MIMA v W360-01a

[2003] HCATrans 656

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P82 of 2002

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Applicant

and

W360/01A

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 11 APRIL 2003, AT 11.09 AM

Copyright in the High Court of Australia

MS M.A. PERRY:   If your Honours please, I appear for the Minister who is the applicant for special leave.  (instructed by Australian Government Solicitor)

MR S.C. CHURCHES:   May it please the Court, I appear for the respondent.  (instructed by Refugee Advocacy Service of South Australia Inc)

McHUGH J:   Yes, Ms Perry.

MS PERRY:   Thank you, your Honour.  I wish to begin with a short overview of our principal points before then developing our submissions.  The central issue here is raised by the Full Court’s finding that the Tribunal was under an obligation to hear the corroborative evidence of the respondent’s witness as to his illegal departure from Iran.  That finding was made despite section 426(3) of the Migration Act, which vests a discretion in the Tribunal to obtain such further evidence.

This area in turn led the court, as a matter of substance, to determine for itself how that discretion should be exercised.  In elevating the discretion to an obligation, the Full Court departed fundamentally from the approach of other Full Courts.  As such, we say that the grant of special leave would resolve an apparent conflict in the approach of the Full Court in this case and other Full Courts.  The question is a very important one, because the decision would deprive the statutory discretion of any real content, in practical terms.  This is because the obligation was found to exist because the evidence, the corroborative evidence, might have affected the Tribunal’s assessment of the respondent’s credibility and that is an observation which could be applied with equal force to many cases before the Tribunal ‑ ‑ ‑

McHUGH J:   Ms Perry, the reasoning of the Full Court seems to be not that jurisdictional error was committed by the mere failure to accede to the request, but that the reasons the Tribunal gave indicated that it misunderstood the real question it had to decide in the case.  What do you say about that?

MS PERRY:   Your Honour, we say first of all, as a factual matter, that in fact there was a misconstruction of the Tribunal’s reasons by the Full Court, and in fact what the Tribunal had done was to say, “Well, even if I accept the truth of what it is that the witness has to say, that would not change my view on the credibility of the respondent on the critical aspects”.  More fundamentally, the court did not go any further than to say that because this ‑ having heard from this witness, might have affected the Tribunal’s view of the applicant’s credibility on his central claims, that in itself triggered an obligation which required the Tribunal then to hear the evidence of that witness.

So that it is not merely a case on the facts where there could be a dispute about what the Tribunal did or did not say in its reasons, albeit that we do take issue with the construction of the Full Court, but it is a more fundamental matter.  It goes to the question of whether or not the fact that something might add to the credibility of the applicant means that the Tribunal then must hear that evidence.

McHUGH J:   Where are the relevant passages in the Full Court judgments that you criticise?

MS PERRY:   As your Honour would be aware, the leading judgment is the judgment of Justice Carr, and Justices Lee and Finkelstein agreed with his Honour in his reasons.  The critical passage in Justice Carr’s reasons appears in the application book at page 48 starting at line 29.

McHUGH J:   Yes.

MS PERRY:   It says:

that the Tribunal . . . sought to reconstruct what might have been the evidence given by [the witness] and has stated that that evidence would not overcome the problem with the appellant’s evidence ‑

Then he found, without real elaboration, that:

the Tribunal so misconducted itself as to have fallen into jurisdictional error.  It deprived itself of the opportunity to consider relevant evidence having the capacity to corroborate the appellant’s claims in a material respect.

That was the heart of his Honour’s reasons.  Then his Honour ‑ ‑ ‑

McHUGH J:   What is meant by the expression “deprived itself of the opportunity”?

MS PERRY:  Well, your Honour, he does not ‑ ‑ ‑

McHUGH J:   As a legal matter.

MS PERRY:  As a matter of jurisdictional error, we would say that it is not indicative of any jurisdictional error.  In fact, what his Honour seems to have done was to say that the Tribunal failed to have regard to a relevant consideration. Now, as your Honours would be aware from the decisions in Yusuf and in Craig, for example, the sense in which that principle is applied is not to say in an open‑ended way, “Well, this might have been relevant”, “It might have affected my decision”, but to look at what it is that the Tribunal is bound, as a matter of law, to take into account.

HAYNE J:   What do you say about what appears at page 39 in the joint judgment from line 31 on over to the top two lines of page 40, which I had taken to be central to the reasoning of the joint judgment?

