Herijanto, Muin, Lie v RRT

[2000] HCATrans 363

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S97 of 1998

B e t w e e n -

HERIJANTO (As the Representative of the Plaintiffs listed in the Schedule)

Plaintiff

and

REFUGEE REVIEW TRIBUNAL

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Third Defendant

Office of the Registry
  Sydney  No S36 of 1999

B e t w e e n -

MUIN (As the Representative of the Plaintiffs listed in the Schedule

Plaintiff

and

REFUGEE REVIEW TRIBUNAL

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Third Defendant

Office of the Registry
  Sydney  No S89 of 1999

B e t w e e n -

NANCY LIE (As the Representative of the Plaintiffs listed in the Schedule

Plaintiff

and

REFUGEE REVIEW TRIBUNAL

First Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Defendant

COMMONWEALTH OF AUSTRALIA

Third Defendant

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 AUGUST 2000, AT 10.00 AM

(Continued from 17/8/00)

Copyright in the High Court of Australia

___________________

MR BASTEN:   I think Mr Robinson wanted to put something further to your Honour.

HER HONOUR:   Yes, certainly.

MR BASTEN:   Might I say that when he is finished, I hope to have some material in writing to give your Honour which, hopefully, will abbreviate the submissions I need to make.

HER HONOUR:   Thank you.  Yes, Mr Robinson.

MR ROBINSON:   With your Honour's leave, there is one matter which I did not fully address your Honour on, yesterday.  Your Honour asked me to take your Honour to the authorities that go to the proposition if a matter does not appear in a tribunal's written reasons, then it was not considered.  Now, I did take your Honour to the two High Court authorities, his Honour Justice Stephen in Kentucky Fried Chicken and to his Honour Justice Brennan in O'Brien's Case.  Now, I did not take your Honour that one extra step, to a decision of his Honour Justice Deane and Justice Fisher in O'Sullivan's Case.  If I could first take your Honour to - well, I can tell your Honour that at the page I took your Honour to at 446 of O'Brien, Sullivan, at the pages I am about to take your Honour to, were expressly referred to by his Honour Justice Brennan and adopted by him.  That appears at 446 at about point 3 of the page that I took your Honour to yesterday.

Your Honour has O'Brien?

HER HONOUR:   Yes.

MR ROBINSON:   Page 446.

HER HONOUR:   Yes, I have seen that.

MR ROBINSON:   From the third line:

If a failure to give adequate reasons for making an administrative decision warrants an inference that the tribunal has failed in some respect to exercise its powers according to law -

for a number of reasons -

the court may act upon the inference and set the decision aside.

Now, there, O'Sullivan v Department of Transport is cited at three particular pages, and I should take your Honour to that.  That case is at tab 9, Sullivan v Department of Transport (1978) 20 ALR 323. The headnote in that case fairly, in my submission, summarises what it was about. In short, a pilot, an army pilot had a commercial pilot's licence and another licence under the Air Navigation Regulations. He was hospitalised; diagnosed with a psychotic illness, and it was directed that he should not fly aircraft. In his application to renew those licences, they were refused by the department on medical grounds, and the department had not considered a conditional licence provided for.

The applicant applied to the AAT.  He represented himself at the hearing.  The short of it is, your Honour, the tribunal did decide that he should not have a licence but did not consider the question of whether or not he should be given a conditional licence.  They mentioned it but did not consider it in their reasons.  At line 40, on the first page:

s 43(2) of the Administrative Appeals Tribunal Act 1975 (Com) provides:  "The Tribunal shall give reasons in writing for its decision –

and so on.  That is fairly similar to 430 of the Migration Act, the latter being much more detailed than that provision.

It was held there that the doctor who treated the applicant, his evidence would have been relevant.  But over the page, the applicant had not been denied natural justice.  The headnote summary at (v) on the next page, 324, encapsulates the principle:

In the Tribunal's reasons for decision there was an absence of reference to or analysis of the relevant evidence and material factors on the question of the grant of a conditional licence.

And Justices Deane and Fisher said that.  I should also say that Justice Smithers also expressed general agreement with their reasons.

The proceedings therefore:

miscarried in that the Tribunal failed to deal, by reference to relevant considerations, with a matter which arose for determination and which it purported to determine.

Now, the pages that his Honour Justice Brennan referred to are at 348, that is in the decision of Justice Deane, from about point 5 on the page, "The only reference to the possible grant of licences", for the remainder of that page, and over the page to about line 33, "In the result, the appeal should be allowed".  So, I would ask your Honour to read the second half of 348 and the top half, as it were, of 349. 

In addition, his Honour Justice Fisher, at 352, in the whole of the second paragraph there at 352 also states the principle neatly.

HER HONOUR:   Yes.

MR ROBINSON:   His Honour Justice Deane at line 5 on 349 says quite plainly:

The absence of any reference, in its decision, to the unsatisfactory state of the evidence as to the appellant's current medical condition -

and a number of other reasons led his Honour to decide:

that the Tribunal did, in truth, fail to penetrate the camouflage which tended to conceal -

the real questions there.

So, this constitutes much better, as it were, authority for the primary submission on the inferences.  It does not go to the other submissions that would give your Honour the confidence in this regard but, as a freestanding principle, in my submission, it is well established.  They are my submissions, your Honour.

HER HONOUR:   Yes.  Thank you, Mr Robinson.  Yes, Mr Basten.

MR BASTEN:   Your Honour, we have some revised draft statements of fact which my friend has prepared.  Perhaps I should let your Honour have them because it may become relevant in a moment to indicate where we are going.  I have not myself had a chance to check them for accuracy yet.

