MIMA v Rajamanikkam and Anor S122/2001

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S122 of 2001

B e t w e e n -
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Appellant
and
NADASARA RAJAMANIKKAM
First Respondent
BALAMBIKAI RAJAMANIKKAM
Second Respondent

GLEESON CJ
GAUDRON J
McHUGH J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 14 NOVEMBER 2001, AT 11.44 AM

MR J. BASTEN, QC: If the Court pleases, I appear with MR S.B. LLOYD for the appellant. (instructed by the Australian Government Solicitor)

MR D.K. CATTERNS, QC: May it please the Court, I appear with my learned friend, MR N.C. POYNDER, for the respondents. (instructed by Craddock Murray Neumann)

GLEESON CJ: Yes, Mr Basten.

MR BASTEN: Your Honours, the concern raised by this case is that after this Court’s decision in Bond, it was generally thought that the statutory “no evidence” ground, while allowing challenges going beyond no evidence of the ultimate factual issue for the court as under the common law, was more confined than merely requiring an absence of evidence but if the Full Court judgment in this case is correct, the disappointed applicant who can isolate any fact or facts on which a decision-maker has based his or her conclusion, at least in the sense that it is not a peripheral fact, may come to the Federal Court and say: “I can prove with evidence on the balance of probabilities that that fact did not exist”, and thereby establish an error of law.

In our submission, the Full Court’s approach was wrong for a number of reasons. The first and perhaps clearest is that what was said to be the fact which did not exist was a primary fact supporting a credibility finding, which itself of course could not be a particular fact of the kind referred to in the statutory ground. Secondly, the decision is not relevantly based on that fact if the decision-maker identified a number of bases ‑ eight, in this case at least – of primary facts as justifying the inference. All one can ultimately say is that one or two of that number were not, on the view of the Federal Court, correctly found and could not be dismissed as merely of peripheral importance.

There are then a series of broader questions which are less clearly answered on current authority. These concern the relationship in a constructional sense of the general terms of the statutory ground with the specific gateways. Is it still necessary to say that there is no evidence to justify the ultimate decision as identified in section 475(1)(g)? If so, how can that apply when the ultimate decision is a want of satisfaction as to a matter, a state of mind which one would think requires no evidence at all?

Thirdly, where the particular fact is a conclusion that something did not happen or the fact did not exist, can the applicant reverse the clear words of the statute and prove that the fact did exist, is that the intended meaning? Finally, is it correct to say that there must be no evidence of the particular fact or can a court be asked to make its own assessment of that fact on the merits where there was, in fact, some evidence available to support it?

GLEESON CJ: On the matter of the relationship between section 476(1)(g) and section 476(4)(b), one of the submissions against you appears to be that 476(4)(b) is a kind of deeming provision and if 476(4)(b) is satisfied, then 476(1)(g) is deemed to be satisfied.

MR BASTEN: Yes.

GLEESON CJ: Is it necessary for the respondent to make that submission good in order to uphold the decision in the present case?

MR BASTEN: We think it is necessary but not sufficient, your Honour, because of the other matters I adverted to, but we do understand that to be a necessary element and that, of course, requires attention to the opening words of subsection (4), namely that:

The ground specified in paragraph (1)(g) is not to be taken to have been made out unless ‑ ‑ ‑

GLEESON CJ: But the respondent would read that as meaning, “The ground specified in paragraph (1)(g) is not to be taken to have been made out unless and is to be taken to be made out if” ‑ ‑ ‑

MR BASTEN: That is right, yes. That is where we differ as to the construction point. May I come back to that, your Honour, because one aspect of the terminology here in this particular respect is difficult, the interrelationship is not entirely clear, and that was one reason that I formulated the questions in the way that I did.

If it is convenient to the Court, before doing that, may I simply go briefly to the material upon which the case was based – the Refugee Review Tribunal decision which appears at page 214 of the appeal book – in order to identify precisely the way in which the matter had been put to the Tribunal and dealt with by the Tribunal. Firstly, the claims which were made relevantly commence at page 218 at line 20:

The applicant told the Tribunal that the first time he had problems with the Sri Lankan authorities –

and so on. In other words, the issue was whether the applicant had had relevant problems with the Sri Lankan Government authorities so as to raise a well-founded fear of persecution should he be returned.

Then at page 219 at lines 25, that paragraph, there is a key reference to a claim:

The applicant claimed that while he was working to earn money to leave Trincomalee he was arrested following the shooting of the village headman in April 1996. He claims that his surgery was searched and he was arrested as a “Jaffna Tamil who had moved from Jaffna recently.”

That is a critical passage in the claims. There is other material there which summarises the circumstances, some of which would go to support his fears; some of which would not. For example, on the next page, 220 at line 20, it is noted that:

While in Colombo he had registered with the Sri Lankan authorities.

That is just prior to his departure which suggested that he was perhaps not ultimately of interest to them. But, the key question on which the Tribunal thought this matter turned was whether or no he was arrested in April 1996. There was a secondary issue which is identified at page 221, namely, whether he could have been expected, reasonably, to relocate within Sri Lanka which would, if established, meant that he did not invoke the protection obligations of Australia under the Convention. At line 30 the paragraph indicates his evidence in that regard. He:

was asked why he could not return to Point Pedro or Jaffna -

in the north of Sri Lanka, and his evidence there is that he says it was not safe for him to do so, and so on. At line 50, he:

also claims that there is no civil administration in Jaffna.

That matter is significant because when one comes to dealing with the way it was dealt with in the Federal Court the assessment of credibility findings was treated as going indeterminately to those two issues. Could I then turn to the findings made by the Tribunal which are set out at page 230 and following. The Tribunal commences with its conclusion, in effect:

The Tribunal had a number of concerns with the applicant’s claim that he was of interest to the Sri Lankan authorities. The main problems faced by the applicant from the Sri Lankan authorities occurred in an incident in April 1996, approximately six weeks before he left Sri Lanka. There are range of factors, which when considered together . . . lead the Tribunal to doubt the applicant’s credibility. It is the number of difficulties with his evidence which in the end tell strongly against the applicant’s credibility.

After some consideration of the possible explanations for the vagueness or inconsistencies in the evidence, the Tribunal then sets out in a number of headings what it identifies as eight factors which go to the credibility issue. They start with “factor one” which is significant, at the bottom of page 230, which has two elements to it but involves, ultimately, misleading evidence given to the Department. The first element was that related to his receipt or otherwise of a pension from the Sri Lankan Government which might perhaps be of interest in relation to whether he was of interest to them, from an abusive point of view.

The second part of that ground at page 231 was what he had said to the Department about whether Point Pedro had been cleared of the Tamil Tigers or whether the government had failed to regain control over it. Then at line 15, the Tribunal says it:

is of the view that in relation to his evidence to the Department concerning his pension and the security situation in Point Pedro the applicant was attempting to give misleading evidence which would raise concerns about whether it would be reasonable for the applicant to return to Jaffna/Point Pedro or otherwise relocate.

I merely note in passing that that of course has nothing to do with whether he otherwise feared persecution because of his arrest in 1996. That is the matter which the Tribunal then attends to. Factor two is:

circumstances concerning his arrest and detention –

and as your Honours will be aware, although there were eight factors, the trial judge, Justice Einfeld, ultimately said that there was evidence that all of those factors were particular facts and none of them existed. In the Full Court only two of those criticisms were upheld and factors two, three and four were treated as not justifiably coming within the “no evidence” ground.

That takes one to factor five, which appears at page 233, and which relates to a statement made by the applicant in his declaration at line 45, on page 233, of 25 November 1996 where he claimed “his surgery was searched and he was arrested”, and this is a correct quote:

as a “Jaffna Tamil who had moved from Jaffna recently.” However, he had been living in Trincomalee for just over four years. He was not a recent arrival at all albeit that there may have been different cultural understandings of what is meant by ‘recent’. However in the Tribunal’s view the applicant in this declaration was attempting to create a profile and a reason for his arrest which he did not have.

That was the matter which was dealt with by the Full Court as a “no evidence” point and, your Honours, because that relates directly to what we would understand as being a relevant objective fact, namely, whether he was indeed arrested as he had said in April of 1996, could I just indicate the passages in which this matter is dealt with in the Full Court, commencing at the bottom of page 297 in the appeal book, paragraph 37 of the judgment. Their Honours note:

In the respondent’s statement of 25 November 1996 he said he had been arrested in April 1996 as a “Jaffna Tamil who had moved from Jaffna recently”. Earlier in that statement (the same page) he had clearly said that he left in January 1992 and had then moved to Trincomalee. The Tribunal clearly took from his statement a meaning which was not there.

In other words, as we would understand it, the inference that he was seeking to provide a reason for his arrest is something which the Full Court is saying is an inference which was not there. They then set out the evidence which was given where this matter was put to the applicant, Mr Thompson being the Tribunal member:

“MR THOMPSON: The other thing I found curious about your first statutory declaration was your claim that you were a newcomer to Trincomalee. Do you understand why you said that?

“THE INTERPRETER: Well, who says that I was a newcomer?

The passage is quoted.

“THE INTERPRETER:   Well, a newcomer in the sense I was not born and bred there. Well, I, in fact, came from here.
MR THOMPSON:   Well, you had been four years in Trincomalee at that time.
THE INTERPRETER:   Yes, I had.”

Then the court says of that:

The view of the Tribunal that the respondent was attempting to create a profile and a reason for his arrest which he did not have depends upon its finding that the respondent conveyed that he was new to Trincomalee. That is how the Tribunal labelled factor (5). The statement of the respondent, containing the information that he had moved to Trincomalee in January 1992 and that he thought he had been arrested as a Jaffna Tamil who had moved from Jaffna recently, does not provide evidence that the respondent claimed he was “new” to Trincomalee in the sense that expression was used by the Tribunal. He did not by that statement seek to convey that he had arrived in Trincomalee much later than 1992 . . . In that circumstance, the particular fact that the respondent had made the claim as identified by the Tribunal did not exist.

With respect, we say of that matter that it really is ‑ ‑ ‑

GLEESON CJ: It is elaborated, is it not, in paragraph 40?

MR BASTEN: Yes.

GLEESON CJ: The error attributed to the Tribunal was taking part of a statement out of context and attributing to him a claim that he had not intended to make?

MR BASTEN: That was how they understood it. They start that paragraph, your Honour, by saying that the process of reasoning:

shows that the Tribunal’s finding was based upon part of the respondent’s statement which was taken out of context –

Now, if this is an attack on the process of reasoning of the Tribunal, it is not clear that that demonstrates an error of law of the kind which ‑ ‑ ‑

GLEESON CJ: But what is the “fact” being referred to in the third word of the second sentence in paragraph 40?

MR BASTEN: Your Honour, we would say it is an inference, not a fact, and it is an inference drawn from the use of the words, “had moved from Jaffna recently”.

GLEESON CJ: But whatever it is, that is the section 476(4)(b) fact.

MR BASTEN: That is right.

GLEESON CJ: That is why I would like to understand exactly what it is.

MR BASTEN: Yes. Well, our complaint is that it is not a fact but an inference, and I will come back to that, if I may. It is an inference derived from that phrase which is set out at line 15 on the previous page, as we would understand it.

GLEESON CJ: I thought that the “fact” there referred to, which is the 476(4)(b) fact, is that the applicant for a visa was making a claim. The Full Court concluded that he was not making a claim and that there was therefore no evidence of the fact that he was making a claim. Is that not the process of reasoning in the Full Court?

