we draw between fact and law ultimately is facts are things that you believe, law is the actions you take, the direction you take, in relation to whether or not you determine facts in a particular way. So, for example, in this case the controversy over whether or not to have regard to the Community Aid Abroad material was an argument of law. It was not an argument of fact. The distinction, in our submission, is a clear one, and that attempts to, in effect, give deference to findings of fact is to ignore the distinction which is, in truth, a clear distinction.
Now, if I could take the Court, as I said, directly to the Tribunal’s reasons, because we give a very different reading to the Tribunal’s reasons than was given by our friends. At page 313 the Tribunal said, at line 15:
I accept that Mr Eshetu has a strong subjective fear –
Now, it is significant that she says he has a strong subjective fear, it is not merely a fear, but a strong subjective fear; it is a present fear, “has a strong subjective fear”. It does not address itself to why he left Ethiopia. It does not address itself, as Justice Davies said, as to when that fear emerged, nor does it address itself to the fear which he put to the Court was the source of his fear. He did not say that he was afraid because he was a member of the Ethiopian Association of Australia, which was the passage referred to on the previous page:
based on his conviction that the current government of Ethiopia is conducting a repressive campaign against its opponents in general and Amharas in particular.
As I said, that was not the way in which he put his case. Now ‑ ‑ ‑
GUMMOW J: Justice Burchett focussed on the repetition throughout the reasons of the Tribunal of the word “remote”. Do you place any point on that?
MR GAME: I do to an extent, your Honour, but I would not put it at the centrepiece of these submissions.
GUMMOW J: Well then ‑ ‑ ‑
MR GAME: But the question – sorry.
GUMMOW J: What is there left in Justice Burchett’s judgment?
MR GAME: Well, your Honour, his Honour – first of all there is the analysis of section 420 and 476, which we adopt.
GUMMOW J: Yes, apart from that?
MR GAME: And the reasoning behind it.
GUMMOW J: Yes, but on this error of law as to the convention and expression?
MR GAME: Well, his Honour has, in substance, accepted the reasons of Justice Davies.
GUMMOW J: Yes.
MR GAME: The remote question is not to be put entirely out of account, your Honour, because what we say is that – what I am going to submit, shortly ‑ ‑ ‑
GUMMOW J: You are here to defend the Full Court judgment.
MR GAME: Yes. That is true, but ‑ ‑ ‑
GUMMOW J: You will not do that by treating yourself as on an appeal from the Tribunal.
MR GAME: No, but, your Honour, I am seeking to show – and I am just in the very commencement of it – of showing what, in a sense, is the substance of the error, why Justice Davies was correct in the approach that he took. I am seeking to ‑ ‑ ‑
GUMMOW J: Well, where is the crucial passage in Justice Davies’ reasons?
MR GAME: It starts at 382 and then ‑ ‑ ‑
GUMMOW J: There are a number of factual matters.
MR GAME: Yes, but what is the question – ie, approaching the question then:
necessary to focus on the applicant’s story –
That is at 383, line 22. Then on 383, lines 40 to 50:
It seems to me that by failing to identify when Mr Eshetu's “strong subjective fear” developed and by failing to make findings as to whether that fear developed whilst Mr Eshetu was in Ethiopia ‑ ‑ ‑
GUMMOW J: Well, that all seems to be about facts.
MR GAME: Well, it is about addressing the convention question but, your Honour, there is a – if I could just finish ‑ ‑ ‑
GUMMOW J: But what I am trying to find is there anywhere in Justice Davies’ judgment where he reverses Justice Hill on the footing that the Tribunal misconstrued the checks to the convention requirement. I understand what Justice Burchett says about that, he fixes on the repeated use of the word “remote” which he says is not sufficient to determine the question of well founded, but does Justice Davies deal with this on anything other than the factual basis? He may have been quite right to do so, but it is all about facts.
MR GAME: Well, no, your Honour, because the citation from Guo ‑ ‑ ‑
GUMMOW J: But I just cannot find a passage, that is all ‑ ‑ ‑
MR GAME: Well, it is really at 383 to 385, your Honour.
GAUDRON J: Well, does he not identify the error as the failure to address the question or to address it in an appropriate way, well founded?
MR GAME: Yes, your Honour.
GAUDRON J: That is what he identifies as the real error although it does not seem to follow directly from what appears at 385. You say you have to see the whole series.
MR GAME: Could I start with this proposition ‑ ‑ ‑
GUMMOW J: There seemed to be a jump to the penultimate paragraphs of the judgment, that is all. “It followed that the Tribunal’s decision involved an error of law”. Failure to do so discloses an error of approach due to a misunderstanding of the meaning and operation of the term. What I cannot find is what was the misunderstanding of the meaning of the term.
MR GAME: Your Honour, can I say this. To determine whether or not a fear is well founded, you have to start with the subjective fear. There may be some cases in which you do not seek to do so but in principle you have to start with the subjective fear. As this Court has said in cases such as Chan and Guo and Wu, to speak in terms of real chance – in Guo said to speak in terms of real chance may itself introduce error. The question that the Convention says is well‑founded fear. You start with the subjective fear.
Your Honour Justice McHugh said in Chan, I think, that 10 per cent might be well founded in particular circumstances. But the critical thing is this, that you cannot determine whether or not a fear is well founded without identifying what the nature and strength of the subjective fear is, because the likelihood of an event occurring as founding a fear as being well founded may vary according to what the content of the subjective fear is. In this case this person’s whole story was that he feared going back there because he was a student leader. That is the question that the Tribunal did not address. One will not find a word in this decision about whether or not this person feared persecution from going back to Ethiopia by reason of the fact that he was a student leader.
To take an example in relation to subjective fear, if you have, for example, let us say a victim of Pol Pot and you say to this person – and they came here because they had been in a death camp and they say, “Well, look, I don’t want to go back there. I think it’s really terrible”, and you say, “Well, look, actually it’s okay to go back there now”, and they say, “Well, yes, but I can’t really assure you. There’s a very slight chance”. A normative judgment about whether or not that fear in that case was well founded might be quite different in terms of the probabilities of an event occurring than a case where a person fears discrimination in employment in some other circumstances. Logically speaking, you cannot proceed from one to the other without that exercise. That first exercise was not done in this case but there is a further central problem to this and it can be demonstrated by looking at what the Tribunal did at page 316.
HAYNE J: Can I interrupt you, Mr Game, and just take you back to make sure I understand the path you are taking. As I understand it, you say that the error of law was to fail to address the particular fear that this man had, a fear of return because he was a student leader?
MR GAME: Yes, your Honour.
HAYNE J: Do I capture the argument?
MR GAME: Yes, your Honour.
HAYNE J: Is not 90 per cent of the reasons of the Tribunal directed to what happened to student leaders or did not happen to student leaders?
MR GAME: Well no, your Honour, I do not agree with that analysis of the reasons. In fact there is not even a finding that he was a student leader or even that he was a student. That question is not addressed.
GAUDRON J: Well, the fear is not found in terms of his being a student leader at page 313. It is because of:
a repressive campaign against its opponents in general and Amharas in particular.
Page 313, line 15.
MR GAME: Yes. The findings about whether or not particular people are likely to suffer persecution is still within the context of prominent opponents and those who are known to be violent in the Tribunal’s reasons, for the reason that the Tribunal has misapprehended what was advanced – or it failed to address altogether. There is not a word in this decision about what he was actually advancing in that context, other than a rejection of the incident of December 1991. It is how you proceed in respect of the rejection of that incident to this question of well-founded, that goes to the substance of the error that we submit is identified. Now, if one goes to the bottom of page 316:
I do not accept ‑ ‑ ‑
GUMMOW J: Are you saying that the judgment does not set out - the reasons of the Tribunal do not set out findings on all material questions of fact?
MR GAME: Well, your Honour, this is not put forward as a section 430 case, but we say that the Tribunal has not addressed itself to the appropriate question and, in so far as it has, it has demonstrated that it has, in effect, misunderstood how the test is to be applied. There is a substantial element of illogicality in the proposition, but we do not resile from the proposition that that illogicality demonstrates an error of law, and at an appropriate time I will come back to the question of how an illogicality can amount to an error of law but, in any case, we would say that that is a proposition that founds the prerogative relief on the basis of ‑ ‑ ‑
GUMMOW J: Because that would be section 476(1)(a), would it not? Failure to observe section 430, is what is being dealt with ‑ ‑ ‑
MR GAME: It would be, your Honour; it is a failure to observe section 430. Now, if I could proceed with the reasons at page 317. We see a paragraph at lines 13 to 18:
While I acknowledge that not all detentions or other human rights abuses will be mentioned in human rights reports or other published materials, for the reasons set out below, I consider that the detention and torture of 25 students, including all but one of the members of the Student Council in Addis Ababa in December 1991 would have been known to at least some of those monitoring the human rights situation and would have been reported in publications produced by these organisations.
Just pausing there, it is relevant to the Wednesbury Case that the Tribunal did not refer to the material from Amnesty, which made it plain that there was every reason why such incidence might not be reported, and that is a matter that Justice Davies referred to, nor did it give any weight to Mr Wolfemariam’s observations that, in fact, it was quite possible that it would not be reported and that students had been killed and that there had been a student march planned.
GLEESON CJ: But that is a finding about the probabilities, is it not?
MR GAME: Well, your Honour, that then raises the question of Wednesbury unreasonableness, which I will return to. At the moment I am seeking to make a more fundamental challenge to this decision. Now, in this process, the Tribunal has not sought to eliminate the possibilities, ie the possibilities of it not being reported, nor has it addressed the question of credit. In our submission, having regard to those two factors, one can read this passage as meaning no more than that it is likely that it would have been observed, and it is likely that it would have been reported. To do so is to give that passage more weight than it could sustain, having regard to the way in which the Tribunal addressed the question.
Now, as I said, it is significant, in terms of how the Tribunal approached this question, that it did not approach his account, nor did it approach - in terms of its own internal consistency - the question of excluding the possibilities. Now, the most that one can draw from this, because the whole case is dismissed on the basis of this passage ‑ ‑ ‑
GUMMOW J: There is no case; it is not dismissed.