HER HONOUR:   Yes, thank you.

MR BASTEN:   Your Honour, the matters which I was intending to address were the following:  firstly, in relation to paragraphs 34 and 40 - I hope the numbering has not changed - of the draft statement of facts, for example, in Herijanto - that is where those paragraph numbers are taken from - I need, I think, to address your Honour on the inference which my friend seeks to have ‑ ‑ ‑

HER HONOUR:   Well, there are really two questions, are there not:  one, whether one should simply state the facts and leave it for the Full Court to determine whether an inference should be drawn?

MR BASTEN:   Yes.

HER HONOUR:   Or, otherwise, whether to draw the inference?

MR BASTEN:   Yes.  We would be content, if your Honour were minded to state the matters for the - - -

HER HONOUR:   Yes.  Well, you had better address me on both issues.

MR BASTEN:   I will address your Honour on both of them.  Might I say that the written submission, which I hope is coming up in a moment, addresses the latter question which was what Mr Robinson addressed yesterday.

The second matter which I was intending to take your Honour to was the question of adverse materials and, again, we have two sets of written submissions, one in relation to Herijanto and one in relation to Muin.  What your Honour suggested to us yesterday was that it might be possible to categorise the relevant documents and we have sought to do that in each matter by reference to the finding to which they might go. 

Perhaps if I could start with Muin.  I can hand up some notes to your Honour in relation to that matter.  These are the facts as we would put them to your Honour.  The Practice Direction is, of course, the source of the obligation.  That is dealt with in the draft statement.  There is no evidence the plaintiff was aware of the Practice Direction so the inference is that he was not.  Then we have listed a number of findings which appear to us to be adverse to the plaintiff's case and given references to them which have come from exhibit B2, and your Honour will see there are (a) to (g) findings.  Perhaps the most critical one, ultimately, will be 3(g). 

Then in paragraph 4 we have sought to identify whether the Tribunal expressly referred to any documents in reaching those particular findings.  For example, in relation to 3(g) there are a number.  In paragraph 5, we have gone to the remaining documents in the schedule and asked, albeit not expressly referred to, whether they are capable of supporting any of the adverse findings, and we have identified four which appear to be capable of supporting finding 3(g).  Then paragraph 6 seeks to exclude three other documents for, perhaps, technical reasons.

The final two pages of the submission set out the various documents note which findings we think they might go to, and refer in the final column on the right to the page reference in exhibit B2.  There is a reference to MPB but I think that should be MFD, which would mean that it is exhibit B2, I think, as I understand it.  The penultimate column on page 3 says, "whether they were referred to by Mr Robinson".  Your Honour was taken to some of the documents but not all of them.  In relation to many that your Honour was not taken to, we say they do not readily give rise to an inference relevant to any of the adverse findings we have identified.  So that it may be that they can simply be ignored.  There are, as your Honour will see, 25 separate documents which are set out individually there.

Now, your Honour, I think this is, in substance, a submission on which your Honour would need to rule, as I understand it.  There is a difference between the parties as to whether these documents are properly characterised but this seems to us to be the most appropriate way to characterise them.  Ultimately, of course, if they do not go to a particular adverse finding, we would say they would be immaterial and, therefore, the failure to provide them would not be a matter of which the plaintiffs could complain.

Your Honour, we have done a similar exercise in relation to Herijanto which is shorter because there are few adverse findings and fewer documents, and perhaps I can hand that up to your Honour when it arrives.  It has not arrived yet, I am afraid.

HER HONOUR:   Yes.

MR BASTEN:   Now, my friend has not had an opportunity to see this either, so perhaps if I merely leave that submission and he may wish to say something more about it later. 

The other matters which need to be addressed, other than the inferences concerning whether the Tribunal read or considered the Part B materials, are, I think threefold, and perhaps I can deal with them, as we do not have any submissions to come in relation to them.  Firstly, there is a reference in paragraph 17(a) of the draft statement to a finding which is not agreed.  It is one in relation to which - I am sorry, I am dealing with Herijanto - we do not agree because, firstly, we think it may not be the appropriate question and, secondly, it was not a matter which would properly be before this Court if that is right. 

The question is an objective one as to whether the Part B documents were relevant to the review of the delegate's decision. 

HER HONOUR:   Well, is it not a question whether it contained material supporting the application?

MR BASTEN:   Well, that might be one question, your Honour, and that, in a way, is dealt with by the submission that I have just adverted to.  There is a second question which is perhaps a preliminary question which is agreed in 17(b) and (c).  If I might take your Honour back:  for the purposes of sections 424 and 418, what needed to be given to the Tribunal was that which the Secretary considered relevant.  We acknowledge that the delegate was, for this purpose, delegate of the Secretary and we acknowledge that she considered that these documents would be relevant.  Whether objectively they were relevant to the Tribunal's decision is not a matter that the statute requires assessment of and, with respect, we would say would therefore be an irrelevant consideration, acknowledging as your Honour has pointed out that for the purpose of the other argument it may be necessary to identify - - -

HER HONOUR:   This, of course, relates to the breach of statute, does it not?

MR BASTEN:   Yes, I think so.

HER HONOUR:   And that is what it goes to.

MR BASTEN:   Yes.  That is why it comes here in the statement of agreed facts rather than at a later stage.

MR ROBINSON:   There is a natural justice limb to it as well.

HER HONOUR:   Yes.  What is the section I need to look at?