MR BASTEN: It may be, your Honour, although it is not entirely clear if one goes back to line 30 on the previous page, because what they say there is that the view of the Tribunal was that the respondent was attempting, “to create a profile and a reason for his arrest”. In other words ‑ ‑ ‑

GLEESON CJ: But it appears from line 35. They are looking for an absence of evidence, and they say it does not provide evidence that he claimed that he was new. So the “fact”, of which there is no evidence, is the making of a certain claim.

MR BASTEN: Your Honour correctly puts to me how the Full Court is putting it. I accept that. When one says “making a claim”, it is not a claim that is directly a claim of fear of persecution, nor of arrest. It is, as it were, a claim of an underlying element which may explain why he was arrested and therefore support a conclusion that he was, as he says, arrested.

GLEESON CJ: They used the word “claim” as meaning assertion, that is all.

MR BASTEN: Yes.

GLEESON CJ: Not a claim of right, for example.

MR BASTEN: Not a claim of right, nor a claim of the kind which would of itself give rise to a fear of persecution. It is a claim matter at primary level well below that which would result in the establishment of the objective fact. The objective fact which he must make out is his arrest.

GLEESON CJ: Well, suppose that, in giving a history in support of a contention that there was a well-founded fear of persecution, an applicant made an assertion about his age that had some kind of relevance to fear of persecution, and the Tribunal understood him to be asserting that at a particular time he was a young man, and there was other evidence that indicated that at a particular time he was a middle-aged man, and the Full Court, looking back on it, thought that the Tribunal was wrong to understand him as having claimed that he was a young man. That would be in the same category as the present case, would it not?

MR BASTEN: One would think so, your Honour. There would be one or two more steps that, no doubt, the claimant would have to follow but all that that would be, would be a reassessment of the merits of the fact‑finding exercise undertaken by the Tribunal. The question really is whether that is the appropriate exercise to be undertaken to satisfy the statutory “no evidence” grounds.

GLEESON CJ: If the Tribunal’s reasoning indicated that it thought it had caught the applicant out in a lie about his age, and that was critical to its assessment of his credibility, the question is whether the Full Court having concluded that he never made the assertion about his age, which the Tribunal regarded as false, gave rise to a decision based on the existence of a particular fact which did not exist.

MR BASTEN:Yes.

GLEESON CJ: Now, what is wrong with that application of the language of 476(4)(b), leaving to one side, for the moment, the relationship between 476(4)(b) and 476(1)(g)?

MR BASTEN: Your Honour, there are two elements of your Honour’s hypothetical example which, we would say, do not arise in the present case. They may be significant because when your Honour says that that finding of fact is critical, it would suggest that it was a finding on which the decision, the ultimate decision, was based in the sense that it was truly in the terms of Curragh and so on, a link in the chain. If one, therefore, says that that fact did not exist then the reasoning process falls and the Tribunal’s ultimate decision therefore falls with it.

Now, in relation to a credibility finding, there are two difficulties. One is that that is rarely going to be the case. Normally one will find the Tribunal says, as it is entitled to say, “You say that this happened. I don’t believe you.” and it may say, “Because of vagueness or inconsistencies in your statement” and it may say, “Here are the inconsistencies or vagueness.” It would be unusual for there to be simply one factor which gave rise to an adverse credibility finding which, in turn, gave rise to a finding that the claims had not been made out.

Having said that, the example that your Honour gives may, on one view, satisfy paragraph (b) viewed in isolation. There must be both no evidence or material - I am sorry. It gives rise to another question, namely whether the decision, which is based on the existence of the particular fact, must itself perhaps be without other support, which may be the relationship your Honour does not seek to address, or whether the existence or otherwise of the particular fact must be a matter to be determined by the Court without regard to a “no evidence” element.

In other words, is it sufficient that there is some evidence of that particular fact, that your Honour identifies, but the Court is satisfied that it did not exist. Because if one reads paragraph (b) in isolation it says nothing about absence of evidence at all.

GLEESON CJ: The example that I have given proceeds on the assumption that a fact in 476(4)(b) can include the state of mind of the applicant when he made a particular assertion.

MR BASTEN: Yes.

GLEESON CJ: Because in the example that I have given, the fact is that the intention of the applicant to assert that he was a young man.

MR BASTEN: Yes. Your Honour, our primary submission in relation to that is that that is not the kind of fact, in this case, upon which that ground can be based and briefly, and perhaps I can elaborate upon it shortly, as we understand it, that ground arose from an understanding of the House of Lords’ decision in Tameside. In Tameside the question was whether there was any material which would justify a conclusion about the reasonableness of conduct of a local council and that without that particular objective fact the ultimate view of the council, and therefore the Secretary of State, could not be supported. In this case we would say that the equivalent particular fact, given the claims made and the reasoning of the Tribunal, is was he arrested in April 1996 and that the level of particularity, which exists in your Honour’s case, is too far removed from that fact ‑ ‑ ‑

GLEESON CJ: But it is the same as the present case, is it not?

MR BASTEN: Your Honour’s example is.

GLEESON CJ: Yes. In the present case the particular fact was whether or not the applicant made a certain claim, in the sense of assertion.

MR BASTEN: Yes, that is so.

GLEESON CJ: In other words, whether or not by what he said he intended to create a false impression.

MR BASTEN: Yes, I accept that, and I am saying we do not accept that that is a particular fact for the purposes of this provision, because the fact which does not exist must be a fact which goes to the ultimate issue, though it is not the ultimate issue, and which is proved not to exist, or at least is a step along the way on the reasoning of the Tribunal. May I give your Honour a slightly different example, which is a bit closer to this case? If he had said, “I was arrested on 16 April 1996” and the Tribunal says, “I do not believe that claim, although if I did I might well be satisfied you had a well-founded fear of persecution”, thereby making it critical, “because your passport says that you left the country on 10 April 1996”. Now, although that is, as it were, one-stage removed from the object of fact of the arrest, it is treated by the Tribunal as that which leads to a refusal to accept that fact.

If he comes to the Federal Court and shows that the passport was misread and it actually indicates 10 April 1998 as the date of departure, then it may be possible in that case to argue that the case against him turned on the particular fact, namely, what date his passport indicated his departure from Sri Lanka and that finding made by the Tribunal was wrong in the sense that that fact did not exist. But that is central to the object of determination of the key to his claim, namely, was he arrested?

GLEESON CJ: The concept of basing a decision on the existence of a fact in administrative review where, I suppose in one sense, there are no issues, at least raises the question whether the scheme of distinguishing between facts in issue, and facts relevant to facts in issue, can be translated into this area.

MR BASTEN: Yes.

GLEESON CJ: Maybe it cannot, but in the context in which you can make that distinction, you would distinguish between facts in issue, facts relevant to facts in issue and then evidence.

MR BASTEN: Yes. The construction which has been placed in a number of cases on subsection (4) as a whole is one which identifies the two limbs of the subsection as dealing respectively with the ultimate fact in issue ‑ ‑ ‑

GAUDRON J: I can see why in paragraph (a), but I cannot for the life of me see why in paragraph (b).

MR BASTEN: I am sorry, that the ultimate fact may not be one of the facts covered by paragraph (b), yes. Well, perhaps it may, your Honour, but generally speaking, the ultimate fact is likely not to be a particular fact in the sense of some objective matter. It certainly is not in this case. It is an inference drawn from a particular fact and the ‑ ‑ ‑

GAUDRON J: If the decision is about a fact, which in a sense it might be – even in this case it might be about a fact, the fact of satisfaction – it seems to be talking in paragraph (b) about some other fact upon which that decision is based.

MR BASTEN: Yes.

GAUDRON J: Different considerations in paragraph (a). That does seem to go to the Tameside situation, as it were. But paragraph (b) seems to be unconfined in that way, at first reading, anyway.

MR BASTEN: Yes. Well, I am not sure whether it is unconfined in the Tameside way, but can I come back to that. May I just take what your Honour is putting to me back a stage further. The ultimate exercise of power is, of course, that set out in section 65 of the Act, namely that the visa is to be granted if the decision‑maker is satisfied that the criteria, relevantly in the Convention, are established and if not so satisfied, is to refuse to grant the visa, so that the ultimate requirement upon which the decision‑maker must be satisfied before granting a visa is a requirement which clearly falls within paragraph (a), namely, satisfaction of the “well‑founded fear” test, a visa cannot be granted unless that is satisfied.

In relation to a negative decision, it is not clear that there is any statutory requirement which would fall within paragraph (a). The want of satisfaction does not depend upon any fact being established. The question is then how one, in the latter case, deals with paragraph (b) and, presumably treating it in isolation from subsection (1), one could say that the want of satisfaction in a particular case may be established by the reasoning of a Tribunal which says that its want of satisfaction did depend upon the existence of a particular fact.

Now, in that analysis, your Honour, I accept in abstract what your Honour puts but it is probably not going to be a feature of cases like these and it may or may not be significant in terms of one’s overall construction of the interrelationship of the two provisions. That is something which goes beyond what the Chief Justice was putting to me. But it may or it may not be right to say that the ultimate fact can fall within (b) because, if I am right in saying it will usually be an inference, that has been understood to be the reason why paragraph (a) refers to “a particular matter” which is assumed to be language going beyond that of facts and encompassing inferences drawn from facts, and that would appear to us to be correct. But it also suggests in the converse situation that a reference to “a particular fact” is not intended to encompass an inference drawn from a particular fact, otherwise the language would not change.

Your Honours, if I may just return to the material I was going to refer to in the bundle before moving on to seeking to establish some of the propositions of law to which I have referred. The other matter which was said to be a fact which did not exist was the second limb of the first factor identified by the Tribunal which is dealt with by the Full Court at page 286 and following in paragraph 14 – it is identified there, and then is dealt with, subsequently, in terms of its merit.

May I refer your Honours briefly to the basis for this complaint which occurs at page 62 of the appeal book where there is an extract set out from an interview between the first respondent and an officer of the Department. He was being asked questions about his house. He said:

no one was living in your home when you left?

That was in May, I think, of 1996. He says:

A: No.
Q: Is anyone living there now?
A: Somebody living not but there are boys the LTTE has taken the house and left.
Q: In Point Pedro?
A: Yes.
Q: I thought that area was being taken over by the Sri Lankan Government.
A: Now.
Q: Alright.

And so on. The mistake which the court understands the Tribunal to have been made is to read “Now” as “No” or perhaps as “Now, but not then”. That matter was also an issue which was relevant to credibility but not to the establishment of the fear of persecution, as such, but only to the relocation issue.

GLEESON CJ: The fact is identified on page 294 at line 20.

MR BASTEN: Yes, that is so.

GLEESON CJ: It appears as though the material fact, or the particular fact, is the fact that he said, “No”.

MR BASTEN: Yes. Or denied it, yes.

GLEESON CJ: When in fact he said, “Now” and the fact that does not exist is the fact that he said, “No”.

MR BASTEN: Yes. That is how the Full Court dealt with that matter, your Honour. Might I just note the reference in the findings of the Tribunal. It was the passage at page 231 at line 5 when the Tribunal summarises the evidence saying that it had asked the applicant certain questions about what he had told the Department. His reply is referred to and then the Tribunal says at line 9:

However in fact the applicant had told the Department that the LTTE has taken the house and everything and had denied that Point Pedro had been taken over by the Government.

That was the finding which was made. It does not necessarily follow that it misread “now” as “no”. It might have misread “now” as referring to the time of the hearing before the Department Officer rather than the stage at which the question appeared to be directing attention. Again, there is a question about whether this is merely a revisiting of the fact‑finding exercise undertaken by the Tribunal, drawing a different conclusion, or whether it is something about which it can properly be said there was no evidence before the Tribunal as to the claim which was thought to have been made. All I seek to say is that your Honour correctly directs me to the passage in the Full Court’s judgment. It does not, in terms, reflect the passage in the Tribunal’s reasons at page 231.