MS PERRY:  Your Honour, that is correct.  I might start just by pointing out that their Honours did agree with the reasons of Justice Carr and these reasons are additional.

HAYNE J:   I understand that.

MS PERRY:   What their Honours do, in pages 38 to 39, is they then start to shift initially the focus from the question of jurisdictional error, in the sense that I have identified it, to almost a question of procedural fairness.

HAYNE J:   I read the last six, eight lines of 39 over to 40 as saying that there is jurisdictional error constituted by asking the wrong question, demonstrated by showing that the Tribunal did not pursue the question, “Why did the appellant leave Iran illegally?”  That I understand to be the reasoning that is spelled out.  First, is that the reasoning spelled out?  Second, if it is, is it wrong?

MS PERRY:   I agree with your Honour’s analysis.  What they seem to be saying is that there was a failure to have regard to the possibility that this evidence might affect findings of credibility on one aspect of the applicant’s claims ‑ ‑ ‑

HAYNE J:   No.  Their Honours say:

Moreover, a finding that the appellant had left Iran illegally would also require the Tribunal to consider why the appellant had done so . . . One explanation might be that the appellant feared for his safety.

MS PERRY:   Yes, your Honour.  In fact the Tribunal, we say, did consider the question of why the appellant had left Iran and the court appears almost to have required the Tribunal to reconsider that question, having regard to the evidence that it says the Tribunal should have heard.  So it is not a question of the Tribunal having failed to consider the question of why the applicant left Iran.  More, it has not failed to address the statutory criteria which the Tribunal was bound to address by the Act.  But what, in effect, the court, as I have said, is trying to do is ask the Tribunal to revisit that finding and to reassess it.

HAYNE J:   Is it clear that the Tribunal in fact misdirected itself about the application of 426, in the sense that the Tribunal never read the second page of the request?  Is that clear?

MS PERRY:   The Tribunal never read the second page of the request.  However, what the Tribunal did nonetheless was directly to consider the discretion which exists under 426(3) to determine whether or not it should hear from this witness.  So there was no failure by the Tribunal to consider the exercise of its discretion and, we say, to consider it in appropriate form, in compliance with that provision.  I can take your Honour to those passages, if that would be of assistance.

With respect, what we say is remarkable about the decision of the Full Court is that the court gave no consideration to section 426(3) which was directly relevant and, in our submission, contradicted the Full Court’s approach.  That provision received only a passing reference in the reasons of the joint judgment, and no mention at all in Justice Carr’s reasons.  It is clear from the terms in which that provision is expressed that the Tribunal must take into account the applicant’s wishes to call a witness.  It does have a duty to consider the request, which the Tribunal did in this case, but is not bound to hear the witness’ evidence.

In that regard, I would just like to take up your Honour Justice McHugh’s invitation earlier to take your Honours to the passages where we particularly take issue.  If I might take your Honour to page 48 of the application book at line 30.  Your Honours will see the clear and, we say, puzzling finding that the Tribunal should have heard the evidence from the witness about the appellant’s illegal departure from Iran.  It did not leave that matter.  It did not remit the matter back to the Tribunal to reconsider the exercise of its discretion.  The Full Court actually took the further step, we say, impermissibly, of exercising the discretion for itself as a matter of substance.

HAYNE J:   Sorry, does that find reflection in the Full Court’s order?

MS PERRY:   No, your Honour.

HAYNE J:   I would not have thought so.

MS PERRY:   The point that we seek to make is that although the court did not make an order in terms that the Tribunal must call the witness, it intruded into the factual determinations of the Tribunal by itself, instead of asking the Tribunal to reconsider the matter, in effect reaching a view as to what the Tribunal itself should have done; how it should, in other words, have exercised that discretion.  We say that this is an important point, because in reaching that view what the Full Court did was it actually substituted its assessment of the potential impact of the witness’ evidence on the Tribunal’s findings as to credit, in place of the assessment which the Tribunal had made on these issues.  That is how we say ‑ ‑ ‑

KIRBY J:   I take the force of that submission, but the fact is that the Full Court has its function to play, just as the single judge of the Federal Court has, and the matter that concerns me is whether this is anything more than the response of the Full Court to the particular circumstances of the case.  It does not seem to be a matter of general principle.  Now, you have said in your written submissions that there have been differing approaches in the Federal Court to this question.

MS PERRY:   There have been, your Honour.

KIRBY J:   That might engage our attention, but otherwise it is just a particular case.  We have already been burdened by legislation with more of these cases than one would normally take by choice.  Why should we second‑guess the decision of this Court?

