MIMIA v SGLB

[2004] HCATrans 9

[2004] HCATrans 009

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A256 of 2003

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Appellant

and

SGLB

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 FEBRUARY 2004, AT 12.17 PM

Copyright in the High Court of Australia

MR S.J. GAGELER, SC:   If the Court pleases, I appear with MR S.B. LLOYD for the appellant.  (instructed by Sparke Helmore)

MR S. WALSH, QC:   If the Court pleases, I appear with MR S.C. CHURCHES for the respondent.  (instructed by Refugee Advocacy Service of South Australia)

GLEESON CJ:   Yes, Mr Gageler.

MR GAGELER:   Your Honours, the three grounds of appeal arise out of three consecutive paragraphs in the judgment of Justice Selway in volume 2 of the appeal book at pages 339 to 340.  Before turning to those paragraphs in order, may we outline the facts upon which his Honour’s views there expressed were based.  A sufficient starting point is in volume 1 of the appeal book at page 54A, which is a letter from the respondent to the Tribunal on 20 May 2002, referring to his having developed severe depression and psychological problems and requesting a postponement of the hearing.

KIRBY J:   Now, that was before the second hearing?

MR GAGELER:   Yes.  I am picking up the chronology partway through at the most relevant point.  There is then the response from the Tribunal the following day at page 55A, agreeing, at about line 16, to the postponement of the hearing, but suggesting a short talk, referred to elsewhere as a pre‑hearing conference, by video on 30 May.  For reasons which emerge elsewhere, that pre‑hearing conference was itself postponed until 20 June.

In the meantime, what your Honours will see at page 60A is that the Tribunal on 11 June 2002 wrote to the attention of the psychologist at the Woomera Detention Centre referring, in the first paragraph, to the respondent’s letter of 20 May, referring in the next paragraph to the postponement of the pre‑hearing conference, referring then in the third paragraph to there being a letter on file from a Mr Cox, expressing concerns about the respondent’s fitness to present his case.

GLEESON CJ:   Mr Cox is a barrister, is that right?

MR GAGELER:   It appears so, and it appears that it was Mr Cox who conducted the hearing before the Federal Magistrate, which was the subject of the appeal to Justice Selway.  Referring then, in the final paragraph on page 60A, to the member being grateful if the psychologist could provide a written assessment of the respondent’s general state of mind “so that she can decide how best to conduct the hearing”.  Now, before any report in response to that letter was received by the Tribunal ‑ ‑ ‑

KIRBY J:   Could I just ask, is that a normal thing?  I have not seen that in many cases.  Does that arise out of the so‑called self‑harm or attempted suicide on the part of the respondent?

MR GAGELER:   Yes, your Honour is right.  It is not normal, and what your Honour will see is that the Tribunal went to great lengths in the circumstances of this particular case to be satisfied as to the respondent’s ability reasonably to take part in the hearing.

KIRBY J:   According to Justice Selway, it went to too great lengths, doing a little bit of psychoanalysis for itself.

MR GAGELER:   I want to set up the facts and then I will turn to Justice Selway.  Your Honour, before any report in response to that letter was received by the Tribunal, a pre‑hearing conference was held on 20 June.  It is referred to in the Tribunal’s reasons ‑ ‑ ‑

CALLINAN J:   Mr Gageler, who were personally present on 20 June?  Was it done by telephone, or what?

MR GAGELER:   If your Honour turns to page 280 of volume 2, the respondent appears to have been present by video and at the top of page 281, about line 7, it said that his:

new migration agent was present [by video] at the conference and was given the opportunity to speak [to him] in private.

KIRBY J:   And he had a Farsi interpreter?

MR GAGELER:   Yes.

KIRBY J:   I think there seems to have been some confusion.  As I understand it, the respondent, though of an Arab ethnicity, did not write Arabic – probably he was not taught it in school – but he was able to write and speak some Farsi.

MR GAGELER:   Your Honour is absolutely right.  It appears from some of the country information that Farsi, and not Arabic, was taught in school.  It appears that he spoke Arabic at home but was ‑ ‑ ‑

KIRBY J:   At home, but never learnt to write it.

MR GAGELER:   That is right.  He did say to the Tribunal, in a passage to which I will come, that he was more comfortable speaking in Farsi than in Arabic.  What your Honours see at the bottom of page 280, line 24, is that:

On 20 June 2002 the Tribunal as presently constituted held a “pre‑hearing conference” with [the respondent].  This was necessary because [he] had asked the Tribunal to postpone his hearing indefinitely because of his mental state.  The Tribunal understood that he had “self‑harmed” on several occasions and wished to discuss with him whether he wanted to give oral evidence and if so, when he might feel able to do so.  One the day of the pre‑hearing conference [he] expressed a wish to give oral evidence as soon as possible, and it was agreed with him that the hearing would take place on 26 June 2002.