Your Honours, the other point I was seeking to make about these passages is that whilst they are all said to go to the question of whether or not the applicant should be believed, they actually relate to quite different circumstances both as to whether a claim was made, which might be described as a procedural fact, and in relation to the objective facts in issue, namely in one case whether he could relocate to Point Pedro and the other case as to whether he had a well-founded fear of persecution at all.

Your Honours, might I, against that background, come back to the question of construction which arises by reference to the legislation and note that there are a number of issues which will require reconciliation of the two provisions. This is the next question beyond that which your Honour the Chief Justice asked me about. Firstly, 476(1)(g) is, as it appears, the specification of the actual ground, namely:

that there was no evidence or other material to justify the making of the decision.

Now, read on its own it must mean the decision to refuse to grant the visa, which depends upon non-satisfaction of any relevant state of facts. The first point we seek to make is that want of satisfaction cannot give rise, in these circumstances, to a “no evidence” ground because one does not need any evidence in order not to be satisfied of particular matters.

The second point we draw attention to is the use of the word “justify” in that provision. That may be a matter which becomes significant when we seek to understand the inter-relationship of this with the two subparagraphs of subsection (4). Subsection (4) provides that the ground, “is not to be taken to have been made out unless”, and it is not, as we would understand it, properly characterised as a deeming provision but rather as a provision which identifies two circumstances in which the ground described in (1)(g) can be made out, and says that those are the only two circumstances.

The first, as your Honours have indicated, is where the person was required by law to reach that decision only if a particular matter was established and that, we would say, fairly reflects a positive finding that this person is entitled to a protection visa but not the finding that he was not. It requires that there was no evidence or other material from which the person could reasonably be satisfied that the matter was established.

Now, that test of “could reasonably be satisfied”, combined with a reference to “no evidence”, appears to reflect the concept of material which would justify a decision in paragraph (1)(g). In other words, one is looking to logically probative material when one talks about evidence, and an absence of evidence is an absence of logically probative material. If one then comes to paragraph (b) – and perhaps this takes one a step further beyond what I was putting to your Honour Justice Gaudron – it is a separate element, namely, that the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist. If I might come back in a moment to the proposition that this is derived from Tameside, we say that paragraph (b) also has its link in Tameside. Perhaps it is convenient if I do that immediately.

I should perhaps note, and your Honours are no doubt conscious of the fact, that some of the background to this construction is conveniently set out by Justice Wilcox in Television Capricornia v Australian Broadcasting Tribunal (1986) 70 ALR 147, in a passage at page 155 and following, where he identifies the background to the statutory enactment. At line 26 on page 155, his Honour noted:

The most striking aspect of paragraph (b) of s 5(3) is its restricted nature. It might have been thought appropriate to provide for an administrative decision to be struck down where the decision was based upon the assumption of a particular fact of which the decision‑maker had no evidence. This would have been consistent with the approach enunciated by Lord Diplock –

But a “deliberate decision” was taken to restrict the ground more tightly. Then, at page 156, his Honour notes that the Ellicott report, which refers to the introduction of the provision, notes – and this is at line 10:

“The inclusion of this ground as formulated may have the effect of widening the grounds on which the courts would grant relief in Australia. The formulation is intended to embody the reasons for decision of the House of Lords in the Tameside case.”

Then, at the bottom of the page, his Honour notes the relevance of Tameside as being “in connection with” – this is at line 35:

cl 5(3)(b) of the Bill. There was not much doubt in 1977 that the absence of evidence of a jurisdictional fact was a ground of invalidity –

we take that to be a reference to paragraph (a).

Whether Tameside should be seen as a non-jurisdictional case is open to question; but there is no doubt that it was also a case in which the decision-maker had based his decision upon the existence of a particular fact – unacceptable difficulties for parents – which the House found, did not in fact exist. It was apparently to meet that type of case that para (b) was inserted.

His Honour continues:

In Tameside there was a positive finding of the non‑existence of the relevant fact. Given this background, and what was apparently seen as some measure of breaking new ground, it is understandable that, when Parliament turned to non‑jurisdictional findings of fact in s 5(3)(b), it required the applicant for review to show more than that there was no evidence before the decision‑maker of the fact found, or assumed, as the basis of the decision. The applicant was required to negative the fact.

If that be, and it appears to be an approach which has been followed uniformly in this regard in the Federal Court, it imports into paragraph (b) a requirement that there be no evidence of the particular fact. That may be correct but it is not clear on the terminology of paragraph (b) that that is part of the requirement.

GLEESON CJ: It uses the expression “relevant fact”.

MR BASTEN: His Honour does, yes.

GLEESON CJ: Yes, which sounds like fact in issue or fact relevant to a fact in issue. It does not sound like evidence.

MR BASTEN: No, that is so. His Honour does that on a reading of Tameside which, with respect, appears to be correct. Might I take your Honours briefly to Secretary of State v Tameside, [1977] AC 1014, particularly at page 1046 in the judgment of Lord Wilberforce from which this passage appears to have been taken. At page 1046E, his Lordship sets out section 68 which is the relevant provision and which provides, in effect:

If the Secretary of State is satisfied, either on complaint by any person or otherwise, that any local education authority . . . have acted or are proposing to act unreasonably with respect to the exercise of any power conferred or the performance of any duty –

then the Secretary of State may:

give such directions as to the exercise of the power or the performance of the duty as appear to him to be expedient . . . ”

His Lordship then notes at page 1047C:

The critical question in this case, and it is not one, is whether, on a matter which appears to be one of educational administration . . . the Secretary of State’s judgment can be challenged.

Your Honours will no doubt recall that this was a case in which the local authority had decided to abandon selective schooling, in Tameside. There had been an election, the new authority had decided not to adopt that approach and to re‑introduce selective schooling. A decision made, I think in June, in order to be implemented in September, was said to be subject of such difficulties that it was unreasonable, and unreasonable in the Wednesbury sense, which is what their Lordships say is the test to be applied in section 68.

In the middle of page 1047D his Lordship says:

If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account.

And so on. In the end at page 1048C his Honour says:

The ultimate question in this case, in my opinion, is whether the Secretary of State has given sufficient, or any, weight to this particular factor in the exercise of his judgment.

And the factor was whether or not it was proper to conclude that the authority could not effectively implement the new decision within the time frame provided in circumstances where the union had threatened to disrupt the operation of the selective process.

Now, as we would understand it, the Secretary had formed a view as to his satisfaction that the local authority was proposing to act manifestly unreasonably. The Secretary could not do that without some factual basis. The factual basis concerned apprehended chaos in the implementation of the scheme. There was nothing the court found to uphold that view of the facts and therefore the factual basis for the Secretary’s satisfaction did not exist.

The point I really seek to make from that is that it appears that that is the circumstance in which paragraph (b) is referring to the existence of particular facts, ie, some facts which are necessary in order to justify a satisfaction and paragraph (a) presumably is designed to ‑ ‑ ‑

GAUDRON J: But it does not say that, does it?

MR BASTEN: It does not say that in terms.

GAUDRON J: In fact, on ordinary principles, one would have to think it does not mean that when you contrast it with what is in paragraph (a) and when you have regard to the decision being based on a fact, not really about a fact that is essential in the sense that it was in Tameside.

MR BASTEN: Well, I suppose that may determine the meaning of “based on” in that ‑ ‑ ‑

GAUDRON J: I mean, undoubtedly it was modelled on what was said in Tameside, but it is not what it says.

MR BASTEN: Yes. I am not sure that I need to disagree with your Honour in this case because what I have suggested is that the ultimate satisfaction is not the particular fact and could not be, but it does not really matter if in another case it could be.

GAUDRON J: No, here I suppose the decision is to refuse the application for review and it is based on, I suppose, immediately, non-satisfaction.

MR BASTEN: Yes.

GAUDRON J: Though in a particular case the decision‑maker might just say, “I’m not satisfied”. But if a decision‑maker says, “I’m not satisfied because”, there is nothing in (b) that says you look to the immediate basis, is there? I mean, when you are talking about the basis for a decision, it does not have to be a single basis it has based the decision on, it does not have to be the only one and it does not have to be the immediate one, I should not have thought.

MR BASTEN: Your Honour, that approach is consistent with what the Full Court said in Curragh’s Case in the sense that, as I indicated before, their Honours accepted that there was a sufficient element of being based upon if the particular fact which did not exist was a necessary link in a chain leading to the ultimate conclusion.

GAUDRON J: Yes, but the language does not say that either “based upon”. I mean, you know, I can base this book on four or five different things and, ultimately, the foundation might be several layers down and it is still based upon the foundation.

MR BASTEN: In the sense that each element of the foundation may have some role to play in upholding the ultimate book or conclusion.

GAUDRON J: It would not have to be critical.

MR BASTEN: No.

GAUDRON J: It would just have some role to play.

MR BASTEN: Yes. Your Honour, we would obviously resist that conclusion on that approach.

GAUDRON J: Why? One is talking about ordinary language here, I would have thought.

MR BASTEN: We are but we are talking about ordinary language within a context.

GAUDRON J: Decision making.

MR BASTEN: Yes, but the context, with respect, is an appearance, at least, that this Act, as Chief Justice Mason said in Bond 170 CLR 341.

GAUDRON J: Yes. I was talking about the AD(JR) Act which does have (4)(b) in it, does it?

MR BASTEN: Yes.

GAUDRON J: It does, now.

MR BASTEN: Yes. Your Honour, the only differences between the AD(JR) Act and this provision are that the AD(JR) Act makes inconsequential variations to terminology. (4) in the chapeau says “is not to be taken to have been made out”. The AD(JR) Act says, “shall not be taken” I am so sorry, “to be made out” instead of “to have been made out”. We do not apprehend that either of those variations are significant. Then in paragraph (a), instead of “he or she” (4)(a) says, “the person”, which again seems to be insignificant. So that the formulation both of the initial ground in (1)(g), (1)(h) in the AD(JR) Act, and (4), which is (3) in the AD(JR), are relevantly, we understand it, identical.

The passage to which I was referring was that in the middle of page 341 where his Honour, in discussing findings of fact, starts at about point 6 with the principle that:

To expose all findings of fact, or the generality of them, to judicial review would expose the steps in administrative decision‑making to comprehensive review by the courts and thus bring about a radical change in the relationship between the executive and judicial branches of government.

That is the concern which one has if one gives a broader construction to base it upon than that which we contend for. That, incidentally, was a passage which was recently reiterated by the majority judgments in Yusuf. Then his Honour seems to pick up that analysis at page 355 in considering the relationship of the new “no evidence” ground with what might be described as the common law “no evidence” ground.

GAUDRON J: There is no doubt that it is wider than the common law ground.

MR BASTEN: There is no doubt that paragraph (b) would go beyond the common law ground, as I would understand it, your Honour. There is an interesting question as to whether paragraph (a) does.

GAUDRON J: Yes, it may just be a jurisdictional fact provision.

MR BASTEN: Yes, we would have thought perhaps not. The two points that I might seek to draw at this stage are that if one then looks at the terminology which his Honour adopts from pages - let me take a passage in 355 at about point 7. His Honour starts:

The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions -

and so on. The distinction, as we would apprehend it, between facts and inferences is drawn there and carried through to his Honour’s analysis of the Act. The other point which I was going to come to in direct answer to your Honour Justice Gaudron’s question is at the bottom of page 357, where his Honour notes the effect of 5(3). His Honour says:

is to limit severely the area of operation of the ground of review in s.5(1)(h). If we put to one side the situation to which par.(b) is directed (proof of the non-existence of a fact critical to the making of the decision) -

and so on.

GAUDRON J: That simply substitutes a word for one which is not used in the statute.