MS PERRY:   Perhaps if I might just address each of the points that your Honour has made.  The first point, in referring to the particular circumstances of this case, as I understand it your Honour is referring to the fact that the Tribunal did not receive the second page of the hearing form.  Can I say, in that regard, that that was not in fact a consideration which ultimately played any part in the Full Court’s reasons, and it is for that reason I would assume that it had not been challenged in the draft notice of appeal.

In this regard, the applicant had taken the appropriate steps to notify the Tribunal that he wished the witness to be called.  From the applicant’s perspective, he complied with section 426(2) and was entitled to consideration of his request under section 426(3), which was precisely what the Tribunal did.  It is difficult to see, in that regard, how the applicant could be treated as being in a better position because the Tribunal had not in fact received the second page of the form and was only in fact informed of the applicant’s request at the hearing.  In fact, the Full Court did not take that view.  It took the view that it was the failure to actually hear the evidence and thereby to allow it to influence its findings on credibility which was the critical issue.

With respect to the reasons why we say this does raise issues of general and public importance, I have already pointed to the existence of conflicting Full Court decisions.  In the written submissions reference is also made to the judgments of your Honour Justice Kirby and Justice Callinan in the decision of Muin, where again the issue of whether particular evidence should be called was addressed in the terms required by section 426(3).

The critical issue is that if one were to take the reasoning of the Full Court through to its logical conclusion, as I mentioned earlier, it would actually deprive the discretion conferred by section 426(3) to very little practical effect.  It is well known that issues of credibility are frequently in issue in application for protection visas.  If we follow through ‑ ‑ ‑

KIRBY J:   That would make it all the more important to allow applicants to bring forward witnesses whom they say reinforce their evidence.

MS PERRY:   Your Honour, I do not mean to derogate from the importance of that matter, but the statutory provision provides for the existence of a discretion and not an obligation.  But if we follow through the Full Court’s reasoning, it would seem to follow that the Tribunal ought invariably to hear potentially corroborative evidence from a witness, even on issues that do not go to the substantive claim for a protection visa, whenever the credibility of an applicant’s claim might be in issue.  This, I think, is really the heart of the decision, and this is really the reason for the particular concern about the nature of the decision.  It is that critical role that credibility played in the reasoning of the Full Court which really raises a very substantive issue.

HAYNE J:   Now, although 426 remains unaltered, the setting in which 426 now appears has been radically altered, has it not, by the Procedural Fairness Act?

MS PERRY:   It has, your Honour, although the error which the Full Court found here was not an error ultimately of a lack of procedural fairness with failure to ‑ ‑ ‑

HAYNE J:   I understand that.

MS PERRY:   So now that we have the benefit of this Court’s reasons in S157 we now know that at least there is scope for jurisdictional error to be a ground which invalidates the decision of a Tribunal under the Act.  So that the issue remains, we would say, an important one.  We do not see that the Procedural Fairness Act itself would impinge upon the public importance of this question, because it was not the way that the Full Court addressed the issue.

In short, then, we would say that the grant of special leave would resolve the conflict that exists in approach, which is a fundamental

difference.  Can you say the Tribunal is under an obligation to call a witness when it has complied with the requirements of section 426(3)?  The question is important because, as I have elaborated on and I do not wish to repeat myself, it would deprive section 426(3) of any substantive operation because issues of credibility regularly infect decisions of a Tribunal. 

The extent of the Tribunal’s discretion under section 426 raises issues which have to be dealt with on a daily basis by the Tribunal and which have not arisen for direct consideration by this Court, and we would say it is a very appropriate vehicle for these important issues to be addressed because there are no substantive factual matters in issue between the parties.  It would provide, in other words, a discrete vehicle for important issues to be addressed.  Unless there are other matters on which I can address your Honours.

McHUGH J:   Thank you, Ms Perry.  The Court does not need to hear you, Mr Churches.

A majority of the Court is of the view that the decision of the Refugee Review Tribunal to refuse to require the taking of evidence from the witness nominated by the respondent reveals that the Tribunal had misdirected itself, not only about matters relevant to that request, but more fundamentally about the question which it was required to consider.

Accordingly, a majority of the Court is of the view that an appeal against the decision of the Full Court of the Federal Court of Australia would enjoy insufficient prospects of success to warrant a grant of special leave to appeal.  Special leave is therefore refused with costs.

AT 11.30 AM THE MATTER WAS CONCLUDED