MR BASTEN:   Section 418, I think, is the first:  Section 418(3), if your Honour has the - - -

HER HONOUR:   Yes, I have it.  Now, the question is - did you say you concede that - - -

MR BASTEN:   We concede that in relation to all of the Part B documents in 17(c). 

HER HONOUR:   Well, the relevant thing is it was considered by the Secretary.  That is the third defendant, is it?

MR BASTEN:   Yes. 

HER HONOUR:   The problem is about "relevant" and whether there is a better word.

MR BASTEN:   Well, the word "relevant" is the statutory provision in relation to the Secretary's satisfaction - - -

HER HONOUR:   But you have that.

MR BASTEN:   We have that.  "Relevant" in 17(a) is presumably objectively relevant in the view of the Court, if it is a matter for determination, as opposed to the view of the Secretary.  We do not understand why my friend needs that.

HER HONOUR:   Well, to found the natural justice argument.

MR BASTEN:   Yes, and in that regard - - -

HER HONOUR:   But in that regard - - -

MR BASTEN:   We put our submissions in relation to - - -

HER HONOUR:   Well, a question for Mr Robinson to consider and for you to consider is the documents were documents which contained material which, if accepted, could support the applicants' claim to refugee status.  Will that do?

MR ROBINSON:   That would be suitable, your Honour.

HER HONOUR:   Or claim to be a refugee.

MR BASTEN:   Yes.  Well, when your Honour says "the natural justice argument", it must be that - this being country information, that it was favourable material, in the sense we discussed yesterday, and was not taken into account.

HER HONOUR:   Yes.  Well, that is - - -

MR BASTEN:   And we deal with that separately.  That is all I am really saying.

HER HONOUR:   Yes.  Now, at some point, if one were to do it that way, one would have to annexe the documents.  There would be a need to identify the documents that contained that material.

MR BASTEN:   Yes, and it would be necessary to look at each individually, we would say.

HER HONOUR:   Well, that might be a matter for the Full Court.

MR BASTEN:   Yes.  Well, that is ultimately what we would say, your Honour, because it depends upon how it is relevant to a legal issue before the Court.

Your Honour, the other aspect of, as it were, the minor points which were discussed yesterday, I think, is paragraph 20 on which my friend addressed.  "Not all of the documents contained on the CISNET database", is the first sentence, "comprised the full text".  As we said briefly yesterday, if that is in some way relevant then it really requires one to look at the individual documents and say what the point is.

HER HONOUR:   At the end of the day, I do not think Mr Robinson said it was terribly critical.

MR BASTEN:   No.  He took your Honour to one document in relation to that first sentence and I think to none, really, in relation to the others.  We would say that if one needs an inference to be drawn in relation to this material, then those documents should be before the Court and the relevance of the inference might be explained.

The other minor matter, your Honour, was paragraph 31, again, in the Herijanto statement.  The purpose of the words in square brackets, I think was not addressed yesterday.  I am not sure whether it was pursued.

HER HONOUR:   No, it was not.

MR BASTEN:   And we do not understand the relevance of it.

HER HONOUR:   Yes.  Well, Mr Robinson can come back to that in reply.

MR BASTEN:   Yes.  Sorry, there is one other matter I have not put in writing, your Honour, and perhaps I should address.  Paragraphs 48 and 49 are the subject of two matters of disagreement.  Might I take your Honour first to paragraph 47.  In substance, what these three paragraphs seek to do, as we understand it, is to form the basis of an argument that the failure to accord procedural fairness is material in the sense that the plaintiff, if aware of certain things, would have done certain things.

Now, that would ultimately, I suppose, possibly go to the question of whether or not relief should be refused on discretionary grounds.  We do not have any problem with some form of factual material going to that point but for the reasons which I think became obvious yesterday, paragraphs 48 and 49 are in terms which go beyond that which was necessary and perhaps are ultimately inferences which need to be addressed by the Court if that issue becomes one of particular relevance.  But the factual circumstances as to what the plaintiff says he would have done are set out in paragraph 47 and they were in his affidavit and we have not sought to dispute them.  So, we say 48 and 49 really are not necessary for my friend's case at this level.

HER HONOUR:   Well, they may be really tied up in the ultimate question for the Full Court, rather than matters to be determined at this point.

MR BASTEN:   Yes, that is so.  As your Honour, I think, mentioned yesterday, 49(b) is placed far higher than he needs to place it.

HER HONOUR:   Yes.

MR BASTEN:   Your Honour, I think those are the minor matters.  I now have the further submissions.  Firstly, the adverse material submissions in relation to Herijanto.  Might I hand those up to your Honour.  I am sorry, we had printer problems, your Honour.  Might I just replace that with another version which I think is easier to follow.  This largely follows in a simpler form that which we did with relation to Muin and which I took your Honour through. 

Paragraph 1 sets out the five matters which we anticipate constitute adverse findings.  I wonder if I should perhaps briefly – does your Honour wish me to take you to the Tribunal’s decision to explain how - - -

HER HONOUR:   Yes.

MR BASTEN:   It might be of some assistance, I think.  These are contained in exhibit A2.  Your Honour, the Tribunal’s decision comes in a number of places.  The references which I have given your Honour are in the version which appears at page 25 in volume 2 of exhibit A – MPB.

HER HONOUR:   Yes, at page 39, I have it.  No, 32 up the top, sorry.  We have numbers top and bottom.

MR BASTEN:   We have.

HER HONOUR:   And then we have – yes.  Well, I have it anyway.

MR BASTEN:   Can I ask your Honour if the number down at the bottom right is 25?

HER HONOUR:   No, 39.  But up the top it says 34 but it is really 32, I think, or maybe not.