MR BASTEN: It has a slightly different connotation.

GAUDRON J: It does have a slightly different connotation. I would not have thought that the language of (4)(b) necessarily imported “critical”.

GLEESON CJ: Can I ask a procedural question before we adjourn. Can new evidence be led in proceedings under section 476?

MR BASTEN: Yes.

GLEESON CJ: If in the present case the transcript of the proceedings before the Tribunal had recorded the answer to the relevant question as being “no” and the Tribunal in its reasons for judgment had repeated that part of the transcript and used it in a certain way, could the applicant, for review under section 476, have adduced evidence that there was a mistake in the transcript, that he actually said “now” instead of “no”, and would that be a basis for reviewing the decision under 476(4)(b)?

MR BASTEN: If my friends are right, yes, your Honour.

GLEESON CJ: We will adjourn until 2.15pm.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.22 PM:

GLEESON CJ: Yes, Mr Basten.

MR BASTEN: In relation to the last question your Honour the Chief Justice asked of me, it may have been a hypothetical question but as your Honour may be aware it was not so far removed from the facts of this case. At page 6 of the appeal book there is an affidavit put on the day before the hearing by the solicitor for the applicant in the Federal Court which annexed a copy of the transcript of the audio tape which he had prepared, and that is the document which appears at page 62 in the appeal papers, that is not a document which was before the Tribunal member as such.

Then, of course, that was, as the trial judge noted, subject of questioning by the Tribunal in the passage which is set out at page 43 where the Tribunal member put his understanding of that evidence given in the departmental interview to the applicant and sought his response. At the end of the which it seems that the applicant reaffirmed at line 45 to 50 on page 43 his denial, in effect, that Jaffna had been cleared because he says the LTTE he was still there and sufficiently active to have killed a apparently senior military officer. That material is dealt with by the trial judge at page 259 where, after several pages dealing with Point Pedro which commenced at paragraph 31 at page 256 – I will not take your Honours through it, it is that material to which I have drawn attention. At page 259 at paragraph 34, Justice Einfeld noted that his:

house has or may have been bombed by government forces. In theory the re‑establishment of government control in Point Pedro might mean that the house block and another block of land handed over to or taken by the LTTE when he left for Trincomalee is able to be recovered . . . I can find no inconsistency and nothing misleading in this evidence. All of it supports the applicant’s assertion that the LTTE was still in Point Pedro and that he probably has nothing there to return to.

That contrasts, with respect, with the way in which it was dealt with by the Full Court in the passage to which your Honour the Chief Justice directed me on page 294. Ultimately for present purposes, the issue which arises is whether, whatever the understanding of the evidence was, it was properly described as a “critical” fact. That is the terminology adopted by the Full Court at paragraph 29 at line 25 on 294. Curiously, in relation to the pension issue, which is the matter dealt with just above this passage at paragraph 27, their Honours concluded at the top of 294 that:

The Tribunal’s focus in this regard is upon what the respondent told the Department, that observation by the Tribunal would not constitute a “critical” fact (as explained in Curragh).

Now, they take a different view of the other aspect of the denial, for reasons which are not made clear, and it is addressed not at paragraph 29 but below, which is at paragraphs 47 through to 50 at pages 301 and 302. Again, they say:

It is necessary to consider whether either or both of those facts –

which was found not to exist –

is critical, in the sense explained in Curragh, to the making of the decision of the Tribunal that the respondent concocted his claims.

That is not of course the ultimate decision but one of the findings that the Tribunal made in rejecting the case. Their Honours then identify the fact that the Tribunal had identified “the combination of factors” – this is at the bottom of the page – as leading it to its conclusion. In the last line on the page:

Neither of those two matters is therefore of peripheral importance to the decision . . . each is a matter which played a part –

The point we seek to make in relation to that is that that is not the observe of the coin of being critical. There is a lot of space, we would say, between being a critical fact – and I will come back to why we say that has a particular meaning – and being merely of peripheral importance. One is not the opposite of the other.

Their Honours then note the “parallel links in a chain” at line 5 “of reasoning” from Curragh and say that these are:

matters without which the Tribunal may well not have reached the conclusion which it did.

That, we say, is not the right test. Then in paragraph 50 they deal with the proposition which the appellant and the appellant in this Court put, namely:

that where a challenge is made to a conclusion that a visa applicant should not be believed, that conclusion can be set aside under s 476(1)(g) and (4)(b) only if there is no evidence or other material to support that overall finding.

They reject that by an analysis of Curragh which we say does not hold water and they say at line 29:

It is necessary, in each instance, to consider whether the fact which is shown not to exist is a critical fact –

well, we accept that for the purposes of this part of the argument. Then they go on to discuss a “particular fact” and end up at the bottom of the paragraph saying that each is a particular fact, presumably departing, as it were, from the finding in the middle of the page or the question set in the middle of the page, but perhaps intending to answer it.

Now, the reason that we say that it is proper to ask whether this is a critical fact involves a reading of section (4)(b) in conjunction with the grounds stated in subsection (1)(g).

GLEESON CJ: Is subsection (4) intended to be explanatory of the concept of justifying the making of the decision in (g)?

MR BASTEN: That is how we would see it, your Honour, yes, for the purposes of this.

GLEESON CJ: I wondered what difference it would make if (4) were just not there. Presumably, if (4) were not there, there might be arguments about what constituted justification for the making of a decision.

MR BASTEN: Yes. Can I answer that directly. We would say that that would be explicated in accordance with the well-established reasoning. Chief Justice Mason in Bond refers to Federal Commissioner of Taxation vBroken Hill South Ltd (1941) 65 CLR 150, in particular three passages, but perhaps it is sufficient if I go to the first of them. This was a taxation case in which the question was whether the Board of Review had been correct in accepting that a call on capital was a deduction available in relation to a mining company which merely had a mine in mothballs, as it were, temporarily, and the question was whether it was conducting mining operations. At page 155 in the judgment of Justice Starke at about point 7 on the page, after reference to a number of cases, his Honour said:

But if there be no material which would justify the meaning given by the tribunal to the words, that is a question of law. This court has no authority to decide whether the finding is correct, but only whether there is any material upon which the tribunal could reasonably so find.

That, of course, being the ultimate finding in the case.

There is a similar passage in Justice McTiernan’s judgment, in the middle of page 157, in a line beginning with the word “law”. His Honour said:

If there were before the board materials proving the purposes of the company’s operations, upon which the board could properly find that such operations came within the scope of sec 78(1)(d) or the other provisions applicable, their decision does not involve any question of law –

and the third passage to which Chief Justice Mason referred appears at the bottom of page 160 in Justice Williams’ judgment, after the reference to Chief Justice Jordan’s comments in Australian Gas Light. His Honour said:

The only question of law which arises on the appeal, therefore, is whether there is any evidence on which the board could reasonably conclude that the company was carrying on mining operations for base metals in the relevant years, the duty of the board being to determine what the expression meant –

and so on. Now, if one applies that to the terminology of paragraph (g), in our submission, it would suggest a meaning for – based the decision upon in paragraph (b) ‑ ‑ ‑

GAUDRON J: If one does that, then you give (g) no work to do beyond that which is done by (e), is that not right? Is that not what Chief Justice Mason pointed out in Bond?

MR BASTEN: No, with respect not because the expansion of the common law, as we would understand it in (b), is that it allows one to look beyond the ultimate facts in issue which appears to be the limit of the common law “no evidence” ground, so that particular facts go further, but the phrase “based upon” must be read coherently with paragraph (g) and it means that there must be no other evidence capable of justifying the making of the decision.

In that sense, we would understand the term “critical” to be appropriate and to be the meaning which Chief Justice Mason was ascribing to the provision correctly, with respect, in our submission. It would not be a meaning which would be satisfied in the present case because it must be beyond doubt that a credibility finding ultimately and a paradigm example of a finding to be made by the Tribunal could have been justified on other material. Therefore, the term “based the decision on a particular fact” should be given the narrow meaning to which decisions have previously suggested it should have.

GLEESON CJ: Does that mean that in your submission the word “fact”, where it appears as the fourth last word in paragraph (b), goes beyond ultimate fact and includes fact relevant to an ultimate fact, but does not include matters of evidence.

MR BASTEN: That is so, yes; what might otherwise have been called evidence upon which an inference was based. Your Honour put a question to me in similar terms before lunch and I was going to indicate that that analysis, which we, with respect, accept, is that which was adopted in somewhat more detail in the judgment of Justice Finkelstein in Jagatheeswaran v The Minister (2001) FCA 865, an unreported decision handed down on 9 July 2001 and discussed by his Honour, in effect, from paragraphs 51 and following, where his Honour identifies both different categories of primary and secondary fact and evidential material and, for example, in paragraph 51, in the last sentence, says:

That is, the particular fact in respect of which it is said there is “no evidence”: was not a primary fact, being what –

in this case –

the relevant documents state, but a secondary fact, namely the inference drawn from the statements in the documents.

Then he goes on to consider what is encompassed by the “no evidence” ground and what is meant by “fact” and, perhaps without, obviously, reading it all to your Honours, at paragraph 54 in the middle of the paragraph after a reference to Hohfeld, he says:

An evidential fact, on the other hand, is one to which no legal consequences immediately attach, but which is used to establish another fact to which legal consequences do attach. Usually an evidential fact is a primary fact which affords some logical basis for inferring some other fact. That other fact may be an ultimate fact or an intermediate evidential fact:

Then, at paragraph 55, he says:

By reference to this terminology, the fact upon which a decision is based will usually be an “ultimate fact”, for it is only upon the establishment of an ultimate fact that the law directly annexes consequences. However, it is not only when there is “no evidence” for an ultimate fact that a decision can be set aside.

He picks up the reasoning of the Chief Justice in Curragh. Again, consistently I hope with what I was putting to your Honours this morning, at paragraph 58, Justice Finkelstein says:

The task of determining whether an asserted fact is true may require the trier of fact to consider the credibility of a witness and decide whether the witness is telling the truth.

Then he says the witness may be “mistaken” or otherwise “unbelievable”. Then, at about a third of the way through that paragraph:

With regard to both primary and secondary facts, the trier of fact will bring to bear his general experience, and his ability to consider logically the “evidence” that has been tendered. The process of reasoning involved is personal. Sometimes it will be based on perceived or accepted views about human behaviour. Sometimes those views may be supported by general knowledge. Sometimes they may be the result of speculation or prejudice.

GLEESON CJ: What do you say about paragraph 56?

MR BASTEN: It is really the last phrase in the first sentence, depending on the significance of that fact. He then says:

For example, if the existence of an ultimate fact is based on the finding of an evidential fact, then the evidential fact may be a critical fact –

I think that was the example that I gave your Honour this morning of the finding about the arrest which was based upon the passport indicating something which it did not indicate, that is, as it were, one level below the ultimate fact, but on the circumstances of the case it may be properly be described as a particular fact on which the decision is based.

GAUDRON J: If, in this case, one thought that the particular fact was that the applicant had concocted his claims, would it not be a critical fact that he had or had not said. You do not make a finding of concoction out of the blue, as it were. It is one that excludes mistake, bad memory, so forth. It depends on complete - on fabrication.

MR BASTEN: The claim, the question being an arrest which did not take place - - -

GAUDRON J: No, no, no, not necessarily, because the view that he was concocting, it depended on the view that he had lied in other respects, did it not?

MR BASTEN: Yes, and in this case it involved a view that he had certainly given evidence that was not accepted in a number of respects, some of which directly went to the fact in issue, some of which went to other matters.

GAUDRON J: But there was a finding of concoction, was there not?

MR BASTEN: Yes.