MR GAME: I am sorry?
GUMMOW J: It is not in the court.
MR GAME: The application for refugee status is refused on the basis of this particular passage. Now the most one can draw from that passage, in terms of what one – we still have the question whether or not this strong subjective fear is well founded. All one can draw from this is there is a likelihood that he is not telling the truth about this incident.
Because of the proposition I have put before that the likelihood of an incident, in effect, being inextricably wound up with the nature of the subjective fear, it is impossible to draw from a proposition that he is not likely to be telling the truth about the incident the proposition that he does not have a well‑founded fear of persecution.
GLEESON CJ: No, the fact that somebody is telling lies can never prove that they do not have a well‑founded fear of something, but what it can do is add to their difficulty in persuading or satisfying somebody that they do have such a well‑founded fear when the person is being invited to rely upon their word for it.
MR GAME: But, your Honour, that comes back to the question of whether or not there is any onus on the applicant.
GLEESON CJ: It is not a question of onus at all. It is a question of satisfaction. Onus of proof might be important if there is an absence of evidence or if evidence is evenly balanced, but you do not have to speak in terms of onus to recognise the significance of the concept of satisfaction in section 65, do you?
MR GAME: You do not have to speak in terms of onus, no, but the Tribunal had to reach a determination as to whether or not it was satisfied if it could upon the material. It had to assist the account given. Now, the account given has ‑ ‑ ‑
GLEESON CJ: And it was relevant to its assessment of the account given that it took the view that a person was telling lies about something.
MR GAME: But the Tribunal never said, “I take the view that he is telling lies for any demeanour reason”. The only reason that could be advanced for him telling lies is the fact that the incident was not reported. That is the problem with the reasoning of the Tribunal.
GLEESON CJ: But whether or not something constitutes an adequate reason for disbelieving the evidence of a person is usually a question of fact, is it not?
MR GAME: Whether something can constitute an adequate reason ‑ ‑ ‑
GLEESON CJ: For disbelieving the evidence of a person.
MR GAME: Yes.
GLEESON CJ: It is usually a question of fact.
MR GAME: In substance, yes.
GLEESON CJ: The proposition, “I don’t accept that this incident occurred because I think that if it had occurred it would have been widely reported and it wasn’t widely reported” might be an erroneous proposition but it is a proposition of fact, is it not?
MR GAME: Well, it involves a question of fact but it also involves a question of law which is how one directs oneself to the question at hand, namely, determining whether or not the person has a well‑founded fear. As Justice Davies said – could I give an example to your Honour. If a person said - there are circumstances in which one can determine – perhaps if I could put it this way. There are circumstances in which one can determine whether or not an event has occurred by reference to the external probabilities. But you can only determine whether or not an event has occurred by reference to the external probabilities if there is something specific about it which enables you to sheet that home to the particular individual. That is a proposition which was – I am pretty well quoting from Chief Justice Dixon in Briginshaw v Briginshaw.
So, for example, if you allege that a person was drunk and driving and the only evidence you have is that - that a person was unfit to drive or was driving in a manner dangerous - was that they had a blood alcohol content of .11, you cannot draw from the probabilities that people are unable to drive in a particular way any inference in relation to the individual concerned because you have not sheeted it home to the individual. But there are examples of cases where you can draw inferences from external probabilities but that is because – if, for example, you said, “I don’t want to go back to Texas because my brother was executed in Texas last year in the Houston Penitentiary”. And you can determine the credibility of that by reference to the external probabilities because you can make a judgment about that.
As Justice Davies said, this is a very different sort of a case but moreover the ultimate question is whether or not you have a well‑founded fear. Well, if you are going to draw that inference, then you would have to make an assessment about the probabilities of it not being reported and then you would have to make an assessment about the relationship between that and the person’s claimed basis for their strong subjective fear. And then you would have to draw a conclusion based on those two matters as to whether or not the fear was well founded. If you did not do each of those steps, you would not have made an error of fact, you would have made an error of law in relation to the way in which you approached, in effect, addressing yourself on the question of fact.
McHUGH J: That assumes two things. First of all, that there is a specific process which must be followed in particular context including this case. That seems to me to be a debatable proposition and, secondly, if it is correct, what it would do would show that the Tribunal had failed to take into account something that it should have taken into account, and that is not a ground of review under 476, is it?
MR GAME: The proposition is not that the Tribunal failed to take into account something that it should have taken into account. The proposition is that the Tribunal directed itself in a way which was, in effect - which did not address itself in substance to the question of well founded and that is a different – that proposition is not founded on not taking regard to any particular consideration. It assumes that the question of credibility has not been addressed. It assumes that external probabilities have not been addressed because that is what appears from the Tribunal’s reasons.
McHUGH J: But the only relevance any of this sort of reasoning can have is that it indicates that the Tribunal did not address the right question. Is that not so?
MR GAME: That is correct.
McHUGH J: Well, it is a large proposition to say that the Tribunal did not understand the question because it did not pursue the course which you say was more logical than another course, or the course that it took.
GLEESON CJ: It does not get you anywhere to say the cogency of the reasoning of the Tribunal on this issue of fact is diminished by its failure to deal with particular arguments tending in the other direction. That is just a proposition of fact and it seems very close to the proposition Justice Davies was putting at the bottom of page 383 where he says, “the Tribunal failed to deal with crucial issues”, which is a little like saying, “I find the Tribunal’s reasoning unpersuasive because it did not address some matters that I would have regarded as important if I had been making the finding of fact in question”.
MR GAME: No, your Honour, that depends on what one decides is the legal framework within which one must address the convention question. Now, the legal framework is broader than simply saying, “This is the convention, these are the principles, I have applied them”, and then proceeding in whatever manner, rational or irrational. That is not to satisfy ‑ there must be more in the legal content ‑ ‑ ‑
McHUGH J: But there is no legal framework. The only legal framework is the ultimate question and the most that you can do is to point to what the Tribunal has done or failed to do as indicating that the Tribunal did not understand the ultimate question it had to decide. But, it does not seem to me to assist and, indeed, I think it is misleading, to say that there was a legal framework in which the Tribunal had to decide that question.
MR GAME: Well, your Honour, the Tribunal has to ask itself ‑ ‑ ‑
McHUGH J: Was there a well-founded fear of persecution?
MR GAME: Yes, that is his ‑ ‑ ‑
McHUGH J: And did it understand what that meant? You can point to what it did or failed to do as showing it did not understand it, but I do not see how you can say that there is a legal framework within which it had to act, as throwing any light on that question, or as deriving from that ultimate issue.
MR GAME: To ‑ ‑ ‑
McHUGH J: I am sorry to interrupt you, but rightly or wrongly, Justice Davies relies on these various matters as indicating that the Tribunal did not understand the issue, but, as I think Justice Gummow pointed out earlier, how he gets there is not clear when he makes a leap.
MR GAME: Your Honour, I think that what Justice Davies was doing was, if one goes back to that, there is the passage in which he refers to Guo, page 383, lines 30 to 35:
“In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding the he was not ‘differentially at risk for a Convention reason’. Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted –
Now, what one draws from that is that if one proceeds, as in this case one does proceed, from no reference to the terms of the Convention, other than to say well founded at the end, without any comment about the relationship between the Convention definition and what the Tribunal has found in this case, without any addressing of credibility, and without any addressing of, as I said, the external probabilities, with the reference thrown in from place to place, this will not happen or would not happen, this is remote, that is remote, piece by piece, if one proceeds from the point that all one has is that an incident is not likely to have occurred to the final conclusion, then there must have been a misunderstanding of what that proposition required.
Now, one can call that illogical or whatever but that is not a question of fact, it is a question of what is meant – what one is drawing irresistibly is the conclusion that – and there is no ellipsis, in our submission - irresistibly that the Tribunal must have failed to understand what that test required. It must have failed to ‑ ‑ ‑
McHUGH J: Well, I do not know why that follows. Take another field of endeavour. Take negligence; take this Court’s decision in Romeo. I thought that there was a case of negligence to be considered by the judge. The rest of the Court thought not. I hope they do not think that because they disagree with me I do not understand the question to be decided on what negligence constitutes.
MR GAME: This is not a question of disagreement. This is a question – there are either two alternatives. One is she misunderstood it or the other is that she proceeded illogically to something that she did understand. If she did understand it, then she proceeded illogically. If she did not – they are two alternatives and, in our submission, both of them demonstrate an error of law. Now, I will come early this afternoon to the question of what is the content of an error of law, having regard to the decisions which my friend has already referred to and a couple of other cases, but just on this question of ‑ ‑ ‑
GUMMOW J: Now, there has been enormous amount of academic comment on Bond, has there not?
MR GAME: Yes, your Honour.
GUMMOW J: Are we going to be let into the secret of any of it?
MR GAME: Well, there is a lengthy discussion in the latest edition, in the most recent book of Aronson and Dyer which is probably the most detailed examination of Bond.
GUMMOW J: Of the Aronson book, yes. Well, we have got access to that. I have the impression there is an article by Dr John Griffith’s in the Federal Law Review somewhere on this about four or five years ago.
MR GAME: I have not seen that article.
GUMMOW J: I think Mr Basten knows of it.
MR GAME: I have not seen that article, I am sorry, your Honour. I might just say before I forget that the passage about which there has been much discussion concerning Pashmforoosh Aronson makes the point which has been made more than once today that the qualification in the context is an irrelevant qualification because there was a decision and it really made no difference to the decision and that passage qualifies in a very real way everything that my friend put, in my submission, about Bond.
If I can come back to this question about the approach taken to the Convention question. In Wu 185 CLR , in the joint judgment at page 281, about the middle of the page:
The chance of persecution is not a fact to be inferred solely from facts that are found to have existed; the very uncertainty of what has happened in other cases is itself material to the assessment of the chance of persecution in the instant case. As a matter of ordinary experience, it is fallacious to assume that the weight accorded to information about past facts or the opinion formed about the probability of a fact having occurred is the sole determinant of the chance of something happening in the future: the possibility that a different weight should have been attributed to pieces of conflicting information or the possibility that the future will not conform to what has previously occurred affects the assessment of the chance of the occurrence of a future event.