MR BASTEN:   Is this the matter which is marked on the front “Exhibit ‘MPB-2’”?

HER HONOUR:   It is “Exhibit ‘MPB-2’”, yes.

MR BASTEN:   All right. 

HER HONOUR:   It may be reproduced twice.  It is reproduced twice.

MR BASTEN:   Yes, it is, yes.  It is partly because it is in the file and partly separately, I think.  But in any event, I have given your Honour references to pages 33 and 35 but if your Honour wishes to use the typescript version prepared by the Tribunal, the typed numbers; there is a heading “Findings and Reasons” which, I think, is towards the bottom of typescript, page 10, and over the page at typescript, page 11, in the middle of the page:

Furthermore, the Tribunal is satisfied on the evidence of the applicant, and having regard to evidence from independent sources –

and reference is made to an earlier discussion –

that he has not been prevented from practising his religion and that there is not a real chance that he will be prevented from practising it in the reasonably foreseeable future. 

That, we identify as the first adverse finding in relation to Christianity, his religion, and we have identified that in the submissions at l(1)(a).

The second adverse finding appears in the previous paragraph which actually deals also with the question of not practising, but briefly:

The applicant has not shown that he has been prevented from practising his religion; nor has he shown that he has suffered serious harm because of his religion.  The Tribunal finds that the incidents of discrimination and harassment in daily life feared by the applicant for reason of his religion are relatively minor and cannot be considered to be a serious punishment or penalty or some significant detriment or disadvantage.  They do not amount to persecution –

That, we say, is the second adverse finding and, that, in the submissions, is 1(1)(b).

In relation to ethnicity, at point 7 on the same page, just into the last full paragraph on the page, which commences “The applicant is an ethnic Chinese”:

Putting his somewhat inchoate claims at their highest, he is claiming to be afraid of general discrimination and of being caught up in communal violence.  The Tribunal notes that the Department of Foreign Affairs and Trade expects that sporadic disturbances will continue in a number of areas – including possibly the major cities and that such disturbances might take on an anti-Chinese character.  There are therefore some grounds for the applicant’s fear –

in that regard.  Now, in case that reference to “sporadic disturbances” be thought to be an understatement, we have picked that up as an adverse finding in (2)(a).  Then, further down the page, three lines up from the bottom:

the Tribunal is satisfied that harm that the applicant might suffer in such an incident would not be persecution for purposes of the Convention since the Federal Court has held that incidental violence, without more, will not constitute persecution –

and there is reference to a decision of the Federal Court.  We have identified that as (2)(b), harm suffered would not be for a Convention reason.  And then over the page, and the final page of the Tribunal’s reasons, after some discussion of the Secretary’s submission, the second sentence on the page:

The Tribunal notes the Secretary’s submission that a presumption should apply that Indonesia is willing and able to protect its nationals.

That submission is rejected.  But after reference to the A, B and C decision, the Tribunal goes on:

The Tribunal does not presume that Indonesia is willing and able to protect its nationals, but, having regard to the evidence from independent sources, is satisfied that the Indonesian Government is willing and able to accord effective protection to its nationals of Chinese ethnicity.

So, that we say, is the third of the adverse findings to the plaintiff in relation to his claims, and that is 2(c) in our submission.

HER HONOUR:   What difference does 2(a) make?  It seems to me a little ‑ ‑ ‑

MR BASTEN:   Well, we have been generous, your Honour.  I mean, it seemed to us that 2(a) was a positive finding in favour of the plaintiff.

HER HONOUR:   No, I am sorry, I am going to the next paragraph.

MR BASTEN:   I am so sorry.  This picks up the Practice Note upon which the plaintiff relies and, as we read the Practice Note, that is one of the exclusions and, therefore, presumably an exclusion from any material that the plaintiff would have a legitimate expectation in relation to.  So, we have sought to assess the material according to what we understand the claim of legitimate expectation, if upheld, would amount to.  Each of those ‑ ‑ ‑

HER HONOUR:   I do not – maybe I have confused myself utterly.  The adverse materials were materials that were referred to in the Tribunal’s decisions?

MR BASTEN:   Yes.

HER HONOUR:   That were not made available.

MR BASTEN:   Yes.

HER HONOUR:   Well, why do you say:

(b) not referred to in the decision of the delegate –

in 2(b)?

MR BASTEN:   Yes.  May I take your Honour back to the pleading for a moment in order to explain what I have done?

HER HONOUR:   Yes. 

MR BASTEN:   I think the second further amended statement of claim in the Herijanto matter is that dated 15 March 2000.  Your Honour, the pleading in relation to adverse material starts on page 4 at paragraph 8.  The first paragraphs on that page are by way of background.  Page 5 notes in paragraph 14 a number of practice directions of which, probably, the last is the relevant one, but perhaps if I can simply follow through the logic of it. 

Paragraph 15 pleads paragraph 5(b) of the first two practice directions.  Paragraph 16 pleads the third, fourth and fifth practice directions, and I have gone to the fifth because that was the one dated 25 June 1997, which is one year before the decision but no doubt applied.   Paragraph 16 sets out what it provided, relevantly, “Applicants will be given an opportunity to respond to any relevant and significant material which is or may be adverse”, “not possible to prescribe a single procedure”, “it will be for the presiding member in the individual circumstances to consider the appropriate stage”, “generally sufficient to identify source.”  I need not trouble your Honour with that.  “To ensure the applicant has an adequate opportunity to respond” and so on, and then over the page there is some material in bold which I need not take your Honour to.