GAUDRON J: That is capable of being a particular fact, is it not?

MR BASTEN: Your Honour, we would say, ultimately, it might be.

GAUDRON J: Because it seems to me that in this case you really have to identify what is the particular fact before you can make an analysis.

MR BASTEN: Yes, but the particular facts are not at that level. That element of concoction involves the drawing of inferences about credibility which in turn depend on a lower level of evidential material.

GAUDRON J: But it is a definite lie we are talking about. It is deliberately untruthful, deliberately, intentionally untruthful.

MR BASTEN: In a relevant respect. In relation to the arrest, for example, in this case.

GAUDRON J: Yes. It is not just that you do not believe him.

MR BASTEN: No.

GAUDRON J: It is something more than that.

MR BASTEN: Yes, I think that is probably right, your Honour. It is the finding at the top of 235, I think, that your Honour is probably relying upon, that that is the state of satisfaction that, as it were, gives rise to the rejection of the claim that he was arrested in April 1996 without which his application could not have succeeded. Just before leaving Justice Finkelstein’s judgment I was simply going to go to paragraph 59 where his Honour said:

It goes without saying that the trier of fact’s views about human behaviour will not always be sound. Those views may be grounded in prejudice or bias. The resultant findings of fact may be wrong. But the result cannot be challenged on the “no evidence” ground. That is to say, there can be no error of law of the “no evidence” type when one is concerned with a process of reasoning in respect of which no evidence is tendered –

That, really, was the ultimate point I wanted to draw from that authority. The other matters which I was going to refer to in terms of the way in which the matters have been dealt with in the earlier cases involved the proposition that – and this is perhaps a separate point – there is a problem in reversing the onus, as it were, in the terminology of paragraph (4)(b) by proving that a particular fact did exist and that in relation to this particular matter was dealt with perhaps summarily and usefully in the judgment of Justice Hill in the matter of Sarancharkh v Minister [2001] FCA 1461, again an unreported decision of 19 October of this year, at paragraphs 43 through to 45 where his Honour summarises the authorities as they exist most recently in the Federal Court, noting the number of judgments of single judges which:

held that s 476(1)(g) does not apply where the finding is of the non‑existence of facts. Rather, it has been held to have application only where there is a finding by the Tribunal as to the existence of a fact.

At paragraph 45 he relies particularly on the decision of Justice Katz in N258/00A and says that:

is certainly not clearly wrong. Indeed, for the reasons his Honour gives, the opposite result can only be reached by adopting “an extremely strained construction” both to the language of s 476(1)(g) of the Act as well as the language used in both limbs of s 476(4). The argument that a different construction should be adopted depends upon the question of policy inherent in excluding from s 476(4)(b) findings that facts do not exist when they do. It may well be that the legislature took the view that while the Tribunal is required to make findings on material facts, that is to say facts which the Tribunal believes to be material, it is not required to make findings about the non‑existence of facts.

He concludes that it:

applies only to findings of positive facts.

Your Honour, the other matter of authority which I might briefly note – and I referred to it in the opening – was that, correctly, in our view, in construing paragraph (4)(b) consistently with paragraph (1)(g), both in Curragh and in other Full Court authorities, the court has treated the requirement of (4)(b) as involving that there be no evidence of the particular fact in question. That appears in the judgment of the Full Court in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 – a judgment delivered by Chief Justice Black, in which Justices Spender and Gummow concurred – in a number of places, but perhaps, in part, on page 221, at about point 7 on the page, a full paragraph:

It is not, of course, enough to satisfy the requirements of s 5(3)(b) –

he is talking about the AD(JR) Act –

alone as to do so would ignore the language of the ground provided for by s 5(1)(h) itself. In such a case, to make out a ground under s 5(1)(h) there must be an absence of evidence or other material of a particular fact upon which the decision was based.
The same construction point is arrived at, or repeated, as it were, at page 224, at about point 3 to 4 on the page. That, as we would understand it, is consistent with the approach taken, namely, that one reads both of the provisions together.

Your Honours, there are some other authorities to similar effect, which have been summarised in the judgment of Justice Sackville in the matter of Xiang Sheng Li v Refugee Review Tribunal (1996) 45 ALD 193. I need not take your Honours to the circumstances of the case. The reference is at page 203 in relation to the “no evidence” ground, list the authorities on which his Honour relies, and quote from a majority judgment in the matter of Szelagowicz v Stocker, to which reference is made. At the bottom of page 203, about five lines up, Justices Davies and Einfeld noted the operation of the two provisions:

“They provide a ground of review where there was before the decision-maker no evidence of a fact, the decision was based on the existence of that fact and the fact did not exist. On this ground, a decision may be challenged, but only if evidence is called which positively establishes that the fact did not exist. They do not permit evidence to be adduced to contradict either evidence or material which was before the decision-maker or an inference which was available to be drawn from that evidence or material.”

GLEESON CJ: If the particular fact is that the applicant has concocted his story, you cannot conclude that that fact did not exist just by showing that one of the reasons given for that conclusion was erroneous.

MR BASTEN: That is so.

GLEESON CJ: But if you descend to a lower level of particularity, and you say the decision was that the applicant concocted his story, the decision was that there was no satisfaction. That, as an intermediate step, depended upon a finding that the applicant concocted his story, and the finding that the applicant concocted his story was in turn a conclusion based upon an erroneous assumption that he said, “No” – that he meant, “no”, when he said, “now” – or whatever the case may be. And, in that respect, you say the decision was based upon the existence of a particular fact which did not exist. Indirectly based upon it, at two or three levels removed.

MR BASTEN: Yes.

GLEESON CJ: Having said all of that, if you then look to paragraph (g), you cannot say that there was no evidence or other material to justify the making of the decision, because there were half a dozen reasons to justify the conclusion that he was concocting a story.So, ultimately it is a question of working out the relationship between paragraph (g) and (b), is it not?

MR BASTEN: It may well be, your Honour. One of the reasons why I suggested that Chief Justice Mason was right in using the term “critical” in relation to (b) was that if one adopts a consistent approach, then the concept of “based on” is not satisfied under (b) because there are at that stage half a dozen reasons why the concoction event does not work. In other words, in Curragh terms you have to have, albeit perhaps a more remote fact than the immediate relevant fact, a link in a chain connecting each layer so that cutting one link will remove the structure. Wherever you have a number of pillars supporting the structure, that argument simply is not available. As long as those other pillars are themselves sufficiently capable of justifying the conclusion reached, then this ground is not available.

GLEESON CJ: How does subsection (4) work in a case which is the obverse of paragraph (b)? Suppose the person who made the decision based the decision on the non-existence of a particular fact and that fact did exist. What happens then?

MR BASTEN: We would say that that provides a difficulty because, generally speaking, it is not necessary for a decision-maker to need to be satisfied to any degree about the non-existence. In other words, it sounds as if it is a fact which, properly understood, needed to be proved in order to

complete the chain and was not proved, in which case you cannot, we would say, within the terminology of that provision prove that it did exist when the Tribunal was not satisfied that it did.

GLEESON CJ: Suppose that in the present case the Tribunal had said, “I just don’t believe that you come from Sri Lanka at all. I think you’re an Afghan”, and the applicant wants to establish that he is indeed Sri Lankan. Is there a ground of review that covers that?

MR BASTEN: We would say no, your Honour. It depends a little bit on the circumstances of the case, I suppose. If he says - it may be that that is my case from this morning, “You weren’t in Sri Lanka at all at the time you say you were arrested”. He is an Afghan who comes from Afghanistan rather than Sri Lanka and yet he says he has been arrested in Sri Lanka. That might be a fact upon which the whole structure is based which did not exist. I am not sure about that. If his evidence is, “I am a Sri Lankan” and the Tribunal says, “I don’t believe you are”, then I am not sure that the “no evidence” ground would assist, simply because he suggests that in fact the reason for not believing him is something else.

Perhaps the difficulty I have is that we, of course, have difficulties at a number of levels with the analysis in the present case, so that I am making some assumptions against myself in saying that it may be that in some circumstances that would be sufficient. In other words, if there is an inference drawn from some basic fact, not that he did not make the claim, but that he made it and it was not believed, then that does not appear to be a matter which falls within the particular fact “no evidence” ground. I think those are our submissions, if the Court please.

GLEESON CJ: Thank you, Mr Basten. Yes, Mr Catterns.

MR CATTERNS: Your Honours, it seems to us, following our friend’s arguments, both written and oral today, that there are four questions: the first question is, does section 476(4)(b) apply to this particular decision, as it were, on its face; and then the next question is, as his Honour the Chief Justice suggested, what is the relationship between 476(1)(g) and 476 (4)(b)? Of course, if we have not satisfied (4)(b) we never get to (1)(g). Then, your Honours, if we have come again, as it were, on their face within (4)(b) and (1)(g), are the two other matters our friends put forward, do they somehow take us out of the provisions? The two matters are: that this relates to credit and secondly, that it relates to a lack of satisfaction, whereas in Tameside, as it happened on the facts of Tameside, that was positive satisfaction. Your Honours, we would propose to deal with those four matters in that order. As to whether or not (4)(b) is met, there are two questions: did the facts exist, where we have the benefit of concurrent findings that they did not, the two; and secondly, was the decision based on them and, of course, that really is, as we see it, the crucial question.

Your Honours, we respectfully submit, and we were not proposing to go back to the evidence that our friends fairly took your Honours to, that the facts did not exist, but I might, if your Honours bear with us, just go to the reasons on that and attempt to, at the same time as showing that the facts did not exist, attempt to show that the decision was based on them and we respectfully submit there is no need to come up with any similes, such as critical or fact in issue. The question is, was the decision based on these facts?

Your Honours, our friends took your Honours at page 230 to the reasoning of the Tribunal and the important passage at page 230, lines 10 to 15, where there is a passage which treats these facts going to credit in a cumulative way and it is that, we respectfully submit, that starts to establish that these are links in a chain and not a net, to pick the metaphor from elsewhere, and the words of the delegate are, your Honours:

There are a range of factors, which when considered together, and while allowing for difficulties . . . lead the Tribunal to doubt the applicant’s credibility. It is the number of difficulties with his evidence which in the end tell strongly against the applicant’s credibility.

We respectfully submit that is not the language of somebody shoring up a decision with eight parallel strands, but these are indispensable. We submit that is made good by the way the Delegate then expressed his findings about the two facts, which we submit do not exist, and their significance in one further respect to another one of the steps in the reasoning.

Again, your Honours, our friend referred the Court to the passage beginning at the bottom of page 230, first of all the question of the pension, and we have not established that that did not exist, but it is clear that the fact referred to at page 231, line 11, did not exist. That is the misreading of “now” for “no”.

However in fact the applicant had told the Department that the LTTE has taken the house and everything and had denied that Point Pedro had been taken over –

We know that he did not deny it, as the Full Court explained at 294. I will not take your Honours back to it. Your Honours, look at the force of the way the Tribunal put it. It leads, as her Honour Justice Gaudron pointed out, to a finding of concoction. The Tribunal goes on that it is of the view:

that in relation to his evidence to the Department concerning his pension and the security situation in Point Pedro the applicant was attempting to give misleading evidence which would raise concerns about whether it would be reasonable for the applicant to return to Jaffna/Point Pedro or otherwise relocate.

That is a strong finding which we respectfully submit shows that it is part of the basis of the next step in the reasoning, which is the finding of concoction, an interim step to the finding of lack of satisfaction.

GLEESON CJ: This makes it vital to fix accurately the level of particularity or generality at which you categorise the fact for the purpose of (b) because, if you categorise as the particular fact for the purpose of (b) that he was concocting his evidence, then it is impossible to say that it has been established that that fact did not exist.