Now, that proposition, we would submit, applies a fortiori to what occurred in this particular case. For the Tribunal to have correctly addressed itself to the Convention question, based on what it had found, it would have had to have (a), made a determination that the December incident was crucial to the question of well‑foundedness and then (b), it would have had to have made a determination or, in effect, excluded the possibilities, or (c), made a specific assessment of the account given by reference to an examination of the credibility of the account given by the applicant. The Tribunal did none of those things.
GAUDRON J: I am wondering if a different question does not arise in a case where there has been a finding that there is fear, which is this case, whether it is not necessary to answer the question to then go on and say there is no real chance that there will be any persecution - to say two things: (1) nothing happened to him in the past to justify that fear and there is no real chance that anything will happen to him in the future. Once you have found the fear, it seems to be that may be a different category of case.
MR GAME: I would respectfully adopt that proposition. In a round‑about way I am saying something similar, that is that in order to address yourself to the Convention question, once you have got a finding of a strong subjective fear, you have to do something more; you have to embark on a different inquiry, and that is what is absent in this case. If one goes back to your Honour Justice Gaudron’s own judgment in Chan, one finds, in my submission, in a sense, the genesis of such an approach. In Chan (1989) 169 CLR 379 at 412, if one looks at the whole of page 412 you examine the question of:
Well-Founded Fear of Being Persecuted
Now, starting at the middle of the page:
The words “well-founded fear” do not, as a matter of ordinary language, convey any precise relationship between fear and its factual basis.
And then, proceeding further down the page, there is a reference to:
a reasonable degree of likelihood of persecution.
Then a reference to Cardoza-Fonseca that:
By contrast, in Immigration and Naturalization Service v Cardoza‑Fonseca the United States Supreme Court rejected a construction of the expression “well-founded fear” in its municipal legislation implementing the Protocol which would require the objective circumstances to give rise to a “clear probability” of persecution, without identifying an alternative construction. What was required, it was said in the concurring judgment of Justice Blackmun, was “a particular type of analysis – an examination of the subjective feelings of an applicant for asylum coupled with an inquiry into the objective nature of the articulated reasons for the fear”.
GUMMOW J: Does not her Honour hit the nail on the head on the next page, page 413, in the paragraph beginning, “The humanitarian purpos”?
MR GAME: Yes, but we adopt that; we embrace that paragraph, your Honour, particularly ‑ ‑ ‑
GUMMOW J:
circumstances which will often not permit of the precise ascertainment of the facts as they exist in the country of nationality –
That is the whole problem in these cases; there is a tendency to treat them as if they are trials in a Supreme Court somewhere, evidentiary processes, so on and so forth, with facts that can be tried in an adversarial system. But you cannot work that way.
MR GAME: No, but I accept that, your Honour. We are talking about the fact ‑ ‑ ‑
GUMMOW J: The legal profession bears a lot of the blame for the mess this world has got into, it seems to me.
MR GAME: The legal profession does not get a look‑in on the actual presentation of the case, although they are entitled to make submissions independently of the hearing, but obviously it is in the review context that the law is made in relation to these.
GUMMOW J: Counsel stand here in case after case which we get on these issues and they talk about evidence. It is just material. Rules of evidence do not apply in this body.
MR GAME: No, that is true, your Honour, but one has to inform oneself in a rational and reasonable way as Justice Deane said in Bond. That, in our submission, would be a necessary incident of the exercise of the administrative power. It also, in our submission ‑ ‑ ‑
GUMMOW J: But there are administrative powers and administrative powers. What was going on in the Australian Broadcasting Tribunal and the nature of the issue before them is a world away from the sort of issue that Justice Gaudron is referring to in that passage.
MR GAME: Could I just finish with the passage, your Honour:
Perhaps all that can usefully be said is that a decision‑maker should evaluate the mental and emotional state of the applicant –
And we say that no such examination ‑ ‑ ‑
GAUDRON J: Well, yes there is, because they found that he had a strong subjective fear.
HAYNE J: And found that they did not accept that he faced more than a remote chance of detention or other serious harm.
GAUDRON J: And found that there was nothing in the past – well, said that they were not satisfied that there was anything in the past to give rise to that fear, and thought that as to the future there was only a remote chance of anything happening to him.
MR GAME: That really takes one back to the approach that was taken to those questions and, in our submission, the whole thing turned on how the Tribunal dealt with this one particular incident. It did not turn on anything else.
GLEESON CJ: Mr Game, how are you going in terms of time? How long do you expect to require to complete your argument on both aspects of the matter?
MR GAME: I suppose, at least, probably another hour, I would say, your Honour.
GLEESON CJ: Another hour. And you would need about 15 minutes for reply, Mr Basten?
MR BASTEN: Yes, your Honour.
GLEESON CJ: We will adjourn until 2 o’clock.
AT 12.46 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.01 PM
GLEESON CJ: Yes, Mr Game.
MR GAME: Before lunch I was referring to your Honour Justice Gaudron’s judgment in Chan. If I could just take the Court to a further portion of that judgment. At page 415 in the judgment of 169 CLR, second paragraph:
The definition of “refugee” looks to the mental and emotional state of the applicant as well as to the objective facts. It is a commonplace, encapsulated in the expression “once bitten, twice shy”, that circumstances which are insufficient to engender fear may also be insufficient to allay a fear grounded in past experience. Although the definition requires that there be “well‑founded fear” at the time of determination it would be to ignore the nature of fear and to ignore ordinary human experience to evaluate a fear as well‑founded or otherwise without due regard being had to the applicant’s own past experiences.
If an applicant relies on his past experiences it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well‑founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality –
That is to say the inquiry about the present fear is a different inquiry than the inquiry about the issue of how the well‑founded fear or how the subjective fear arose.
So, in this case, it is no small matter - and this is the point, I think, that Justice Davies was making - when one observes that all the Tribunal is saying is that Mr Eshetu has a strong subjective fear without subjecting to scrutiny what it is that brought that, and when that subjective fear first existed, and why it was that Mr Eshetu left Ethiopia, and whether it was because he was a student counsellor. Those matters, in that context, whether or not the incident of 4 December, in fact, occurred, in fact, loses some of its importance because the inquiry becomes a different – or it may lose some of their importance, depending on the outcome of the inquiry.
Now, if one does not – to say he has a strong subjective fear is to say nothing about the question of having embarked upon the inquiry. Indeed, the changed circumstances point that your Honour Justice Gaudron made, demonstrates that, in our submission, eloquently. What the structure of these reasons shows is this. The structure of the reasons shows that a whole series of his claims was recounted and then the focus came on to 4 December – nothing else, not his membership of the student counsel, not why he left Ethiopia, not any other aspect of what he had to say, not his credibility, not the external probabilities associated with that claim but whether or not the incident was of such a kind and whether or not reporting existed in Ethiopia at that particular time, such that it would have sufficient prominence for it to have been reported. That is the single inquiry upon which the Tribunal embarked.
That, in our submission, is a mile away from addressing the question which is thrown up by the Convention with respect to ascertaining whether or not the fear is well founded. Indeed, when one looks at the reasons a little further one sees, for example, at 318:
According to Mr Eshetu’s own evidence the university students in general and the Student Council in particular were regarded as an important political group in Ethiopia.
But no word about his membership or what might happen to a person who went back who had been a student councillor, and his own statutory declaration and the submissions that were put in made it clear that he was prominent in organising amongst the students.
KIRBY J: Well, forgive me for this, but I do not put it argumentatively but just to understand, the Court has said that one should not go through these reasons in the pernickety way that has tended to be the way of the past. I mean, you have to read that passage on 316 in the context of the entire history of the case and the fact that your client’s case was that he had been a student, a student leader, he had been the subject of these actions and so on, and I just wonder if you are not doing what the Court has said it is forbidden, taking a pernickety approach to a particular passage and not reading it in the context of (a) the fact that this is a Tribunal decision written, as I understand it, sometimes by lay people and (b) that it is to be read in the context of the entire statement of the facts of the case.
MR GAME: Your Honour, well, if I could just – I am sorry to read to your Honour your own decision, but in Wu ‑ ‑ ‑
KIRBY J: Never apologise for reading to me my own decision.
MR GAME: In Wu you said this at 185 CLR at 291, paragraph 4:
Nevertheless, the reasons of a decision-maker will usually provide the only insight into the considerations which were, or were not, taken into account in reaching the design which is impugned. it is therefore legitimate for the person affected, who challenges those reasons, to analyse both their language and structure to derive from them the suggestion that a legally erroneous approach has been adopted or erroneous considerations taken into account or a conclusion reached which is wholly unreasonable in the requisite sense.
KIRBY J: I think you are now taking a pernickety approach to my reasons because the word “nevertheless” was put in there after, I think, a statement that one should not be reading things as though you are reading a will.
MR GAME: But, your Honour, I am not. I am seeking to expose what the fundamental problem with these reasons is and I am seeking to show why the Full Court was right. Now, at the risk of going against the tide in this regard could I refer the Court to a decision of the House of Lords in a case called Bugdaycay. Copies have been provided. It is Bugdaycay (1987) 1 AC 514 at 531. I say “at the risk of going against the tide” because Wu, of course, refers to a not overzealous examination of reasons but, nevertheless, in our submission, what is said there is very pertinent, namely, starting at E to F, in Lord Bridge’s speech:
I approach the question raised by the challenge to the Secretary of State’s decision on the basis of the law stated earlier in this opinion, viz that the resolution of any issue of fact and the exercise of any discretion in relation to an application for asylum as a refugee ie exclusively within the jurisdiction of the Secretary of State subject only to the court’s power of review. The limitations on the scope of that power are well known and need not be restated here. Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual’s right to life and when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny.
Now, Wu, notwithstanding, in our submission, that is an appropriate approach to take to examination of reasons such as these.