Then the final paragraph, “The applicant will not normally be provided with any material which is referred to in the primary decision or is otherwise reasonably available to the applicant.”  So, that was the basis on which we addressed these issues, that the legitimate expectation could not, presumably, go beyond what the terms of the Practice Direction envisaged.

But can I say this, your Honour, that having explained what we are doing in the submission, we then consider each of the document at paragraphs - - -

HER HONOUR:   My problem is with 2(b).

MR BASTEN:   Yes.  Well, that is the exclusion expressly identified in the final paragraph of the Practice Direction:

will not normally be provided with any material which is referred to in the primary decision - - -

HER HONOUR:   I see.

MR BASTEN:   I have called that “the decision of the delegate”.  I am sorry, I had not picked up that – “or is otherwise reasonably available”.  I am afraid I have used the word “readily available” but that is meant to pick up those two qualifications.

HER HONOUR:   There is no issue, is there, that the adverse material is material which was not referred to by the primary decision maker?

MR BASTEN:   Yes.

HER HONOUR:   Was referred to by the Tribunal and the substance of it was not communicated to the applicant.

MR BASTEN:   Yes.

HER HONOUR:   And it must also be the case, must it not, that that material that came from the Secretary from DFAT would not reasonably be available to the plaintiff?

MR BASTEN:   Yes.  The information contained in it might be but the document itself might not.  I am reminded it came from the Secretary of the Department of Immigration, of course, but the material your Honour, I think, had in mind were the Department of Foreign Affairs and Trade Cables.

HER HONOUR:   Yes.

MR BASTEN:   Your Honour, we then looked at the various documents to which your Honour was taken yesterday and assessed them according to those principles, and just picking up the point that your Honour raised with me:  document – I am not sure whether I have made a mistake in numbering the documents because two had the same number, I think.  They were not distinguished in my friend’s lists that he gave your Honour yesterday.  The DFAT cable referred to in paragraph 5 was cable JA 18274 which was one of the cables which dealt with President Habibie’s statement about his intentions.

HER HONOUR:   The ABC will be pleased to know it has so many viewers and, particularly, people whose first language is not English, I imagine.

MR BASTEN:   Of course.  I mean these are the sorts of issues which we - your Honour may wish to rule on that or not.  I mean, it is a question of ‑ ‑ ‑

HER HONOUR:   Yes.

MR BASTEN:   The problem we foresee, your Honour, is really the one your Honour adverted to before, namely, that it may be that if the legitimate expectation is identified and an obligation is imposed in particular terms, some of these questions may become irrelevant.

HER HONOUR:   Well, it may be that this is natural justice anyway or procedural fairness, quite independently.

MR BASTEN:   Well, that is not pleaded in those terms at the moment.  That is why we have addressed it in this way.

HER HONOUR:   Yes. 

MR BASTEN:   I mean, if my friend were seeking to put an argument in relation to natural justice, absent the Practice Direction, then we would respectfully say we should be told that.  The pleading that I took your Honour to is the pleading that we have and that is how it is put.

I suppose what your Honour puts to me merely indicates our concern, namely, that your Honour can make findings of fact or draw inferences as requested but there may be something awkward about that exercise if, at the end of the day, the Full Court decides the obligation is framed in different terms.  We do not see any great difficulty in putting these documents before the Full Court.  In fact, they probably should go to the Full Court whatever happens. 

HER HONOUR:   Yes, they should be annexed.

MR BASTEN:   And the Full Court can make its own assessment.  But what I have sought to do in this document is simply to say to your Honour what we say about them according to these principles, and, as your Honour has already read paragraphs 5 and 6, I need not labour the point.

Now, I do not know that I need take your Honour through that material in any more detail.  Your Honour went to the various documents yesterday.  I do not wish to reagitate the nature of the documents.  I suppose, having said that, if I might come back to the question that your Honour asked me this morning.  Our primary position would be that in relation to this material, your Honour would not make findings of fact, if that is what they are, or draw inferences but would simply allow the material to go to the Full Court for the Full Court to consider with the legal arguments.

HER HONOUR:   Again, it really may be simply a question of describing it and annexing it, as I think I said earlier.

MR BASTEN:   Yes.  Well, we are content with that course, your Honour, and that is why we have sought to describe them in accordance with the findings to which they appear to be relevant, and that seems to us to be perhaps a helpful way of doing it.

HER HONOUR:   Yes.

MR BASTEN:   I did not wish to say any more on that point.  If I might move on unless there was something that your Honour - - -

HER HONOUR:   We do not have adverse materials in Lie, do we, if I have got that right?

MR BASTEN:   No, that is the difference.

HER HONOUR:   Yes. 

MR BASTEN:   Your Honour, I was going to move to the question of the inferences that my friend sought to draw in relation to paragraphs 34 and 40.  I have a submission in relation to that in relation to Herijanto.  That is the matter to which, I think, your Honour was taken yesterday specifically.

HER HONOUR:   Just one moment.  I have too many papers.  I have found what I was looking for, thank you, Mr Basten.

MR BASTEN:   Yes, your Honour may need the draft statement of facts.  I think at various times yesterday my friend said, “did not have before him, did not consider, did not read”, but for what it is worth, paragraphs 34 and 40 are each in the terms that I have set out in paragraph 1 of the submission.
Would it be convenient if I let your Honour read through this document or ‑ ‑ ‑

HER HONOUR:   Yes.  I was still back in the facts though.  Yes?