MR CATTERNS: Yes, your Honour.

GLEESON CJ: But if you adopt a greater level of particularity and categorise as the particular fact that he represented that Point Pedro had not been taken over by the government, you get the opposite result.

MR CATTERNS: Yes, your Honour, and our learned friend, with respect, rather embraced your Honour shifting between the two of them a minute ago. If I may so, with respect, when your Honour was analysing the (4)(b), your Honour put it as that he had denied that Point Pedro had been taken over. Then, when your Honour sought to apply that to (1)(g), your Honour, applied it as your Honour just did then, concocted of course, with respect, we submit that the same particular fact that you are focusing on for (4)(b) is the one that you then ask yourself about in relation to (1)(g).

GLEESON CJ: What is there in the legislation that assists you as to the level of particularity or generality at which you identify the fact?

MR CATTERNS: Two things, your Honour, in the legislation itself. First of all, picking up your Honour’s question about whether these are evidential facts or facts in issue, under (1)(g) the overall heading that we are looking at is not facts in issue, still less ultimate facts, but evidence or other material to justify the making of the decision. Subsection (4) provides for a particular species of lack of evidence or other material. That is, we submit, perfectly general and not limited to ultimate factors. I think our friends have agreed a few moments ago.

Then, your Honours, secondly, the words themselves in (4)(b) simply say “based the decision on the existence of a particular fact, and that fact did not exist”. We submit those words are apt to cover any fact that forms a link in the reasoning, so that the decision is based upon it.

CALLINAN J: Mr Catterns, is not there a possible view that there are two conditions that have to be satisfied?

MR CATTERNS: Your Honour, (g) and (b)?

CALLINAN J: Yes, they are cumulative.

MR CATTERNS: Yes, your Honour, I accept that.

CALLINAN J: How can you succeed at all unless there is a complete absence of evidence or other material to justify the making of the decision? If there is any evidence at all to justify the making of the decision, you do not even to get to a consideration, do you, of (4)(b)?

MR CATTERNS: It depends on which order one approaches it, your Honour.

CALLINAN J: There is nothing wrong with approaching it in order of numbers, is there?

MR CATTERNS: No, your Honour. It seems, though it does not bind this Court, our friends seem to accept that the purpose of following Tameside and what is said in Bond, that the purpose of bringing in these provisions is to go beyond something that merely vitiates the final decision in the sense of the Broken Hill tax case. Your Honour, there are two ways that we get there. First is, that otherwise (4)(b) does not have any work to do, or at least highly confined amount of work. Secondly, your Honour, going back to (g), there was no evidence or other material to justify the making of the decision, is the final part of my answer to his Honour the Chief Justice also.

In this subsection (1), as in the equivalent in the AD(JR) Act, there are two separate concepts. One is the decision which we see, your Honours, in (1)(b), (c), (d), (e) and (f), and a slightly difference concept in (a) and (g), which is the making of the decision. We respectfully submit that the concept of the making of the decision - in (a) it is obvious, it picks up steps along the way to the ultimate decision. It would pick up something going wrong at the first directions hearing, as it were.

Similarly, your Honour, and in conformity with the presence of subsection (4) the words “justify the making of the decision” in (g) do allow one to descend to the makings of findings of particular facts along the road to the ultimate decision.

CALLINAN J: “The making of” being almost equivalent to “each part of”.

MR CATTERNS: In effect, your Honour, yes. As his Honour the Chief Justice noted, we submitted that (4)(b) had an effect like a deeming provision. Our argument does not depend upon that but we do submit that it helps with the construction of (g) as suggesting that it will go beyond ultimate facts and, as our friends fairly considered, we understood, in answer to his Honour the Chief Justice, this Act and its sister, the AD(JR), were intended to expand the common law to look beyond ultimate facts in issue and extend to facts relevant and, if so – which we embrace – if that is right, then the question is only, “Is the decision based on it?”.

GLEESON CJ: Which would be a question of materiality rather than being critical.

MR CATTERNS: Yes, your Honour.

GLEESON CJ: Your argument amounts to this, does it not, that if there is any step at whatever level of generality or particularity in the process of reasoning which is not immaterial and which involves a conclusion or an assumption of the existence of a fact which can be shown not to have existed then this applies?

MR CATTERNS: Yes, your Honour.

GLEESON CJ: And produces the consequence that there was no evidence or other material to justify the making of the decision?

MR CATTERNS: Yes, your Honour, if this particular fact of which there is no evidence – I am sorry, I should have paused, your Honour. It does not necessarily produce the consequence. It depends on what the particular fact is.

GLEESON CJ: But that is the only relevant consequence. The ground of review is the ground set out in (g) not the ground set out in (4)(b).

MR CATTERNS: Yes, your Honour, but we accept that we have to jump both hurdles and the way we put it is we submit that these particular facts did not exist, (4)(b), and there was no evidence that this particular fact did exist. There was no evidence which would justify that. In other words, there was no evidence anywhere else that our friends point to that he said “No” about Point Pedro, and there was no evidence anywhere else that he said – that he claimed he was new to Trincomalee. So they fit together in that way, your Honour, but we accept we have to jump the two hurdles.

CALLINAN J: You really want us to read (g) as meaning there is no evidence or other material to justify each material finding or relevant finding forming part of the decision.

MR CATTERNS: I prefer, your Honour, each particular fact on which the decision is based.

CALLINAN J: Is there not a fairly recent decision of the Court, an immigration case, in which the Court held with respect to some findings of credibility that were not sustainable that they infected the ultimate conclusion or that we could not be satisfied that they did not affect the ultimate conclusion? I thought there was a case that came ‑ ‑ ‑

GLEESON CJ: Aala, that was a natural justice case, Aala, in which the findings of credibility were based upon a misunderstanding.

CALLINAN J: I am not too sure that Aala might not assist you. Did you look at Aala?

MR CATTERNS: Your Honour, I am not familiar with it, I am sorry, I did not, your Honour. But we submit that, to use a word used elsewhere, a finding of fact on the way, including one on the way to credit leading to an ultimate decision, can vitiate the decision if there is a missing link in that chain. That is why it has to be based on it, that is why, again, I respectfully submit that synonyms - “material” might be too weak, “critical” might be too strong, let us stick to the statutory phrase “based on”.

GLEESON CJ: That is a metaphor.

MR CATTERNS: “Based on”?

GLEESON CJ: Yes.

MR CATTERNS: Yes, I suppose it is, your Honour.

McHUGH J: But you have to argue that (b) changes course altogether because you start with 476(1)(g), it is talking about:

no evidence or other material to justify the making of the decision –

which, I would have thought, looked to the ultimate decision in the case. Then you have (4)(a) which refers to “a particular matter” that is “required by law” to establish and there is “no evidence or other material” to support that particular matter. So, again, it seems to be looking at an ultimate matter. Now, if your argument is right, the section has suddenly changed course and now you can look at facts at quite a low level of generality.

CALLINAN J: There is another matter too, what Justice McHugh has just referred to points up the difference between (4)(a), which singles out particular matters. So you have a statutory indication of when the courts look at particular matters, as opposed to the general references to the decision in both (1)(g) and (4)(b).

MR CATTERNS: But, your Honour, the – and I think this is an attempt to answer his Honour, as well as your Honour.

CALLINAN J: I am sorry, I should not have ‑ ‑ ‑

MR CATTERNS: We have within (b) the concept of the decision being based “on the existence of a particular fact” and, by contrast with (a), it is not the ultimate fact because that is dealt with in (a).

McHUGH J: But when it says it is “based” on it, you would say it is sufficient if a particular fact makes a material contribution to the decision?

MR CATTERNS: I suppose, your Honour, I have to say, picking up his Honour the Chief Justice’s pointing out that it is a metaphor, that is has to fall down if you pull the basis out. It has to be back to the link in the chain metaphor.

McHUGH J: Well, if you can take an analogy from the criminal law, when a judge is required to give a direction about proof beyond reasonable doubt concerning a particular fact, a judge is required to do so when that fact is essential to the conclusion of guilt in a circumstantial evidence case. Perhaps that is why there is reference to the critical fact.

MR CATTERNS: It is similar, your Honour, but I would respectfully submit we ought not to put in an extra statutory synonym when the word is there.

McHUGH J: It says “based”, and you would say that means: made the decision based in whole or in part.

MR CATTERNS: Yes, your Honour. We submit it is not really a question of what decisions would you have made elsewhere. We look at the decision, we submit, that has been, in fact, made - your Honours remember the Yusuf Case recently – under section 430. The decision-maker sets out the material facts and if they set out as a material fact, which we concede by reading the reasons, exposed in the reasons, that the various steps depend upon this fact, and it does not exist, then we submit it is satisfied. The Tameside Case is an example. The ultimate question was the satisfaction of the secretary that the authority was behaving unreasonably, but the fact that his Honour Justice Wilcox called the “relevant fact”, if I may come to that in a second - the fact was the terrible burden on parents did not exist, and that is why his Honour Justice Wilcox said that whether or not Tameside dealt with a jurisdictional fact, it also dealt with what is in this Act, a (4)(b) fact.

GLEESON CJ: I suppose one thing everybody would agree on is that you have to read (g) and (b) together.

MR CATTERNS: Yes, your Honour.

GLEESON CJ: The introductory words in subsection (4) look as though subsection (4) is intended to narrow what appears in (1)(g).

MR CATTERNS: Exactly, but I stress, with respect, your Honour, what appears in (1)(g).

GLEESON CJ: Yes. But does (1)(g) help to throw light upon what I find a real puzzle, and that is how you determine the level of particularity or generality at which you characterise the fact for the purposes of (b). In other words, does (1)(g) tell you that what you are looking for is a fact characterised at the level of generality or particularity such that you can describe it as the justification for the making of the decision?

MR CATTERNS: Or part of it, I would respectfully submit, your Honour.

GLEESON CJ: Well, (g) is no evidence; no evidence or other material to justify the making of the decision, and it is in the context of that test that you are asked whether a decision is based on the existence of a particular fact.

MR CATTERNS: Yes, your Honour. I would respectfully agree that the word “justify” must help us understand what the word “based on” means.

McHUGH J: Your argument leads to the conclusion that (4) expands 476(1)(g).

MR CATTERNS: I respectfully submit not, your Honour. I submit that they both work together as to the kinds of facts that they relate to, which we will call particular facts for the minute, but ‑ ‑ ‑

McHUGH J: That cannot be the case, can it, Mr Catterns, because if 476(1)(g) stood alone, the fact that there was no evidence to support some particular fact would be irrelevant, if there was other evidence which would justify the making of the decision? You want to narrow it. You say (4)(b) overcomes that because it says, “There may be a wealth of other evidence which supports the decision, but if there is only one fact which was the basis of the decision, and that fact did not exist, then I succeed.” That seems to be an expansion.

MR CATTERNS: I respectfully submit not, your Honour. I submit that they are both of the same ambit in so far as they relate to facts. They go beyond ultimate facts and include relevant facts, but (4)(b) narrows it, in that it puts on the applicant for review an onus not just to say “no evidence” but to say “did not exist”. That is why his Honour Justice Wilcox pointed out that this was a narrow one. We have got to disprove it. I submit the same territory of facts is involved and, indeed, (4)(b) proceeds on the assumption that the non-existence of a particular fact is within the ambit of (1)(g).

McHUGH J: I know the cases seem to take the view that (b) includes the plural, but maybe it does not. It may be, like (4), it is looking for something very special.

MR CATTERNS: Your Honour, it is hard to see, if that were the case, what (b) adds to (a).

McHUGH J: It adds a lot, because in respect of (a) it must be a matter that the law requires to be established.