Then there is a reference, as your Honour has pointed out, to the Tribunal being concerned to overcome any difficulties in communication.  There is then the reference to the migration agent, to which I have already drawn the Court’s attention.  There is then a reference to the Tribunal arranging for an assessment of his psychological condition, which your Honours see had already been the subject of the letter of 11 June.

What then occurred at the hearing on 26 June is recorded in the reasons of the Tribunal at pages 281 and following.  There is a heading about line 12:

The Tribunal hearing of 26 June 2002

This hearing was conducted by video link.  Present, via telephone, was [the respondent’s] migration agent . . . and a support person known to [the respondent], Mr Mark Cox.

There is then over the next several pages a recount, almost blow by blow, of what occurred in terms of questions and answers at that Tribunal hearing on 26 June.  Your Honours might note towards the bottom of page 286, about line 25, a question is recorded where the Tribunal asked the respondent to explain why his statement to the Department at an earlier date had included a description of events which was very different to that which he had just given in oral evidence.  There was a response recorded then at the bottom of the page and the top of the next page. 

KIRBY J:   Could I just ask, is this the statement that is said to have been written down by the Tunisian friend in the detention centre, using an Arabic which was different from the Arabic used by the respondent?

MR GAGELER:   That is right, your Honour, yes.  Then there is another question and answer recorded at the top of page 287.  Then we come to the second full paragraph on page 287:

I asked [the respondent] what problems he thought he might have if he went back to Iran now, and what might motivate them.  He responded that he would take his life rather than return to Iran.  At this point in the hearing [the respondent] became highly agitated.  As it was apparent that he was not in a condition to answer any further questions, I agreed to send my final questions to his new adviser (who was present via telephone link) in the hope that she could obtain his responses to them.

Now, your Honours, it appears that it was on the same day but after the hearing that the Tribunal received the written assessment from the psychologist at Woomera.  Your Honours will see in volume 1 of the appeal book at page 56A the letter from a registered psychologist at Woomera which, although are dated at about line 16 “18/6/02”, was, as your Honours will see from the fax transmission note at the top of the page, sent to the Tribunal in Sydney at 14:41 on 26 June, which was the day of the hearing.

What that letter said at line 26 was that the respondent, in the opinion of this psychologist, “has not been interested in discussing his past”.  However, the psychologist did not believe that he could not recall his past, and the paragraph goes on to develop that.  At the top of the next page it is said in summary the respondent:

probably has the ability to be more articulate than he presents but whether he co‑operates in that process will depend on his frame of mind, and if he believes his cooperation will be beneficial to his situation.

There was then the following day, at page 58A, a letter from the Tribunal to the respondent’s adviser raising a number of matters for comment.  Your Honours will note that one of the matters raised, in particular, at the bottom of page 58A, is the apparent discrepancy between the different accounts of events that had been given by the respondent, but most relevantly for present purposes at page 59 at about line 12 it is said:

The Tribunal has now received an assessment of [the respondent’s] general state of mind (a copy of the Tribunal’s letter requesting this, dated 11 June 2002, and the letter of assessment dated 18 June 2002, are enclosed).  The Tribunal could infer from it that the inconsistencies in [the respondent’s] account do not arise from blurred or confused recall.

Then at the bottom, about line 16, it is said: 

[The respondent] is invited to comment on this information.

The comment, in the form of a detailed written response, then appears at page 62A.  It is a letter of 30 July 2002 from the respondent’s adviser to the Tribunal.  Attached to that letter, at page 75A and following, was an affidavit from the respondent dated 30 July 2002.  What it did, as your Honour Justice Kirby has already adverted to, was to give a detailed explanation as to why there were these apparent inconsistencies in statements that the respondent had made from time to time about his experiences in Iran.

KIRBY J:   The passages on 66 and 67 are also relevant, I think.

MR GAGELER:   Yes.  Then the letter of 30 July, as your Honour has said, at page 66, sought specifically to deal with point 4 in the Tribunal’s letter concerning the psychologist’s assessment.  What is said is developed over a number of pages; can I take your Honours to, I think, the highlights.  At line 16 on page 66, after referring in the previous sentence to Mr Cox’s observations, it is said:

We are not attempting to impugn the Woomera Camp psychologist’s ability, but contend that a further, more independent and expert assessment be undertaken to determine [the respondent’s] state of mind and whether there can be justified links to his past claims of trauma and persecution.  In other words, an expert assessment to determine the source of such behaviour and whether it stems from serious Post Traumatic Stress Disorder (PTSD).  We consider that the Tribunal has a duty to ask the question about [the respondent’s] anger and the source of that anger.