MR BASTEN:   Your Honour, the only point I was going to expand upon was that in paragraph 7.  Could I hand up the material which is referred to in that paragraph.  It really concerns the application of the rule in Jones v Dunkel in the present circumstances.  I think I had given your Honour the reference to Cross on Evidence taken from the Service in the submission.  The passage from the hard version, which I have given your Honour a copy of, is page 36 and it is the first full paragraph at point 2 on the page:

Fourthly, the rule in Jones v Dunkel does not apply where the witness not called is the party’s solicitor, at least where the evidence which is in consequence not given is privileged and the privilege has not been waived.  This is because if the solicitor gave evidence on the subject of privileged communications the privilege would be lost, and the court will not permit the destruction of the privilege by this back door.

The authorities which support that proposition and which we say give rise to an analogous situation here derive from Wentworth v Lloyd which I think we have given your Honour a copy of.

HER HONOUR:   Yes.

MR BASTEN:   Might I take your Honour, perhaps, directly to the relevant passage on page 689 in Lord Chelmsford’s judgment.  There is a reference in the second column halfway down to Bolton v the Corporation of Liverpool and a quotation follows that which I need not read to your Honour, and his Lordship continues:

The exclusion of such evidence –

that is privileged evidence –

is for the general interest of the community; and therefore to say that when a party refuses to permit professional confidence to be broken everything must be taken most strongly against him, what is it but to deny him the protection which for public purposes the law affords him, and utterly to take away a privilege which can thus only be asserted to his prejudice.

That is, with respect, we would say, as it were, the explanation which would not entitle one to go to a Jones v Dunkel point to establish this fact. 

That aspect has been applied in the second of the cases your Honour, Payne v Parker, a decision of the Court of Appeal in New South Wales (1976) 1 NSWLR 191, and although I have given your Honour the decision, the only relevant passage is at 202. Just below the letter D there is a paragraph (9) in Justice Glass’s judgment. He is considering Jones v Dunkel in terms of principle:

The third condition is satisfied if no explanation is offered for the absence of the witness, or the tribunal thinks that the explanation given is unsatisfactory.  The explanation tendered may be that the witness is ill, overseas, dead or refuses to waive his privilege.

And his Honour there refers to Wigmore which supports that proposition.

Because the editor of Cross has referred, by way of comparison, we have included in the bundle The Crown v Wilmot, a decision of the English Court of Appeal,(1989) 89 Cr App R 341. This is a somewhat curious case in which the defendant went into the witness box at his trial and asserted consent, in effect, to a charge of rape by a prostitute and said it that it was part of a deal with her. That was suggested to him in cross-examination to be a recent invention and there was actually comment to the jury that if it had been the case that it were not a recent invention he might have called his solicitor to give evidence that he had mentioned this to his solicitor in the past. Page 349 at the top of the page sets out the second ground of appeal. I do not know that it is of much - - -

HER HONOUR:   Well, other than the principle upon which you rely, there are many reasons to think that that might - - -

MR BASTEN:   There are.  I think Mr Heydon, or Justice Heydon, perhaps, thought it might be inferentially against the proposition which he has put in his text but we would say that it can be distinguished for a number of reasons, but I thought we should give your Honour that authority.

Your Honour, the other document that I have handed up with that bundle is a copy of section 129(1) of the Evidence Act.  This was not actually a matter which your Honour needed to consider on the last occasion.

HER HONOUR:   Well, I think nobody bothered to tell me about it.

MR BASTEN:   We did not, your Honour, and we should have, probably.

HER HONOUR:   I do not know.  

MR BASTEN:   It was not directly in point at that stage.  Section 129(1):

Evidence of the reasons for a decision made by a person who is:

(a) a judge –

et cetera –

or the deliberations of a person so acting in relation to such a decision, must not be given by the person, or a person –

or somebody –

under the direction or control of that person.

Your Honour will recall that this, we would say, is part of the immunity picked up in relation to “members”.  Subsection (5) provides – perhaps I should deal with them.  Subsection (2) prevents a document being used in that way.  Subsection (3) provides an exception for the “published reasons for a decision”.  Subsection (4) deals with “a member of a jury”.  Subsection (5) provides some exceptions.  Some of them are not easy to follow, to be honest.  Exception (a) and (b) are understandable; (c):

by way of appeal from, or judicial review of, a judgment, decree, order –

why one would make an exception there is not entirely clear.

HER HONOUR:   But it seems to have been done though.

MR BASTEN:   Yes, it has been done.  We accept that.  The question is whether this proceeding is properly within the description of “judicial review”.  We suggest in that written submission that it is not.

HER HONOUR:   What do you think it is if it is not judicial review?

MR BASTEN:   What we have suggested in the submission, your Honour, is that judicial review in a Commonwealth Act would readily pick up ‑ ‑ ‑

HER HONOUR:   It says:

appeal from, or judicial review of, a judgment, decree, order or sentence of a court - - -

MR BASTEN:   Yes.  Well, it does not seem to be that.

HER HONOUR:   No, but that is your better argument, is it not?

MR BASTEN:   Probably, yes, your Honour, yes.  How one applies “judgment, decree, order or sentence” to a tribunal, I am not sure.

HER HONOUR:   Well, it does not.  It says “of a court”, does it not?

MR BASTEN:   Yes.  Mr Robinson is suggesting “court” includes “a tribunal”.  “Australian court” is not defined in that way.  I see:

a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence –

I suppose the Tribunal might be thought to come within that terminology in a literal sense but the rest of the definition seems to make it inappropriate in this respect.  In any event, your Honour, it is really a matter of the underlying policy, we would say, of the immunity which would resist the drawing of the inference from the failure of the Tribunal member to give evidence.

Unless there is anything else I should deal with, your Honour, I think I have dealt with the matters which my friend raised yesterday.