MR CATTERNS: I thought your Honour meant an ultimate fact in the sense like that. If it is just a singular fact in (b), your Honour, that would tell against our experience from every case we have ever been in. It is rare that a single fact is the basis of a decision, and in the refugee area, where very likely it is going to be matters of credit, whereby this is ‑ ‑ ‑

McHUGH J: I appreciate that, but in this rather Draconian review legislation, it is at least feasible that the legislature has sought to cut down the operation of (g) and said, “You can’t make it out unless there is just no evidence to support some matter that the law requires to be established, or there is no evidence to support a fact which is the determinative fact in the decision.”

MR CATTERNS: Your Honour, bearing in mind its history as a transplant of the AD(JR) section which was intended to be less draconian and more beneficial ‑ ‑ ‑

McHUGH J: It has had a few skin grafts since then, has it not?

MR CATTERNS: This has been chopped right out, your Honour; 476 is now out of the Act. We submit that although it is less generous than the AD(JR) in so far as subsections (2) and (3) go which rule out natural justice and irrelevant considerations, et cetera ‑ ‑ ‑

KIRBY J: What is the relevance of the removal of the provision from the Act?

MR CATTERNS: It was only relevant, your Honour, to our submission that special leave should be rescinded because ‑ ‑ ‑

KIRBY J: I saw that submission. You have not advanced it. I am not pressing you into advancing it but I would like to know what its status is now.

MR CATTERNS: We respectfully maintain it. Obviously we did not stand up and interrupt our friend’s submission, but we do respectfully maintain it.

GLEESON CJ: Relevant to that, Mr Catterns, is it right that the corresponding provisions in the AD(JR) Act are still there?

MR CATTERNS: They are, your Honour.

GLEESON CJ: So, whatever we decide in this case, apart from the consequences it might have for this case and any other decisions that are in the pipeline, it will also have large consequences for the AD(JR) Act.

MR CATTERNS: Yes, your Honour, except that, as follows partly from what his Honour Justice McHugh just said and, as his Honour Chief Justice Mason pointed out in Bond, you construe these things in context, the scope and purpose, and the scope and purpose of the Migration Act might be said in the next case where this decision is being applied to the AD(JR) Act to have a different scope and purpose than the AD(JR) Act ‑ ‑ ‑

KIRBY J: Does that mean that the fact that it is relevant to another Act but not to the present respondent would be a matter that this Court would take into consideration?

MR CATTERNS: I would respectfully submit so, your Honour, on the question of special leave.

KIRBY J: So we would be dealing with the matter, as it were, as a theoretical point of future relevance to the AD(JR) Act.

GLEESON CJ: Why would it not be relevant to this respondent?

MR CATTERNS: It is relevant to this particular case, I am sorry.

GLEESON CJ: Of course it is. The fact that the legislation has been amended for the future does not mean that what we decide in this case will not affect your client.

MR CATTERNS: Precisely, your Honour, but we would respectfully submit that the interests of justice in the particular case might weigh more heavily in the scales.

McHUGH J: But was the Court not told on the special leave application that there were other cases turning on this point?

MR CATTERNS: I am sure there are, your Honour. I was not there but I am sure there are. Of course, the section had not been repealed at the time of the granting of special leave.

KIRBY J: So the position is that it is still relevant to determine it for your client and the fact that it is repealed does not remove the importance of the legal point in another context. Thirdly, it is relevant to other people in the pipeline who are in the same position as your client. They seem to be three powerful reasons for not rescinding special leave.

MR CATTERNS: Yes, your Honour, but the relevance to the AD(JR) Act is less direct than it is to this Act. So far as this Act goes, although it does relate to people in the pipeline, it does not relate to future cases, the section having been repealed. As we have submitted in writing, without belabouring it, given the particular circumstances of the respondents here, using them as a vehicle to test another Act might be less attractive than to test the instant Act. Perhaps if I could come back in a moment to a little bit more on the submissions on (1)(g) versus (4)(b).

Just making good our submission that, in a sense, the decision is not justified – to use the phrase in (1)(g) – because it is based on these facts which did not exist, we were at 231, line 15. We pointed out that the first of the facts founded the strong finding of deliberately attempting to mislead the Tribunal. As our friends point out, factors two, three and four are not presently relevant, we having lost on those before the Full Court, but I do want to take the Court to factor two for a moment, because your Honours can see that the other fact which does not exist forms part of the reasoning here. I cannot say so as to vitiate it, but it shows the continued and expanded relevance of these two facts. Looking at about line 30 on page 231:

Following the shooting of the headman it is rather surprising that the aged applicant was taken into custody as he was quite well known in the community in spite of his rather misleading claims that he was “new” in Trincomalee.

So that is a reiteration of what we are about to see – if that is not putting it the wrong way around – as factor five. The quote, “new in Trincomalee”, is the other fact which does not exist, and, to some extent, at least, it infects factor two. Again, your Honours notice that he is being said to be misleading there.

Our friends took the Court to factor five at 233 and, as his Honour the Chief Justice pointed out, the phrase “claimed that he was new to Trincomalee” is the fact that the Full Court held did not exist. He did not claim that he was new to Trincomalee. But again, the forcefulness of the Tribunal’s finding, we submit, is important in determining whether or not the decision is based on it. It goes on at 48:

However in the Tribunal’s view the applicant in this declaration was attempting to create a profile and a reason for his arrest which he did not have.

Then the reasoning goes on, and your Honours know that the Full Court described some parts of this reasoning as being rather pedantic. Just finally ‑ ‑ ‑

McHUGH J: Can I just interrupt you to say that at page 7 of the special leave transcript, your predecessor said:

we would raise the question whether or not this is an appropriate vehicle, given that there are, according to the applicant, dozens, if not more, cases raising this question in –

The Chief Justice intervened and said:

That is a matter of concern. Presumably, having regard to the nature of the issue that the applicant wants to raise, any case will be highly fact-specific because that is what it is about.

So, obviously, the affidavit in support of a special leave application must have asserted there were dozens or more cases.

MR CATTERNS: Thank you, your Honour. We do understand that is the case, and they are preserved by the transitional provisions. Finally, at 235, there is the sentence that her Honour Justice Gaudron referred to:

The Tribunal is satisfied that the applicant has concocted his primary claims.

Then, in effect, recites them saying, “I do not accept them” over the next five or six paragraphs and that then leads to the ultimate finding that the applicant does not have a well‑founded fear of persecution. So, your Honours, we respectfully submit that the decision was based on those two particular facts in the way that the Full Court held. We do submit that – I am perhaps repeating myself – these are not just limited to facts in issue or to ultimate facts. As I have submitted, it is the subset of (g) which uses the word “evidence”.

May I just – a minor point – when his Honour Justice Wilcox referred to the “relevant fact”, I submit his Honour was just using a shorthand, referring to the fact earlier relating to the parents that had been held not to exist. His Honour was not placing any separate test on it.

GLEESON CJ: I have not read Curragh carefully enough to know the answer to this question but did the origin of this word “critical” in this context come from reading paragraph (b) in the light of paragraph (g)?

MR CATTERNS: No, your Honour, I think it comes from his Honour Justice Mason in Bond.

McHUGH J: It comes from Bond.

MR CATTERNS: At the very top of page 358, his Honour says:

If we put to one side the situation to which par (b) is directed (proof of the non‑existence of a fact critical to the making of the decision) ‑ ‑ ‑

GLEESON CJ: A possible point of view is that you can justify that by noting the relationship between (g) and (b) and concluding that a fact will only fall within (b) for the purposes of applying (g) if the existence of the fact is essential to the justification of the decision.

MR CATTERNS: Your Honour, I think I have submitted not as well as that, with respect – something to that effect a while ago. I submit that that probably is the way one reads the two together.

McHUGH J: But you answer it by saying, “Well, in terms of causation theory, it is sufficient if it makes a material contribution. It is still based on it”.

MR CATTERNS: Yes.

McHUGH J: It does not have to be, as they would say in some of the shipping cases, “the” cause it ‑ ‑ ‑

MR CATTERNS: The biggest fact.

McHUGH J: Yes.

MR CATTERNS: No, your Honour, I do submit that.

McHUGH J: Yes.

MR CATTERNS: But I think, with respect, what his Honour the Chief Justice put to me must be right because eventually we have to get through the (1)(g) hurdle and so it seems pointless to have a fact which is neutrally important enough to get through to (4)(b) but yet cannot come in under (1)(g).

McHUGH J: One view in your favour is that (4), in effect, defines the whole content of (g).

MR CATTERNS: They interrelate, your Honour. What “justify” means – “based on” gives content to “justify” and vice versa I suppose, your Honour.

McHUGH J: Paragraph (g) has a very special meaning and it is there in (4).

MR CATTERNS: Yes, your Honour, and it is long past the Broken Hill Case. His Honour Chief Justice Mason said that in Bond, obiter, because everything in Bond – this ground was not raised in Bond, the “no evidence” ground which was 5(1)(h) of the AD(JR) case was not raised in Bond. Put another way, the respondents in Bond did not seek to take on themselves the difficult burden of proving that certain facts did not exist. They attempted to argue error of law, and so on.

May I just take the Court very quickly to Bond 187 CLR 321 and remind your Honours that perhaps the most crucial question in the case was whether in challenging a decision under the AD(JR) Act you could challenge steps along the way to the decision as decisions or as conduct. His Honour the Chief Justice at 337, other Justices agreeing, concluded at about line 10 in the second paragraph:

That answer is that a reviewable “decision” is one for which provision is made by or under a statute.

Not interim steps. In other words, it is clear that we cannot regard the decision that he said, or the holding that he said “No”, as a decision. That has been clear since Bond.

McHUGH J: It has been clear since Chaney really.

MR CATTERNS: Yes, your Honour. That is not to say, his Honour goes on to say, that you cannot challenge factual findings in the context of challenging a decision. His Honour says that at page 338, point 5:

To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision are beyond reach. Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons . . . and the processes by which it is made.

Then, your Honours, at page 340 under the heading (c), his Honour begins to examine the question to which findings of fact on the weight of the decision can be considered. At the top of 341, his Honour says:

Of course an ultimate determination which depends upon a finding of fact vitiated by error of law or made without evidence is reviewable: see 5(1)(f) and (h).

Reminding your Honours that (h) is the equivalent to our (g) here.

In such a case the finding of fact may be challenged as an element in the review of the ultimate determination. But the point remains that ordinarily a finding of fact will not be susceptible to review independently of the ultimate decision.

It was in that context that his Honour made the remarks at the middle of the page that our friends took your Honours to. Judicial review ordinarily does not extend to findings of fact as such, but certainly it does to the extent that they may vitiate an ultimate decision.

Then his Honour over the next few pages rejects the attempt to use conduct as a vehicle to attack the steps on the way. Then, your Honours, just finally on the question of facts again, his Honour at 355 – it is really over the next four or five pages, which I will not go to, but his Honour does consider that and under the heading of “Error of Law” at the top of 358 there is the passage that I referred your Honours to a moment ago about “critical to the making of the decision”. Your Honours will note from the beginning of the first full paragraph on 358 that because:

the respondents do not seek to bring this case within s. 5(3)(a) or (b) –

which is our 476(4)(a) or (b) –

the ground of review in s. 5(1)(h) –

which is our (g) –

has no direct application here.

Then there is the passage our friends quoted in their submissions in the middle of the page:

to harmonize the two grounds of review, is to treat “error of law” in s. 5(1)(f) as embracing the –

old –

“no evidence” ground –

and the new –

“no evidence” ground in s. 5(1)(h) –

the present ground, your Honours –

as expanding that ground of review in the applications for which pars (a) and (b) of s. 5(3) make provision.