Justice Deane in Bond made a comment that was very similar, although it is in a different context, but that if you cannot examine reasons such as these with care and scrutiny it turns the process into a farce. It turns it into a farce because you have an appearance of the exercise of an administrative function which is not subject to scrutiny. To the extent that you do not scrutinise it, decisions are, in effect, rendered valid which may be invalid.
KIRBY J: I take the force of that, but I hope you can understand an initial reaction to Justice Lindgren’s felt need to produce 187 pages over eight months or so. I mean, there is a matter of practicality, given that there are very large numbers of people who potentially, and in fact, claim refugee status. The legal system simply cannot tolerate that kind of burden on the judiciary, and it seems it perhaps explains why Parliament is responding as it does.
MR GAME: Your Honour, I do not know what I can say. The response from the Parliament has been, in effect, what appears to be an attempt at privative clause. The response in a practical sense is the people are no longer legally aided in respect of these cases, so one might say that the response is disproportionate to what is actually occurring. And to be frank, under the AD(JR) system, the system worked perfectly efficiently, and it is only since the privative clause that this – because people have had to try and find remedies in a very complex legal framework.
Just coming back to these reasons. So the university students are seen as an important political group, but there is no finding about his position. Then one sees a finding at 321, this is at line 22, that:
the evidence does not, in my view, indicate that there is a widespread or systematic persecution of government critics or opponents in Addis Ababa such that people who are not prominent members of political organisations or involved with organisations which advocate or are believed to advocate violence, would face more than a remote chance of persecution.
As I say, there is no way that you can determine that question in this case in the abstract. In no way can any observation about external circumstances be sheeted home to the applicant until one knows what the nature and substance, and source and beginning of his strong subjective fear is.
HAYNE J: Does not the Tribunal identify those sources in its statement at page 313 line 15?
MR GAME: That is a comment about the present fear, your Honour.
HAYNE J: Yes.
MR GAME: It is only a comment about a present fear and it is only a comment about a present fear that is (a), not the case put, but (b), does not address in any manner or sense past experiences, and that is what lies at the ‑ people leave countries because they are afraid. For example, to take Tiananmen Square, people say, were you or were you not involved in – were you not brutalised, were you or not a student leader? In many senses, what actually happened may not be critical because a person may have left because they sought to avoid a particular situation. That is why, as I say in one sense, once one finds a strong subjective fear, the significance of the incident of 4 December may fall away to some degree, depending on what you find is the source of the strong subjective fear. So that is how I would respond to that, your Honour.
Then one comes to the – in a sense I have already put this submission though – the Convention does not say anything, of course, about uncorroborated applications; many applications will be uncorroborated. In this instance, as my friend concedes in his own submissions, the Tribunal approached it on the basis that, in effect, she would not accept it unless she found corroboration; she would not accept the claim. We say that, in abstract, that is an erroneous approach to take; it must be an erroneous approach to take to insist on corroboration in that sense.
KIRBY J: Maybe in the technical sense of corroboration, but given that there are people who will claim to be refugees, who may simply be trying to jump the queue to be migrants, and given that it is the responsibility of this Tribunal to determine who are genuine refugees entitled to the benefit of the Convention under our law and those who are not, and given that in those circumstances some will tell lies and exaggerate or distort factors to try to get themselves into the refugee category, why, if that is demonstrated, is it unreasonable for the Tribunal, as a lay tribunal or a non-court, to say, well, this person has been shown to be a liar, of the nature of these decisions it is difficult to get to the true facts, because the places are far away, therefore, unless there is some confirmation of what the person says, I am going to have to determine this on other evidence and material, such as that given by the Department of Foreign Affairs or Amnesty International or some other body.
MR GAME: I am going to have to assess it on the basis of an assessment of what is being put forward.
GLEESON CJ: But it is a routine process of reasoning for a judge sitting alone to say, “Having regard to the damage that’s been done to the credit of that witness, I won’t accept evidence of that witness unless it’s been corroborated”. Now, that is not an enunciation of a principle of law that witnesses require to be corroborated; that is just a recognition of what has happened to the credibility of a particular person.
MR GAME: Exactly, your Honour. That is because there is something implausible about what has been said.
KIRBY J: Not necessarily. It may be entirely plausible but the person may have been caught out in a series of lies such that the judge or the decision maker is entitled to say, “Well, he might be telling the truth”, because reasons for lying vary and people can tell lies because they are embarrassed or they do not want to give this or that information, “but I’m now in such a state that I cannot just accept at face value what the person says and I’m going to need some confirmation”.
McHUGH J: I would perhaps go further and say you do not even have to catch them out in a lie. The decision maker might say, “This story makes me feel uneasy. I’m not going to accept it unless I can find some corroboration as a matter of fact”. What is the matter with that?
MR GAME: Once again, it depends on what your Honour means by “satisfaction” and “acceptance” and “unease”. There are a whole series of qualifications in that.
McHUGH J: Exactly, yes.
MR GAME: Your Honour, what really lies behind what is being put to me, in my submission, is that I do not believe – and what does not appear in the Tribunal’s reasons is: “This story is not corroborated. I do not believe this story. Therefore, this story is being made up to, in effect, advance a refugee claim.” That is what is implicit in what is taking place and, in our submission, that is erroneous.
McHUGH J: Well, it may depend upon at what stage the view is formed. This is an ongoing process; it is inquisitorial. There are various stages in that and one reads or listens to a story and it goes on and on and on and one gets a feel about it and, depending on the inherent consistency of the story, depending on the demeanour of the person, there are all sorts of factors that might make a decision maker think, “Well, before I’ll be satisfied I want some corroboration”.
MR GAME: I have put this submission before, but if you accept that somebody has a strong fear and then you propose to determine the case on a basis of whether or not an incident occurred, then to determine whether or not the person, and assuming all of those things, has a well-founded fear of persecution involves an assessment of the probability of the incident not being reported, as a matter of simple logic. There is no sign that that particular inquiry has been conducted, yet having so restricted itself in this way, and we say it has unduly confined itself in this way such that it is not truly addressing the question, that is where this decision is left, in our submission.
Indeed, when one comes to the end of the reasons, all that is said is, having a whole series of things being held to be remote, his fear of persecution is, therefore, not well-founded, and that is it. That is the sum total of addressing the – in the reasons – to the question raised by the Convention and the question whether or not the subjective fear that was found, past or present, was said to be well-founded. As I said, and I have said before, that is a question which you cannot determine Justice Davies, in our submission, was quite right in saying you cannot, for the reasons given by your Honour Justice Gaudron in Chan, determine that question without sourcing, not in the present but in the past, the subjective fear.
Having said that about the reasons, I now propose to turn to some of the principles relating to error of law, but in so doing, I propose to pick up some of the principles relating to the broader principles of judicial review. I will come back in due course to the question of sections 476 and 420, and then subsequently address some of the specific questions relating to the writ proceedings. Now, firstly, if I could commence with the decision of this Court in Craig 184 CLR 163 at 179. In Craig at page 179 this Court set out what are the principles relating to judicial review of administrative decisions, not inferior court decisions, but administrative decisions. The long paragraph beginning with “The position is”:
The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
Now that is the context within which any writ proceeding seeking Wednesbury unreasonableness are to be applied, but it is also the broader context within which one determines what is meant by, or what is to be understood by, the concept of error of law in the concept of judicial review ‑ ‑ ‑
GUMMOW J: But that formulation at 179 does not allow for Wednesbury unreasonableness, does it, as a separate head?
MR GAME: Well, it picks up irrelevant considerations but it does not specifically refer to – ‑ ‑
GLEESON CJ: Unless that is what is meant by the expression “in some circumstances”.
MR GAME: Yes, it may do. It is said in the context of establishing jurisdiction provisions which have privative clauses excluding certiorari so I assume – and it is said to be in the context of jurisdictional error, so it may explain why Wednesbury is not specifically referred to
GUMMOW J: Well that is what I was wondering.
MR GAME: Because it may be that it simply – what has really been done there is a confirmation that a different set of principles apply in relation to administrative tribunals in the context of judicial review in cases where provisions have privative clauses which exclude review other than those going to jurisdictional error. But my proposition is, if that is the case in relation to instances where there are no certiorari clauses, then, a fortiori, one must have at least that and presumably Wednesbury unreasonableness.
Now if I could take the Court back to Peko which has been referred to more than once. In Minister for Aboriginal Affairs v Peko-Wallsend – as I said some of the propositions I am going to pick up are propositions that pick up propositions relating to Wednesbury unreasonableness as well as error of law. But in Peko-Wallsend we see the consideration at page 39:
The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account –
Sean Investments is referred to, and shortly I will take the Court to Sean Investments because, in my submission, Sean Investments gives a fairly expansive reading to that proposition.
Then one sees the following quotation from Wednesbury:
“must call his own attention to the matters which he is bound to consider”.
Then at the bottom of the page:
If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.
GUMMOW J: Well, that is all trite law.
MR GAME: Well, yes, your Honour, but it depends on the question. In my submission, yesterday, at least, a proposition was being advanced as I understood it, but relevant consideration ‑ ‑ ‑
GUMMOW J: We know what the factors are here. That is what Mr Basten was putting to you. In 2HD it just said if it thinks it is suitable to do so, the Broadcasting Tribunal can renew your radio licence.
MR GAME: Yes, but ‑ ‑ ‑
GUMMOW J: The question is, what criteria? Answer, you have to look at the scope and purpose of the Act.
MR GAME: Yes, your Honour, but then that question – its licence ‑ ‑ ‑
GUMMOW J: It does not say here the Minister may allow any person refugee status.
MR GAME: No.
GUMMOW J: It specifies satisfaction as to Commonwealth matters.
MR GAME: Yes, it is not an unconfined discretion but the question, ultimately, turns on how significant the matter is or the material is before it can be said that the Tribunal is bound to rely upon it. What was, in effect, being put was that relevant considerations were only considerations that went to the ultimate issue and we dispute that proposition, your Honour.
GUMMOW J: Well, that is the point.
MR GAME: We dispute that issue based ‑ ‑ ‑
GUMMOW J: You want to say the relevant considerations are evidentiary considerations going to the underlying primary facts.
MR GAME: To important ones; to not unimportant ones.
GUMMOW J: How do you tell that?