HER HONOUR:   Yes.  Well, before you sit down, I think perhaps I should say this - and before Mr Robinson addresses in reply - I suppose, really, what I should be concentrating on more than anything is how the issues should be framed for the stated case or referred question.

MR BASTEN:   Yes.

HER HONOUR:   So, in the end, that may not result in findings precisely in terms of the "not agreed" bits in the agreed statement of facts. 

MR ROBINSON:   If that were the case, they could stay as they are, your Honour, perhaps.

HER HONOUR:   What, the agreed statements of fact?

MR ROBINSON:   Yes.

HER HONOUR:   Yes, we will see how that goes.  But I am just saying, for example, as I understand it, the parties are going to provide a description of the Part B documents, is that not right?  When I left you yesterday - - -

MR BASTEN:   Well, we amended the paragraph.

HER HONOUR:   You did, thank you.  I have not seen that yet then.  I did not go to that today.  What paragraph was that?

MR BASTEN:   A new paragraph 45, your Honour, which, I think, avoids the problem rather than addresses it.

HER HONOUR:   Yes, thank you.

MR BASTEN:   Your Honour said something yesterday which suggested that perhaps we should reconsider the questions in the draft which I handed to your Honour.  We have not done that.

HER HONOUR:   Well, Mr Robinson has because a fax arrived - - -

MR BASTEN:   This was something I could not print off, yes.

HER HONOUR:   You need not express a view on them.

MR BASTEN:   No, I have not read this document yet.  I have nothing further to say at this stage.

HER HONOUR:   Thank you, Mr Basten.  Now, Mr Robinson, do you not plead straight out breach of procedural fairness with the adverse material?

MR ROBINSON:   Your Honour, we say we do and that is in the generality.  We also say, in the specific, that it is a kind of procedural fairness that is enlivened by a legitimate expectation being created.  But, your Honour, in my submission, the pleading as presently cast does not rule us out from saying that there was a bare denial of natural justice in the circumstances.  So, remitting or referring a question to the Full Court in terms that your Honour suggested generally yesterday which avoids the formality of making a finding in terms but permits it of simply saying whether there was a denial of procedural fairness, in the circumstances, in my submission, is wide enough to encompass the plaintiffs' arguments.

HER HONOUR:   Well, it is your pleading I am worried about.

MR ROBINSON:   Your Honour, it is pleaded in the fashion that Mr Basten indicated and took your Honour to but, in my submission, it is wide enough to permit the first proposition that I mentioned to be put to the Court, your Honour, firstly, that it is the denial of natural justice in the premise; secondly, that it is a denial of natural justice because it is a decision made not in accordance with the legitimate expectation held by the plaintiffs.

HER HONOUR:   Yes, thank you.

MR ROBINSON:   Your Honour, could I say - I only wish to address your Honour very briefly on the - - -

HER HONOUR:   Mr Basten, you might need to think about that.

MR BASTEN:   We would, your Honour, yes.

HER HONOUR:   It does not seem to raise any new facts.  It just seems ‑ ‑ ‑

MR ROBINSON:   It is purely legal argument, your Honour.

MR BASTEN:   It would be a legal argument, I think, your Honour.

HER HONOUR:   I would not have thought there was any - - -

MR BASTEN:   I would need to take some instructions about that but I do not - - -

HER HONOUR:   I would not have thought there would be any prejudice in raising that specific question.

MR BASTEN:   Well, if it purely a legal argument, your Honour, no.  Obviously, there is time to deal with it.

MR ROBINSON:   Your Honour, in relation to the matters my learned friend has raised - - -

HER HONOUR:   Before you go to those - - -

MR ROBINSON:   Your Honour, I am not in a position, on my feet, to deal with my friend's written submissions on the adverse material in Muin and Herijanto.  That is the two documents he handed up.

HER HONOUR:   Do you want to do it in writing or do you want to come back on Monday, or do you want to come back this afternoon

MR ROBINSON:   Your Honour, I would prefer either option but I need time to sit down and analyse the documents.

HER HONOUR:   How much?

MR ROBINSON:   I would prefer a day, your Honour, but, if pressed, I can do it in two hours.

HER HONOUR:   No.  Can you do it in writing or - - -

MR ROBINSON:   I would prefer to do it in writing, your Honour.

HER HONOUR:   Yes, very well.

MR ROBINSON:   But it does require a reasonably sophisticated analysis of several hundred pages, your Honour.

HER HONOUR:   Yes.  I will give you until 10 o'clock Tuesday to put it in.  You do not need to come back?

MR ROBINSON:   No, your Honour, we do not.

HER HONOUR:   It will just be filed in the Registry by 10 o'clock on Tuesday morning.

MR ROBINSON:   Thank you, your Honour.

HER HONOUR:   But before you go to that, I have some problems, if I can take you to them.  I am looking at the Herijanto draft statement of facts dated 17 August 2000.

MR ROBINSON:   Yes, your Honour.  You wanted me to address on 31.

HER HONOUR:   Well, let us go to 49 - I will start at the back - paragraphs 48 and 49.  They are not findings of fact that you need, are they?

MR ROBINSON:   Your Honour, I have said all I can on that.  I can put it in submission.  I am not wedded to them as facts.  They have the character ‑ ‑ ‑

HER HONOUR:   They are ultimately tied up in the questions that you have now outlined.

MR ROBINSON:   That is correct, your Honour.  I press them as submission only, as self-evidence as - for example, my learned friend's submissions a moment ago on documents being available.  I can make that from the Bar table, your Honour.