It is probably, with respect, that that leads our friends to make the fair concession that these provisions expand the common law beyond ultimate facts.

GLEESON CJ: But in between ultimate fact and a specific case there is a question of the level of particularity. Your argument is that in the present case the Tribunal based its decision upon the fact that your client, when he said “now”, meant “no”.

MR CATTERNS: Yes, your Honour, that he denied ‑ ‑ ‑

GLEESON CJ: That is what your argument amounts to, using the language of the statute and that, consequently, there was no evidence to justify the making of the decision.

MR CATTERNS: It is the making of the decision, yes. That is it in a nutshell, your Honour, and that is what the Full Court held, applying Curragh, subject to the distinctions our friends try to draw of Curragh, would have held. Your Honours, his Honour Justice Deane perhaps dealt with it more as a common law issue, if I may say so, at 368 and says about line 4:

The point can be illustrated by reference to a hypothetical case where a decision could be supported by either a finding of fact A or a finding of fact B and where there was probative material to support a finding of A but no probative material at all to support a finding of B. If, in such a case, the Tribunal stated that it made no finding about, and placed no reliance upon, A –

which there was material –

but based a reviewable “decision” on a positive finding of B, the Tribunal would have failed to discharge its duty to act judicially. Its decision would be based on a finding of fact which –

was not supported. And, your Honours, his Honour picks, at the bottom of the page - and your Honours can see that he nearly held, if I can call it - say so, that the ground was not made out - he goes to a fact, your Honours, at quite a low level - he descends to quite a low level, if I may can call it that, picking up your Honour the Chief Justice’s phrase, about five lines up about whether or not any witness had said, “When we gave our evidence to the Tribunal in 1986 we were only answering specific questions”.

That last-mentioned finding of fact was plainly and demonstrably wrong.

But his Honour holds, as a matter of reading the judgment, at the top of page 369, that the decision was not based on that.

Justices Toohey and Gaudron, we submit, also undertake an analysis which shows, even in this context of error of law, a preparedness to descend to particular facts.

McHUGH J: Can I, just before you leave the Chief Justice’s judgment, in his approach to 5(1)(h), he was influenced by the terms of 5(1)(f) and the “error of law” ground.

MR CATTERNS: Yes, your Honour.

McHUGH J: But the “error of law” ground in 5(1)(f) is framed in very different terms from the “error of law” ground in 476(1)(e). In (f) it was just sufficient that there was an error of law that had been made in the course of the conduct – could be any error of law, but 476(1)(e) is talking about a very special error of law. It says:

that the decision 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 –

so it is not just any error of law that is caught by 476(1)(e) and that distinguishes ‑ ‑ ‑

MR CATTERNS: It is hard to work out why they are not close to coextensive though, your Honour.

McHUGH J: Well, I am not sure. Under 476(1)(e) it might be an error of law in admitting evidence or rejecting evidence.

MR CATTERNS: I want to attack your Honour’s premise, which I agreed to, foolishly, your Honour. His Honour did not construe ‑ ‑ ‑

McHUGH J: It is always a mistake to agree with my major premise.

MR CATTERNS: His Honour did not construe (h) in light of (f); his Honour construed (f) in light of (h), because there was an argument that 5(1)(h) pulled no evidence entirely out of 5(1)(f) and his Honour said, no, but what it does is confines 5(1)(f) to the traditional “no evidence” ground and 5(1)(h) lives its own life, if I can put that crudely. So, it is the other way around, I would submit, your Honour.

In the end, his Honour is construing a different Act, and not particularly construing this. So it is obiter in any event, your Honour. We submit that - as our friends point out the legislative history described by his Honour Justice Wilcox, there was a ‑ ‑ ‑

McHUGH J: The reason I put it to you as I did was because what his Honour said at 358 about point 6 is:

The better view, one which seeks to harmonise 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 A.D.(J.R.) Act and to treat the “no evidence” ground in s.5(1)(h), as elucidated in s.5(3), as expanding that ground ‑ ‑ ‑

MR CATTERNS: Yes, your Honour.

McHUGH J: Here, it might be said, that rather than (g) being an expansion of the common law ground, when read with (4) and against the background of 476(1)(e), it is confined because the common law “no evidence” ground just cannot be caught under the present 476(1)(e). It is not an incorrect interpretation of the applicable law, and it is not necessarily - it usually will not be an incorrect application of the law to the facts because the argument is that there are no facts that would support ‑ ‑ ‑

MR CATTERNS: Your Honour, with respect, that would ‑ ‑ ‑

GLEESON CJ: Facts as found.

McHUGH J: Facts as found, yes.

MR CATTERNS: Fair enough, with respect, your Honour, and that would be consistent with the idea that (4) is a narrowing of (g).

McHUGH J: Yes. It may be for you and it may be against you, but it is exhaustive of whatever ‑ ‑ ‑

MR CATTERNS: Yes, it certainly is, your Honour. I accept that, with respect. In a sense, to say “narrowing” or “expanding”, does not take it very far.

McHUGH J: No.

MR CATTERNS: It narrows it in the sense that you have to prove it does not exist, in some senses but, on the other hand, it expands it to include that category of particular facts falling short, whatever that means, of ultimate facts. Their Honours Justices Toohey and Gaudron, we submit, also - for example at 378 point 5 also were prepared to descend to particular facts. This is under the error of law, or not authorised by the enactment, a fortiori, we would submit here. Their Honours say, at point 5:

The decision made by the Tribunal, concerning the sixth to ninth respondents -

they were the companies controlled by Mr Bond -

was founded on its factual findings and its conclusions concerning Mr Bond. That being so, any error attending those conclusions or findings is necessarily involved in -

their Honours use the phrase “involved in” rather than “based on” -

the Tribunal’s decision.

Their Honours go on:

Because any error attending the conclusions concerning Mr Bond and the Tribunal’s factual findings is necessarily involved in -

one has to go down to the facts. Then their Honours draw a distinction between something being involved in the decision and then, five lines from the bottom, an error not carried into the decision.

So, your Honour, we would respectfully submit that that assists our submission that these provisions allow us to go below the ultimate facts and include the facts of the kind found here. Your Honours, we can deal briefly with the last two issues. We have attempted to submit that we have come within (4)(b) and also within (g) and then the question is: does the fact that this is a matter of credit take it out of the section or that it relates to a matter, the penultimate step of which is lack of satisfaction. We submit not.

It really follows from our foregoing submissions that a finding on credit can be a crucial step leading to an ultimate decision, particularly a decision of the kind contemplated by the Migration Act. If pursuant to the decision‑maker’s or the Tribunal’s duty under section 430 the material facts are set out, including a finding of credit, and if that finding is based on a particular fact that does not exist, we respectfully submit that the fact that it has something to do with credit does not take us out of the provisions as they would otherwise cover us. To repeat, your Honours, the particular fact is not that he concocted the claims, it is those subsidiary or earlier facts leading to that.

Your Honours, then our friends submit that where a lack of satisfaction is involved, as the last step before a refusal to grant the visa, as opposed to a satisfaction when you are going to grant it, these provisions do not apply. Again, we would respectfully submit that there is nothing in the section that would suggest that. If, as is the case here, a decision‑maker’s lack of satisfaction is dependent upon a chain of reasoning exposed in the judgment and we can see a fact upon which that decision is based, then the fact that it is a non‑satisfaction as opposed to satisfaction is, we submit, irrelevant.

Our friends seem to base their submission on this in part on the fact that in the Tameside Case it was positive satisfaction. Well, that is fair enough and we accept that Tameside plays a part in the history of the sections, but that fact out of Tameside, we submit, does not overcome the wording of these provisions which, if we are right, includes factual steps on the way to an ultimate conclusion that you are not satisfied. They are our respectful submissions.

GLEESON CJ: Yes, Mr Basten.

MR BASTEN: Just a number of brief points, if I may. May I start with the point that your Honour Justice McHugh raised with my friend about the way Chief Justice Mason dealt with the interrelationship of the grounds. We would accept, with respect, what my learned friend said as to the order in which he dealt with them. He was, in effect, rejecting a submission that the “no evidence” ground, in effect, spoke exhaustively on that question and therefore allowed further room for the “error of law” ground. What your Honour put about 476(1)(e) is correct, of course, but we would not think that a restriction in 476 on the scope of the “error of law” ground would have any effect on the operation of the “no evidence” ground, which has been adopted without even skin grafts, I think – to use your Honour’s phrase. There were two changes in terminology which I noted which ‑ ‑ ‑

GAUDRON J: Was 476(1)(e) always in its present form?

MR BASTEN: Yes, there has been no relevant change at any stage to 476.

GLEESON CJ: When did 476 come into the Migration Act?

MR BASTEN: 1 September 1994, your Honour.

GLEESON CJ: Thank you.

GAUDRON J: And prior to that it came under the AD(JR) Act?

MR BASTEN: Yes, that is so. Secondly, in relation to two points arising from a decision in Curragh, one of your Honours - I think it may have been your Honour the Chief Justice - asked whether Curragh read the two parts of the provision in section 5, namely (1)(h) and (3)(b) together. As we understand his Honour the Chief Justice at page 221 at about point 8, that is what he does do, so that in giving effect to the two provisions, he does read them together. It is at the beginning of the final paragraph on the page.

GLEESON CJ: Yes.

MR BASTEN: We say, if you do that, you reach a coherent view that if a particular fact is truly one on which the decision is based, there must be no other evidence on which the decision could be justified, and that gives the effect to the terminology of both provisions. Secondly, in relation to, I think your Honour Justice McHugh’s comment about the plurality argument, there is reference in Curragh to the possibility of there being more than one particular fact. It comes at the bottom of page 220, your Honour.

McHUGH J: Yes, there are other cases as well.

MR BASTEN: There are other cases. In Curragh, it is not clear that they were making the suggestion that one could attack a number of particular facts. It sounds as if, in talking about links in a chain, you might perhaps be talking about a column, and that if you knock one block out of the column, then the whole, above it, collapses. So I am not sure that that is authority for the proposition that you can start attacking numerous facts on this basis, but there are, as your Honour says, other cases, though I am not sure whether they do not fall into this line of authority which would adopt a plurality approach. Thirdly, in relation to Aala, the fact-finding process in that case – your Honour Justice Callinan would recall – was the process which was flawed by the failure of procedural ‑ ‑ ‑

CALLINAN J: Yes, I have looked at it, and the Chief Justice observed that it is a natural justice case ‑ ‑ ‑

MR BASTEN: Yes, it is.

CALLINAN J: It is really a quite different case.

MR BASTEN: It is a different circumstance, yes. Just a minor point, as it were, in relation to the way my friend put the “now” for “no” argument. He suggested to your Honours that what the Tribunal had done was misread “now” for “no”. It matters not, perhaps, how it reached its conclusion but it could not have been that exercise, because the document, which was put in evidence first in the Federal Court – there is no evidence that there was any document before the Tribunal which contained that word. We dispute the suggestion that there are concomitant findings below. As I sought to point out, Justice Einfeld dealt with the matter on quite a different basis, realising that that particular matter was dealt with as part of the relocation claim, in circumstances where the Tribunal appears not to have accepted that Point Pedro was still uncleared of terrorists.

Finally, might I say this, that if the reagitating of credibility claims in a court is permissible in the way that has occurred here on the basis that a finding of concoction or disbelief is a particular fact, then that which your Honour Justice McHugh called the function of a tribunal par excellence has now become a matter for judicial review in the original jurisdiction of a court. Those are our submissions.

GLEESON CJ: Thank you, Mr Basten. We will reserve our decision in this matter.

AT 4.02 PM THE MATTER WAS ADJOURNED

[2001] HCATrans 575

14 November 2001