MR GAME: You can only tell that by looking at the content and subject matter of the material.
GUMMOW J: Of the material?
MR GAME: You have to look at the material.
GUMMOW J: I see.
MR GAME: So, for example, we would say that failure to have regard to the amnesty material ‑ ‑ ‑
GUMMOW J: If you are right, you are bringing about a revolution in administrative law.
McHUGH J: You certainly are.
GUMMOW J: Maybe it is a good thing, but will be.
MR GAME: It depends on ‑ ‑ ‑
GUMMOW J: It has to be faced up to. That is what it will be. I do not think that is what Sir Anthony Mason was talking about here.
MR GAME: Your Honour, when he said – could I just continue with it? I know it has been gone through before but, at page 40:
A factor might be so insignificant that the failure to take it into account could not have materially affected the decision –
Now that, in my submission, is suggestive of a qualitative judgment about the material, otherwise, how could one determine whether or not it was or was not so significant other than ‑ ‑ ‑
McHUGH J: You do it, because as his Honour says, at page 40:
By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined…..the court will not find that the decision‑maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject‑matter, scope and purpose of the Act.
See, you have got to be able to say for the purpose of the Migration Act or Part 8 that this decision maker was bound to take Amnesty International’s, for example, reports into the process in weighing up the evidence.
MR GAME: It was bound to give consideration to relevant material that was put before it.
GUMMOW J: But you have got to look at the context in which his Honour was speaking, and it was section 11 of the Northern Territory Aboriginal Land Rights Act which is set out at page 32. It was where certain facts exist, at paragraph 1(a) and:
(b) the Minister is satisfied‑
(i) that the land…..should be granted –
then –
the Minister shall‑
Now, what it did not tell you is what was to be taken into account for the Minister to reach that satisfaction, right, hence the reference to 2HD and that informs the whole of the discussion by the Court. It is a quite different structure than the legislation to this Act. They were not talking about underlying facts.
MR GAME: I am just about to get the provision. There is, in fact, a provision in the Migration Act that says that the Tribunal is bound to have regard to relevant material, but I am just about to –
GUMMOW J: If that is so, we should have been taken to it some time ago.
MR GAME: I am sorry.
GUMMOW J: If that is so, we should have been taken to it some time ago.
MR GAME: I am sorry, I am just about – I am going to have to come back to the section, your Honour.
GAUDRON J: Is it not excluded by 3(d) and (e)? The AD(JR) Act I can understand, but the Migration Ac, I would have thought looked like it was excluded by 476(3)(d) and (e).
MR GAME: Your Honour, that is in relation to proceedings that are brought in the Federal Court. It does not apply in relation to the writ proceedings and, as I said, the other case that I wanted to refer to – could I just also refer at page ‑ ‑ ‑
GUMMOW J: Just before you leave that, you are talking about Wednesbury, there is a reference to that at 41 is there not, thereabouts?
MR GAME: Yes.
GUMMOW J: That starts at paragraph (d) on the bottom of page 40:
The limited role of a court reviewing the exercise of an administrative discretion –
and then his Honour goes. Now, the expression “manifestly unreasonable” in the middle of 41 is all about what seems to be an odd, to use that word, process of weighing the considerations which are to be taken into account; to be taken into account, identified, in accordance with Sean Investments on page 39.
MR GAME: Yes, and then the passage ‑ ‑ ‑
GUMMOW J: That has nothing to do with this fact‑finding process you are trying to draw the Court into. That is dealing with a situation where, say, you have a list and there are factors to be taken into account, and it looks absolutely strange that the decision maker has given enormous weight to No 5 and discounted 1, 2, 3 and 4, when that seems quite off the rails. It seems within power, literally, because there was a list, and he has taken them all into account.
MR GAME: Yes.
GUMMOW J: He or she has given quite irrational weight to one of them and little weight to another. That is what Lord Green had in mind, it seems to me.
MR GAME: That is in the context of a discretion which defines what particular elements you are to have regard to. Here the question is whether or not the person is entitled to refugee status. It is to be found in the Code, section 54 and section 55:
(1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.
Section 55:
(1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
When one comes to the Tribunal, section 415:
(1) The Tribunal may, for the purposes of the review of an RRT‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
We would submit that that puts the Tribunal effectively in the same position as the Minister. The Tribunal’s obligation must be the same as is found in sections 54 and 55.
GUMMOW J: What is the document spoken of?
MR GAME: I have actually had that annexed to an affidavit, but it is before the Court. It is an application and it is annexed to the application as a statutory declaration. That is the document. The Court has that document. The Full Federal Court did not have that document and Justice Hill appears not to have had that document.
GAUDRON J: I must say I would not read 415(1) in the way you suggest. Do you have anything else to support the view that that is how it is to be construed or anything relating to the Tribunal that – I would have thought that if there was, that you would find the powers, et cetera, of the Tribunal in Division 4, section 423, et cetera.
MR GAME: Section 424 – when one speaks of a “review on the papers” at 424, that is a reference to obviously all of the papers, so it is the application and any additional information. So we would submit it is clear from that that the Tribunal must have regard to – if you are going to have a review on the papers, then you must have regard to all of that material but you do not come to 425 unless you have determined 424 adversely. So, by the time you have finished, you will have had regard to everything that is put ‑ ‑ ‑
GAUDRON J: When did this Amnesty report turn up?
MR GAME: During the course of the proceedings.
GAUDRON J: Before?
MR GAME: Some before and some after, I think, but I am not certain, your Honour.
GAUDRON J: Before or after what?
MR GAME: No, some turned up during the course of the proceedings.
GAUDRON J: Proceedings before whom?
MR GAME: Before the Tribunal.
HAYNE J: Namely the oral hearing – so after the review on papers?
MR GAME: Yes. Some turned up during the course of the proceedings.
GAUDRON J: And how do you know regard was not had to it? Simply because it was not referred to?
MR GAME: Your Honour, in relation to the important question about the December incident, no mention is made of the fact that Amnesty said that it was perfectly possible for such an incident not to be reported and that circumstances were such at the time that it would be a highly unreliable exercise in fact-finding to work on the assumption that the incident would not be reported.
HAYNE J: Is the Amnesty information to which you refer different from the Amnesty information referred to at page 319 line 35 through to page 320 line 21?
MR GAME: Yes, it is quite different; it is the material that appears at page 272 through to 279 and in particular the material at page 275 to 276, namely:
Amnesty International considers that the absence of information on a human rights violation is never to be taken as an indication that it did not occur.
And then there is a discussion there. Then at the bottom of the page reference to the circumstances as they were in Ethiopia in 1991.
It just occurred to me, another example of the failure to have regard to the well-founded question was that that incident of January 1993, where it was said that a number of students were killed and there was an argument about whether or not that was the case, that was used only in the context of whether or not Mr Eshetu’s beliefs about the rumours was correct; it was given no use in the context of how one makes a prediction about the position of student leaders, and yet there was material that showed what had happened to student leaders.
It is quite clear, in my submission, that the Tribunal embarked upon an exercise that did not allow it to even engage in that question. So this, coming back to the material, that is at the top of page 276:
It is reasonable to assume that many incidents of arrest and ill-treatment were not reported and did not come to the attention of human rights organisations. …..Amnesty…..reports from the time indicate that thousands of people were arrested in mid- to late-1991 by the new authorities, and that demonstrations which occurred in Addis Ababa and other towns throughout the country following the EPRDF takeover were forcibly suppressed.
HAYNE J: Was not the whole purpose of the second oral hearing to investigate these Amnesty issues? See page 280.
MR GAME: What happened at the second hearing was that – well, I am sorry, I should answer your question. Its purpose was to do so, yes, but, in my submission, that is not what occurred at the second hearing. Basically, propositions – all the Tribunal was doing was, in effect, complying with section 425. There was no serious investigation, in my submissions, of what he actually had to say. Indeed, he was – if one reads the transcript of what occurred on the second occasion, it was basically the Tribunal saying, “I find it strange that this incident was not reported”, and Mr Eshetu pleading with her as to reasons why it may not have been reported.
GUMMOW J: One thing which is demonstrated by 280 is an abundance of procedural fairness in the procedures of the Tribunal.
MR GAME: Well, in terms of putting the materials ‑ ‑ ‑
GUMMOW J: Yes. I wonder if there are many other countries that can boast that.
MR GAME: Well, we are not saying that the material was not put but our case is about the way in which the question was ultimately addressed. Now, I took the Court to Peko-Wallsend. With respect to Bond, we do place particular reliance upon that passage to which reference has already been made in which Pashamforoosh is, in effect, adopted and we would submit that the qualification is, for present purposes, not a relevant qualification. There was just one other thing about Peko-Wallsend. In the passage at 42 that Justice Mason said that:
guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion.
Now, if that is so, then House v The King type principles would not be out of place in the context of reviewing for Wednesbury unreasonableness. So that decisions such as the decision in Australian Coal and Shale where once an approach which approves, in effect, looking to the abundant unreasonableness of the decision to determine whether or not a court is falling into error, even no overt error exists, or in House v The King itself, a failure to address relevant material or misapprehending the facts, would be the very type of material that would warrant intervention in judicial review.
HAYNE J: Well, it may show error but it does not necessarily show error of law as opposed to mistake as to fact. the conclusion may be so observed that it made the token error but it does not classify that error.
MR GAME: Well, the question is what type of error that is but in terms of review of judicial discretion, there can be no doubt but that the courts will intervene however that particular error is construed, in those circumstances, if it satisfies those criteria.
KIRBY J: Where was that passage in Peko where ‑ ‑ ‑
MR GAME: It is at page 41, your Honour.
KIRBY J: Page 42, yes. Is that suggesting that the fundamental idea in Wednesbury unreasonableness is that it is like the discretion which you could say has miscarried because it is such an obviously wrong exercise but you cannot put your finger on where the factor that has been taken into account or not taken into account or other error occurred?