HER HONOUR:   And 42(a), which I have left, I think you indicated earlier ‑ ‑ ‑

MR ROBINSON:   Well, the formulation that is in the draft referral that I have sent might be a happier formulation.

HER HONOUR:   Yes.  I had a formulation before but they were materials that - well, anyway, we will come to that.  There is no absolute necessity to characterise them as adverse other than - - -

MR ROBINSON:   No, your Honour, they were material of the kind talked about by the Practice Direction.  Yes, your Honour is quite right.

HER HONOUR:   It is really sufficient to say that they were materials which were contrary to the applicants' case.

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   And then we go to - - -

MR ROBINSON:   That also appears in relation to the 423 submissions, paragraph 51(a) and (d).

HER HONOUR:   Yes.  Now, there was something about whether Mr Herron constituted the second or third defendant - - -

MR ROBINSON:   That was 31, your Honour. 

HER HONOUR:   Does that have any bearing on anything really?

MR ROBINSON:   Your Honour, no.  I simply have chosen, in my drafting of that - the words in the brackets, I have chosen to reflect the language of 421(1) of the Migration Act.  In 421(1) of that Act, it says:

For the purpose of a particular review, the Tribunal is to be constituted, in accordance with a direction under subsection (2) -

which was made, we take it -

by a single member.

HER HONOUR:   If you have that in the Act, you do not need the last words.

MR ROBINSON:   Indeed, your Honour.  I cannot say it is of any - - -

HER HONOUR:   Yes, thank you.  Well, I think they are my problems.  Now, I will not distract you further.

MR ROBINSON:   We are happy to excise what is in brackets, your Honour.  That passage is now agreed.

Now, may I make some brief submissions in reply?

HER HONOUR:   Yes, thank you.

MR ROBINSON:   Firstly, my learned friend took your Honour to paragraph 17A.  Can I say that we agree with what fell from your Honour during my friend's submissions, that it is cast in this fashion so that it will be relevant to the natural justice limb, as it were, of the Part B argument.  It does not need to say "relevant to the review of Ms Betts' decision", it can say something along the lines of - there is an alternative formulation, your Honour, which - - -

HER HONOUR:   "If accepted, was capable of supporting - - -

MR ROBINSON:   - - - could be documents which could have supported the applicants' case.  But, in any event, in the circumstances, in my submission, it is an appropriate fact to go upstairs or it is an appropriate fact for the Court to take it into account.  I am in your Honour's hands on that.  I cannot say any more than I have said.

HER HONOUR:   Yes.

MR ROBINSON:   In relation to the submission of my friend generally on inferences in Jones v Dunkel, I only say this:  this is not a matter where the privilege, the judicial immunity that your Honour has decided upon in these proceedings, that is given to Tribunal members here by virtue of the Migration Act, it does not render their evidence privileged, your Honour, it only goes to compellability and it does not say anything - the Migration Act provision that your Honour decided upon - on judicial immunity.  It does not say anything about the character of the evidence should a Tribunal member choose to turn up and give evidence as was envisaged in Warren v Warren, the Court of Appeal case I took your Honour to yesterday.

So, it is not correct, in my submission, to characterise the judicial immunity of a Tribunal member as client legal privilege within the terms of 130 of the Evidence Act or whatever that terms means at common law.  It is not the same kind of privilege and, in my submission, there is no reason under the Evidence Act, in its terms, not applying here. 

Secondly, your Honour, my friend's submission might confuse your Honour's determination on the scope of judicial immunity here with the fact - the submission of ours that there is nothing to stop the Tribunal member from appearing and putting on an affidavit and leaving it at that.  The affidavit simply does not have to spell out the reasons for the decision; it does not have to go to explaining the reasons for the decision.  Most of this action in relevant respects, by the plaintiff, could be simply determined against the plaintiff by the delivery of the adducing of a straightforward affidavit which says, "We've read the material.  We considered it", perhaps, and I may not be permitted to cross-examine them on that, and that would be the end of it, your Honour.

There is nothing to stop them from doing that and there is no privilege that prevents them from coming to do that.  The privilege that is relevant is the immunity that prevents me from forcing them to come along and do that, your Honour.  So, it is an inappropriate analogy to talk about legal professional privilege and the other matters that my learned friend took your Honour to.  It is an entirely separate matter and the inference - Jones v Dunkel submission - is an entirely separate, unrelated submission.

Other than that, your Honour, other than wanting time to respond to the written submissions of my friend, I have nothing further.  I am content to take your Honour through the draft questions referred that I have drafted last night - - -

HER HONOUR:   I think it might be better if you speak to Mr Basten about them.

MR ROBINSON:   I would be grateful for the time to do that, your Honour.

HER HONOUR:   What I will be asking the parties to do - I will give a decision indicating what I think should happen in respect of these various matters and then I will ask the parties to agree on the questions in the

context of the agreed facts and whatever it is that I do in relation to the disputed areas.  So, I think that might be a preferable course.

MR ROBINSON:   Thank you, your Honour.

HER HONOUR:   I will just reserve my decision in this matter, and I think I should indicate at this stage, whatever happens here, the costs of these proceedings should be costs in the cause, should they not?

MR ROBINSON:   Yes, your Honour.

MR BASTEN:   Yes, your Honour.

HER HONOUR:   So, I will note that in due course.  If I can have your written submissions by 10 o'clock on Tuesday.

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   That is sufficient time, is it?

MR ROBINSON:   It is, your Honour.

HER HONOUR:   Yes.  Thank you very much.  We will adjourn now.

AT 11.16 AM THE MATTER WAS ADJOURNED