MR GAME: Yes, your Honour, and in Justice Dawson’s judgment in Peko v Wallsend he specifically referred to the principles relating to review of discretion. House v The King and he referred to Australian Coal and Shale. That is at page 72. Now, if those principles do apply then, in our submission, that puts a very different complexion on what the nature of the review is and we would, with respect, adopt and endorse the approach taken by Justice Mason and Justice Dawson in Peko-Wallsend. The Court has been taken to Justice Mason’s judgment in ABT v Bond. Now, I have just referred to the passage from Pashmforoosh which we place significant reliance upon and we would say about it that the rest of the judgment has to be understood in the context of that acceptance of that proposition.
Now, if I could take the Court to Justice Deane’s judgment at page 365. His Honour there is referring to the duty that is placed on:
a non curial statutory decision-maker to observe common law requirements of fairness and detachment in certain circumstances as a “duty to act judicially” –
Now, the phrase “acting judicially” might not be the phrase which is currently used but it is clear that his Honour means the duty to act rationally and reasonably, and if one goes to page 366 at point 5:
That evolution of terminology should not, however, be permitted to constrict the content of such an obligation to a mere requirement to observe some surface formalities. A duty to act judicially (or to accord procedural fairness or natural justice) extends to the actual decision-making procedural process, that is to say, to the manner in which and the steps by which the decision is made. As I pointed out in Minister for Immigration and Ethnic Affairs v. Pochi, it would be both surprising and illogical if such a duty involved mere surface formalities and left the decision-maker free to make a completely arbitrary decision. If the actual decision could be based on considerations which were irrelevant or irrational or on findings or inferences of fact which were not supported by some probative material or logical grounds, the common law’s insistence upon the observance of such a duty would represent a guarantee of little more than a potentially futile and misleading facade. If the decision were determined by the toss of a coin or something other arbitrary procedure ‑ ‑ ‑
GUMMOW J: We can all read it but what his Honour is doing is looking at this through the focus of natural justice, is he not? On page 367, is he not putting Wednesbury in that category as well which would have the invalidating effect which flows from failure to extend procedural fairness?
MR GAME: I think Kioa would be contrary to that, your Honour.
GUMMOW J: That is what I am wondering.
MR GAME: I think Kioa would suggest that denial of natural justice would invalidate a decision and in New South Wales there are a line of cases, one of which is Cop…., which says that a denial of natural justice goes to the validity of a decision, hence a denial of natural justice.
GUMMOW J: But validity in what sense? Validity at all times and in all circumstances or validity, once established by a decision with, as it were, retroactive effect?
MR GAME: Well, I am not sure.
GUMMOW J: In other words, is it valid until it is impugned? That is the important question.
MR GAME: It may be, again I am not certain, your Honour, but ‑ ‑ ‑
GUMMOW J: It is an important question for section 75(v) of the Constitution.
MR GAME: I am not sure how much assistance I can be, but it may be that cases, as I recall a case of Kavanagh v The Commissioner of Railways might suggest that the validity of the decision was impugned ab initio, in effect, from the making of the decision. If I could just go on with that passage from Justice Deane in Bond at page 367:
I identify what I see as the other more important incidents of the obligation. In so doing, I have treated what are sometimes referred to as “Wednesbury principles”…..as encompassed by the obligation to act judicially in cases where that obligation exists -
And there is a reference to GCHQ.
If a statutory tribunal is required to act judicially –
and this has particular relevance in this case, having regard to section 420 and the decision of this Court in Bott -
it must act rationally and reasonably. Of its nature, a duty to act judicially…..excludes the right to decide arbitrarily, irrationally or unreasonably.
Now, in this context, could I refer the Court – I am sorry, there is a further examination at page 368 which, in our submission, makes the point very nicely and I will not read the whole thing out, but it begins at the top of the page and it goes down to the reference to “Mahon v Air New Zealand”. And, in our submission, his Honour makes the point very clearly in that passage on the whole of that page down to “Mahon v Air New Zealand”.
KIRBY J: I notice that Professor Aronson suggests that Justice Deane’s is a distinctly minority view and that it is significantly different from Chief Justice Mason.
MR GAME: That is quite true, your Honour, but it would seem that the position is sufficiently open for it to be open to argue what are the true principles and it would seem that this is an appropriate case in which to address those principles.
GAUDRON J: Are you talking on the writ now?
MR GAME: I am talking on the writ, your Honour. But the reason why I have been addressing error of law and Wednesbury unreasonableness is so I do not take you through the same cases twice.
GAUDRON J: Yes, I just wanted to be sure in my mind that that is what you are talking about.
MR GAME: That is why I started with Craig v State of South of Australia.
GAUDRON J: Yes.
KIRBY J: How do you formulate the correct principle, or do you wish to do that after you have read Justice Deane?
MR GAME: I know this is a very weak answer, but I would adopt the approach that is advanced by Justice Deane, that is to say, if the Tribunal does not act rationally and reasonably, if it acts illogically, if it does not act on probative evidence, then it has fallen into error in the Wednesbury sense.
GAUDRON J: But his Honour did not say “illogically”, he simply said there had to be some logic, did he not?
MR GAME: Well, I think the ‑ ‑ ‑
GAUDRON J: Some logical base.
MR GAME: I think it depends what the logic relates to. There may be some illogical reasoning which does not impugn a decision. Some other illogical reasoning may well impugn a decision. It depends how it touches upon the issues that have to be determined. I think “irrational” and “illogical” to a certain degree are used interchangeably, although they are not interchangeable per se.
GAUDRON J: And his Honour was talking about the decision, was he not, not the factual findings along the way? Is that clear?
MR GAME: Yes, but the whole point is that you have to look at – his whole approach is to – because if one goes back to the passage at 366, the whole point is that one goes behind the decision itself because it says, “If the actual decision could be based on considerations which are irrelevant or irrational”, reference to some probative material on a logical grounds. That all assumes that you go behind the decision and the ultimate question. Just as endorsement of principles relating to judicial discretion implies that you will engage in that very exercise.
Now, I wanted to refer the Court to a single judge judgment of Epeabaka, a decision of Justice Finkelstein in the Federal Court ‑ ‑ ‑
HAYNE J: In aid of what principle? What is the contention that you are advancing?
MR GAME: The contention that I am advancing is that a decision is impugnable for Wednesbury unreasonableness if it is, in effect, irrational or unreasonable, and that that contemplates ‑ ‑ ‑
GUMMOW J: A decision?
MR GAME: Yes, but that it contemplates an examination of the facts and inferences lying behind the decision and to the extent to which they are logical and can be sustained by rational reasoning.
GAUDRON J: To what matter in the application or what ground in the writ do we relate it?
MR GAME: It goes to the substance of the submissions as to the way in which the Tribunal went about informing itself of the ‑ ‑ ‑
GAUDRON J: Yes, but is there a ground in the writ that brings it up for decision, as it were, and is there a ground in the original application that brings it up for decision?
MR GAME: The draft writ has not been reproduced in the appeal book.
GAUDRON J: We will need that, will we not?
MR GAME: Yes, I do not know why it has not been reproduced, your Honour.
GUMMOW J: It is a source document…..the judgment.
MR GAME: I do not know why it has not been reproduced. Could I just say this. I was going to hand to you at the conclusion of the submissions an amended notice of motion that we proposed to rely upon. If I could just hand the Court – this does not answer your question, your Honour, but we do propose to amend the notice of motion to include a claim of certiorari against the second respondent.
CALLINAN J: I have a separate application book with the notice of motion in it.
MR GAME: Yes, your Honour, but that does not reproduce the ‑ ‑ ‑
GUMMOW J: All you have at the moment is the application, with a draft order nisi referred into this Court under Order 55 rule 2 ‑ ‑ ‑
GAUDRON J: But there is a ground, at page 3, the Wednesbury unreasonableness ground.
MR GAME: That is the notice of motion which brought it to the Full Court. The order nisi ‑ ‑ ‑
GUMMOW J: We do not have an order nisi here.
MR GAME: Sorry, the draft order nisi, we do not ‑ ‑ ‑
GUMMOW J: You have a draft. Where is the draft?
MR GAME: The draft has not been reproduced. The draft order nisi will not tell you that either, because the draft order nisi simply tells you that the second respondent’s decision was so unreasonable that no reasonable tribunal acting within jurisdiction and according to ‑ ‑ ‑
GUMMOW J: Are we going to get a copy of it?
MR GAME: Your Honour, I will do so. I do not have copies of the draft order with me. Could I just say ‑ ‑ ‑
GUMMOW J: I feel as if I had wandered into something in which I am not really in control of, I do not know what is happening.
MR GAME: The ground is as appears in the notice of motion, so that is the further notice of motion that I have handed to you. Your Honours, the single ground appears on the second page, namely that the second respondent’s decision was so unreasonable that no reasonable tribunal acting within jurisdiction and according to law would have come to such a decision. And that is the single ground that is relied upon, but we have sought to elucidate the matters that are relied upon in the written submissions that have been put before the Court, and I will come to the substance of those in due course. At the moment I am simply seeking to address what the principles are.
GUMMOW J: All I am saying is that if you were before one judge in the Full Court at this stage, you would be in deep trouble procedurally. I should not think you are any less so, but you happen to be before seven Judges in the highest Court in the country, Mr Game.
MR GAME: I am sorry, your Honour. The case to which I wish to refer was Epeabaka 150 ALR 397 to show that – it is a passage at pages 401 to 402. The purpose of it was to show that there is – in a sense to develop an argument or to show that there is substance in the alternative view taken by Justice Deane in Bond. I will not read it but it is the passage on pages 401 through to 402, line 35.
McHUGH J: It is interesting to see that Bott is getting a run again. It used to be run all the time 25 years ago, but it is superseded. This Act seems to have given it a new lease of life.
MR GAME: I am about to give it another run, your Honour, in the context of section 420. Those are the cases and principles that I wish to refer to in the context of error of law and unreasonableness. I will return to the question of construction of section 476 and section 420.
Again, I will not read from it, but we start with the proposition that the provisions are to be interpreted in the context of the principles enunciated in cases such as Darling Casino. That is to say to the extent that an obligation is stated to exist but provides no review, that obligation is illusory, and that as a matter of construction one seeks to find a construction of provisions which gives effect to all of them. That is, in effect, the driving principle of construction with which we commence and upon which we persuaded the Full Federal Court that all of the provisions, including section 420, could be given effect.
I have provided the Court with a schedule of the legislative history and if I could just refer you to the schedule briefly, because it shows how the provisions came into the Act. It is a document that looks like this. Now, if I could go to the second page of that document, you will see that what happened was that section – the Immigration Review Tribunal was first established and it had an obligation of the kind found in section 420. At that stage there was AD(JR) and an appeal to the Federal Court on a question of law, section 138.
Then, section 22A came in. Section 22A is not the operative provision now and that is the provision that was considered in Wu and then, in a single piece of legislation which was staggered in its operation, the Refugee Review Tribunal was brought into existence, was established.
GUMMOW J: This is paragraph 3.8 of your outline, is it?
MR GAME: It is not in my outline, I think it is ‑ ‑ ‑
GUMMOW J: It was in Mr Basten’s?
MR GAME: Yes.
GUMMOW J: Well, you do not disagree with that?
MR GAME: No, your Honour, but what I am seeking to show is that it was all part of the same legislative package but that simply that its introduction was staggered and then I wish to say something about the explanatory memorandum in respect of interpretation of these ‑ ‑ ‑
HAYNE J: In aid of what proposition?
MR GAME: In aid of ‑ ‑ ‑
HAYNE J: What is the end point?
MR GAME: The end point, your Honour, is that section 476 was not intended to operate as a privative clause and that section 420 was intended to be part of the applicable law and was intended to be included as the procedures which were identified in section 476(1)(a).
HAYNE J: I thought Mr Basten had said he did not argue that 476 operated as a Hickman‑type clause and he expressly disclaimed any reliance on it.
MR GAME: Yes, your Honour, but the question still arises as to whether or not section 420 imports an obligation as part of the applicable law and whether or not ‑ ‑ ‑
GUMMOW J: Well, we know. That is what the Full Court said. That is what is challenged.
MR GAME: I am advancing the proposition that it is part of the applicable law.
GUMMOW J: Yes. We all know that. That is why special leave was granted. The question is, is it right?
MR GAME: I think, actually, it – well, anyway, yes, the ‑ ‑ ‑
GUMMOW J: What is wrong with Justice Lindgren’s reasoning, to get down to tintacks? He made four points and there was a suggested fifth point, including looking at the explanatory memorandum.
MR GAME: What we say is, first, relying on Bott and if I could take the Court to Bott 50 CLR 228 and Bott, we submit, is an important case in this context because the decision in Bott, at 243, bottom of the page, now, the actual provision, which is referred to is found at page 230, requires the Tribunal to:
act according to substantial justice and the merits of the case –
and at the bottom of 243 the Court said that:
it may be said that the expressions in sub-sec 2, although adopted from legal procedure, really describe the grounds upon which a more or less discretionary judgment must be formed by an administrative body, and that neglect of its requirements, as distinguished from a mere erroneous application of them, would amount to a departure from the prescribed criterion or a desertion of the issue to be determined.
And that is the distinction which lies behind the reason why it is not merits review if you say you did not address yourself to the substantial merits and justice of the case.
McHUGH J: But I would have thought the passages at 242 and 243 are against almost everything that is put to us. At the bottom of 242 their Honours say:
It may be shown that the members of the tribunal have not applied themselves to the question which the law prescribes –
et cetera –
But the prosecutor who undertakes to establish that a tribunal has so acted ought not to be permitted under colour of doing so to enter upon an examination of the correctness of the tribunal’s decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded.
MR GAME: That, your Honour, is not in the context of that particular provision. That is a general comment about judicial review and the availability of mandamus, of course. But we rely, as I said before, the cases which – in that respect, we obviously do not rely on Bott. The reliance on Bott solely relates, in effect, to the passage concerned with ‑ ‑ ‑
McHUGH J: But their Honours expressly made that statement applicable to the second part of Bott, did they not, by saying ‑ ‑ ‑
MR GAME: But if they are the grounds upon which a more or less discretionary judgment must be formed in the neglect of its requirements, that is to say the neglect of the requirements must, in our submission, be a failure to address the question which is raised. That is to say a failure to address the substantial merits and justice of the case and that is the distinction which has been made.
It is not only a procedure but a matter of substance and the section says “must act according to”, so it is not merely a reference to what takes place in terms of procedure, but it is a reference also to what occurs in the context of the decision‑making process. So it is a reference to both a procedure and the decision itself.
Similarly, at page 249 in the judgment of Justice Starke which we rely upon – it actually starts after reference to Moses v Parker and goes down the whole of the page. There is a further reference in Justice Evatt’s judgment at page 252. Our submission, in short, is that when the provision refers to “acting according to the substantial justice and merits of the case”, that is an actual obligation which is placed upon the Tribunal, it is part of the applicable law and it is also one of the procedures. We say, for example, in relation to section 425 which is – that is ‑ ‑ ‑
HAYNE J: Before you leave that, is the content of that obligation to do more relevantly than bona fide to attempt to decide according to those criteria or is it an obligation to get it right?
MR GAME: It is an obligation to – no, this provision allows of the making of a wrong decision, your Honour.
HAYNE J: So it is an obligation to act bona fide in deciding?
MR GAME: Yes. If you did not act rationally and reasonably, you would not be acting according to the substantial merits and justice of the case, in our submission. So that what we would seek to do is to import into this provision – if you made a decision which was manifestly unreasonable, you would not be acting according to substantial justice. What we seek to do is to import into this provision the propositions made by Justice Deane in Bond. That is how we would submit that it should be construed. As I have said before, to the extent that it creates an obligation which is not enforceable, then the obligation is illusory. But also we make a submission about 476(1)(e), that in interpreting the applicable law – when one interprets the applicable law ‑ ‑ ‑
GLEESON CJ: Can I just interrupt you to say that in the past in relation to similar provisions in other contexts, people have usually regarded them as being at least as important for what they do not require the Tribunal to do. Provisions like this are usually the foundation of an argument that the Tribunal does not have to apply strict legal principles.
MR GAME: Well, that is quite true, your Honour, but it does not. It is ‑ ‑ ‑
GLEESON CJ: Acting in accordance with the justice and substantial merits of the case is a formula that is often used to distinguish from acting in accordance with the law.
MR GAME: Yes, quite, your Honour, but it does two things. It says you can act informally but you must, in effect, bona fide or honestly address yourself to the case, that is what it is ‑ ‑ ‑
GLEESON CJ: But you do not get caught up in legal technicalities. That is what this is aimed at, is it not, a provision like section 420?
MR GAME: Well, it is not just that, your Honour. It is not just that ‑ ‑ ‑
GLEESON CJ: No, but that is an important aspect of it.
MR GAME: Yes, your Honour, but section ‑ ‑ ‑
GLEESON CJ: The negative aspect of a provision such as 420 is one that is usually made the foundation of arguments as to the way in which a tribunal such as this can conduct itself.
MR GAME: Well, quite, but it would, in our submission, be to ignore the language of requiring that you act according to substantial justice and merits if you only look to the aspect that in effect freed up the procedures by which you did so.
GLEESON CJ: Well, act in accordance with the substantial justice and merits as distinct from what?
MR GAME: As distinct from acting in an arbitrary fashion. It does not just say the Tribunal is not bound by technicalities, legal forms or rules of evidence, it says, well, there is that but there is something else that is a constraint and the constraint is that you must do it in a particular way and it is relatively strong language – I mean, in a sense, it is relatively strong language to say that you must determine something according to the substantial merits.
GLEESON CJ: I am not sure it is intended to be a constraint. It may be intended to be a freedom, a relaxation.
MR GAME: But, your Honour, I ask rhetorically, how could it be a freedom if it ‑ ‑ ‑
GLEESON CJ: It means you are not bound by strict legal rules. That is the way it was argued in the case of Qantas referred to in Mr Basten’s legal submissions.
MR GAME: Yes, but that is not – I think in Qantas it said that it depended on the context what the precise content of it would be. But, your Honour, to say – one is saying a lot more than to say that the Tribunal may proceed informally if you are saying that the proceeding must act according to substantial justice and merits. It is a proposition that – I mean, one merely needs to read it to see that it is a lot more than an indication that one is freed up from legal technicalities. If that is what the provision intended to say then it could have said it ‑ ‑ ‑
GLEESON CJ: That is part of what it says, but to treat it as a constraint is to tell only part of the story.
MR GAME: No, I accept that, your Honour. But I said, it is in part a freeing up in terms of how you may inform yourself, but in part it is a constraint and, in my submission, one cannot get away from that constraint and that once one has accepted that that constraint exists, then that is part ‑ ‑ ‑
GLEESON CJ: You find this provision, for example, in the consumer claims legislation that governs the operations of the Consumer Claims Tribunal in the State jurisdictions and what it tells the Tribunal is that they do not decide cases necessarily according to the same principles as would be applied in the Commercial Division of the Supreme Court.
MR GAME: I accept that your Honour. All I am saying is that one must find some content and it is not a minimal content in the words that appear in subsection (2)(b).
GAUDRON J: Well, perhaps one can accept that it excludes arbitrary practices that would one really go beyond that arbitrary, perhaps irrational unfair procedures? But would it go beyond anything that is not covered in the grounds of the view under the Migration Act?
MR GAME: That is my argument, your Honour, is ‑ ‑ ‑
GAUDRON J: That it does?
MR GAME: Because ‑ ‑ ‑
GAUDRON J: Because you say it brings in Wednesbury unreasonableness.
MR GAME: I say, not in precise terms, it brings in a statutory formulation as to how the tribunal is to act. I do say that if one acted in a Wednesbury unreasonable sense, then it could no be said that one was acting according to the substantial merits and justice of the case. Just as if one denied natural justice to an applicant, one would not be acting according to the substantial justice and merits of the case. But it is not the precise content of natural justice that is imported in terms, that is how we put it. And my friend has already taken the Court to the Full Court’s decision in Sun, and we would respectfully adopt the way in which the court interpreted it in that decision. Now, that is what I wanted to say about section 420.
I have dealt with the written submissions with respect to error of law and section 420. It remains to refer the Court without going through them in detail, to our submissions that we put in relation to Wednesbury unreasonableness.
We submit, in effect, that the scope of the Wednesbury unreasonableness case substantially depends upon the extent to which one is
constrained under section 476(1)(e), with respect to error of law, presuming that the provision is left standing. That is to say, a failure to address the Chan question, as we put it, and a failure to address the case as put, which are two of the central propositions I have been putting to the Court, if those are not errors of law in the sense identified, then they would remain to be addressed in the Wednesbury Case.
With respect to the way in which we put the case, with respect to failing to have regard to relevant matters or giving excessive weight to matters or irrationality and reasonableness, I rely on the written submissions. I will not take the Court through them in detail, but if I could take the Court to the passage at page 11 of those submissions. Again, what I say depends very much on the scope of the relief of Wednesbury unreasonableness, but those are matters which we submit were left out of account in determining to, in effect, reject the account in relation to the December incident, and we list at page 12 the seven matters which may have explained why there was no report. We also put on submissions in reply, which I will not refer to in detail, but they also outline the approach that we say should be taken in relation to Wednesbury unreasonableness. Those, if the Court pleases, are our submissions.
GLEESON CJ: Thank you, Mr Game. Yes, Mr Basten.
MR BASTEN: Your Honours, in relation to the writ, I think I have already touched upon the relevant issues in relation to our submissions with respect to Wednesbury unreasonableness as a ground, in my opening submissions, and we have dealt with the principles of law in some little detail in our written submissions for the first respondent. Subject to one or two comments I would wish to make now, I do not intend to respond in any more detail than that on the writ. I think it has been adequately canvassed.
Might I in this context, however, take up the comment that Justice Gummow made to me this morning, in relation to the academic comment on Bond.
There is a sense in which the academic comment is relatively limited, as it turns out. Dr John Griffiths presented a paper to a conference on, I think, 20 years of the AD(JR) Act. That paper has not been published, as I understand it. The analysis that ‑ ‑ ‑
GUMMOW J: I thought it was to be in 20 Federal Law Review, I may be wrong. Anyhow, it could be checked.
MR BASTEN: No, I am sorry, your Honour, those were the papers from the first decade. I thought your Honour was referring to the paper he gave last year in 1997 at the end of the second decade, but it ‑ ‑ ‑
GUMMOW J: No, I was in a time warp. I was thinking about the earlier paper.
MR BASTEN: John McMillan has a paper in 20 Law Reviews.
GUMMOW J: Is that it? Thank you.
MR BASTEN: And there is some discussion at page 57 of 20 Federal Law Review of 1991 in relation to Wednesbury unreasonableness, and ‑ ‑ ‑
GUMMOW J: That is what I had in mind, yes.
MR BASTEN: Page 59. Your Honour’s comments are at page 132. The other discussion, though, appears – and this is the most detailed discussion, as your Honour noted – I think in Aronson v Dyer to which we refer in the written submissions, I am not sure if it was in this matter, Judicial Review of Administrative Action, at page 273 there is a discussion entitled “Exercises in Alchemy or How to Turn Factual Errors into Errors of Law”, a terminology we would respectfully adopt. There is then ‑ ‑ ‑
KIRBY J: It is slightly loaded terminology.
MR BASTEN: It is loaded, your Honour, and the inference is discussed in the ensuing pages. At page 279 in the next section, the section is headed “Azzopardi’s Retreat: Perversity is not an error of law”. Might I just advert to page 280 – I know your Honours do not have it – the author’s note that the Court of Appeal in New South Wales:
has repeatedly refused leave to re-argue or otherwise constrict Azzopardi’s principle, which has been applied countless times.
And it goes on to quote some comments of your Honour when President, and refers to a number of decisions, including one of the Court of Appeal in a Medical Tribunal matter to the effect that Azzopardi was consistent with Chief Justice Mason’s judgment in Australian Broadcasting Tribunal v Bond, and notes that Justice Davies has rejected Azzopardi.
The next section is entitled Bond: Restrictive Sentiments Against a Full Tide. The criticism of Bond that is adopted there is in part at page 282 at about point 7 where the authors suggest:
What is extraordinary about Bond is that such detailed consideration could have been given to findings of fact, in the context of a judgment which was theoretically intended to draw a line against treating judicial review as an equivalent to an appeal.
The authors, I think, support the intention behind Bond. At page 286 they commence an analysis of the cases which followed Bond.
KIRBY J: Is this all in Aronson?
MR BASTEN: This is all in Aronson and Dyer, Judicial Review of Administrative Action, up to page 289.
KIRBY J: Yes, thank you.
MR BASTEN: This may be trespassing on a comment which was raised earlier, but the authors have an interesting discussion of the void/voidable distinction, which of course is relevant to the other matter, and refer at page 652 to Calvin v Carr which, of course, did not suggest that there was any absolute voidness which would prevent appeals which would prevent findings being made in relation to decisions. The doctrine of absolute nullity was rejected and the authors say the Australian cases have followed Calvin without exception in the area of natural justice.
GAUDRON J: Yes, but have they been considered in a federal context? Is there anywhere that there has been any consideration of that? I can well understand that that would be so in relation to the offices of a State.
MR BASTEN: The answer is none of the authorities are in this Court, your Honour, and I could not ‑ ‑ ‑
GAUDRON J: I am not aware of any analysis in federal ‑ ‑ ‑
MR BASTEN: I am not aware of any analysis in the federal jurisdiction in the cases that are cited.
KIRBY J: There is a good paper by Professor Michael Taggart on the Calvin v Carr problem in a collection of essays published in New Zealand about 10 years ago.
MR BASTEN: Yes, not the most recent one, I think, but the previous.
KIRBY J: No.
MR BASTEN: Yes, that is so. Might I then turn very briefly to the further points in response to what my friend said. Firstly, he criticises the Tribunal for failing to correctly identify his client’s fear which he characterised as a fear of being persecuted as a student leader.
We respectfully say that the Tribunal characterised the fear by reference to him being an opponent of the regime. That appears at 319, line 10. This characterisation was one which was adopted by the applicant’s solicitor in the submission at page 111, line 10. If the Tribunal had adopted the characterisation my friend suggests the complaint would have undoubtedly have been that it had narrowed the scope of the inquiry impermissibly. The Tribunal’s characterisation translates the respondent’s claimed fear into a Convention ground in its terminology. We submit there is no error involved in that. The second point concerns a criticism which I am not sure that I fully understood and I am not sure that it has ever been made before as to the use of Amnesty material. Our response is simply that the conclusion that is sought to derive from the Amnesty material is, in our submission, entirely consistent with the actual findings of the Tribunal at page 316, line 37 and 317, line 15.
In relation to Bond, we would accept the proposition that Justice Deane expresses a view, which is a minority one to the extent that it departs from the Chief Justice, but even on his view, failure to find a primary fact would not be reviewable, so it does not go to the point that my friend needs to reach. Finally, in relation to the judgment of Justice Finkelstein in Epeabaka at page 402, suffice it to say that we do not accept the approach which his Honour with some hesitation adopted. We would say that it is wrong in law.
KIRBY J: May I just ask in relation to the 78B notice that was raised earlier in the day and given that it, contingently, may arise, may it not be wise for some notice to be given. I mean, it is raised in the earlier case.
MR BASTEN: Your Honour, yes, I understand the point.
KIRBY J: But this is a case which is whole of itself.
MR BASTEN: I accept what your Honour puts on this basis, that the notice of contention appears in substance to adopt the arguments which were put in the other case in order to found a basis for a finding in relation to this decision. If it does that then it is arguable, I suppose, that a constitutional issue is raised. If that is correct and, in answer to Justice Gummow’s question, I suppose the content of any notice would have to simply reflect the content of the one in the other matter.
No point has been sought to be discussed in this matter, but if the argument is relied upon, then arguably, a notice should be given. It could be given now on the basis that a time be allowed for any Attorney to make written submissions in relation to the matter and, although it is a highly technical point, we see there is some merit in that if the Court thought that were the appropriate course.
GLEESON CJ: Well, then the Court is of opinion that the notice should be given, in those circumstances, and the time could be fixed at 21 days.
MR BASTEN: I understand that would be for my learned friend to give.
GLEESON CJ: Yes.
GUMMOW J: And there was a revised notice spoken of yesterday at the directions hearing which counsel in that case will know about.
MR BASTEN: We can make that available to my learned friends.
GLEESON CJ: The notice is going within 21 days. We can give a further 14 days after that for the Attorneys to put their submissions in, if any. Yes, thank you, Mr Basten. Now, the ‑ ‑ ‑
MR BASTEN: I am sorry, there was just one other matter. There was a novel point raised concerning the operation of section 54, I think it was, which it was thought was adopted by section 415 of the Migration Act so as to apply an obligation imposed on the Minister to the Tribunal. May I simply say two things. Firstly, we resist the interpretation. We say that is not in accord with the structure of the Act. Secondly, we say that even if it were correct that such an obligation were adopted, it was fulfilled in this case.
GLEESON CJ: Thank you. Mr Game, you have right of reply in the writ proceedings, I think.
MR GAME: Could I just mention one matter. The passage that is referred to at page 111 refers to the prosecutor being a member of an opposition group. That has to be understood in the light of what appears at page 102, namely, that he and others formed a group known as the student council, that they met once a week and that they organised a protest march and so forth. So, that is the content of what he was.
There is just one other matter which is – I have not had time over the luncheon adjournment to address the amendment to the notice of contention and I would ask for leave to file an amended notice of contention that refers to the appropriate provisions as I previously referred to this morning.
GLEESON CJ: Yes, we will have a limited time within which you do that and give Mr Basten a further time. Would seven days suit you and then a further seven days, Mr Basten?
MR GAME: Yes, your Honour.
MR BASTEN: May it please your Honour.
GLEESON CJ: Very well, we will impose those limits. We will reserve our decision in this matter and the Court will adjourn.
AT 3.41 PM THE MATTER WAS ADJOURNED
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