There is then, further down, at about line 23, a reference to a report by a Dr Stuart Turner entitled “Discrepancies and Delays in Asylum Seekers”.

Over the next few pages what your Honours will see is a number of extracts from that document.  The document itself was not provided.  At the bottom of page 68 there is an extract from the introduction where Dr Turner had stated that:

“concerns (a) the significance of discrepancies between accounts and (b) delays in disclosing a history of organised violence”.  He discovered that “in a significant proportion of cases there is a decision to refuse based upon an apparent belief that a discrepancy between two accounts of an experience of persecution indicates that fabrication has taken place.  The nature of any relationship of this kind requires further consideration in the light of evidence.”

and

“Whilst it is entirely possible that discrepancies between different accounts are consistent with fabrication there is a need to demonstrate this relationship.  It cannot be assumed, especially as there are also other explanations which do not seem to be given adequate weight in the decision making process.”

There is a further quotation at the top of the next page and then there is a submission about line 12:

We submit that it is evident that [the respondent] is suffering from some form of psychological difficulty, which is complicating his giving of evidence with regard to his claims. 

At page 70, the next page, your Honours will see a reference, about line 10 through to line 15 specifically to what is described as post traumatic stress disorder.  The result, your Honours, was a letter from the Tribunal – that appears at page 87A – a letter back to the respondent’s adviser of 6 August:

The Member has noted your request that your client . . . be assessed by a second psychologist but, after careful consideration, has decided against this course of action.  Her reasons will be set out in the Tribunal’s decision.

The reasons, your Honours, are then set out in volume 2 of the appeal book at page 299.  Picking them up at about line 18, it is said:

It is the case that [the respondent’s] evidence has changed over time as to his family’s, and his own, problems in Iran after the end of the war in 1988.  The Tribunal is asked to accept, in brief, that he may be suffering from Post Traumatic Stress Disorder, and that this has led to his not revealing all his claims from the outset, and has also given rise to some confusion in his description of particular events.  I have not agreed to his adviser’s request that he be assessed by a psychologist in order to confirm this.  That is because I consider it highly likely that [the respondent] is suffering from PTSD, as indicated by his repeated incidents of serious self‑harm while in detention.  I therefore propose to accept that his ability to give evidence clearly has almost certainly been influenced by this.  As to whether his current condition is a consequence of Convention‑related events in Iran, (rather than during his period of over two years in detention in Australia, for example), it is for the Tribunal to make findings on the events which [the respondent] claims led to his decision to leave Iran.

What your Honours will then see at the bottom of that page, and over the top of the next page, is reference to the lengths to which the Tribunal went to make sure that the respondent was able to communicate without difficulty.  It is said at line 8 at page 300:

Thus, rather than rely on the claims made by [the respondent] on various occasions before that hearing, I propose to treat the oral evidence given by him at the hearing, coupled with the content of the written submissions from his adviser (30 July 2002) and himself (30 July 2002) –

that is a reference to the affidavit –

after the hearing, as an accurate reflection of the claims he wishes to make.

Then it is said – line 10: 

Firstly I have considered below the incidents in which he himself claimed to have had difficulties with the Iranian authorities.

Then, your Honours, there is a very detailed point by point consideration of those claimed difficulties.  The only one I need to take your Honours to for present purposes, because it is adverted to by Justice Selway, is at page 303, line 20, a dot point, “Events after release”:

At the Tribunal hearing [the respondent] gave clear oral evidence that he was living at –

a particular address –

until the day he travelled to Tehran to leave the country.

That is a reference to what he said at the hearing that is recorded at page 284, line 5.  I omit the next couple of sentences, then it says:

However, when he was invited in writing after the hearing to explain why the authorities might wish to detain him again, given that he had been released from detention and had been living in Ahwaz for a further six months or so before leaving Iran, he claimed that he had been in hiding in –

a particular village –

in the countryside, with a friend, throughout the entire period –

That is a reference, your Honours, to what appears in his affidavit, volume 1, page 82.  What the Tribunal then says is:

These two assertions as to his whereabouts in the months leading to his departure from Iran are entirely irreconcilable, and he has not provided any explanation as to why they differ.  I consider untrue his claim to have been in hiding throughout his last six months in Iran.  I am satisfied that he was living at his family home throughout that period.

In other words, the Tribunal, having accepted, at the top of page 300, that the claims that were being made by the respondent ought be treated as those made at the hearing and subsequent to the hearing in writing, was confronted with an inconsistency in those claims and had to choose between two inconsistent versions of the same event.  The conclusion of the Tribunal then appears at page 306, line 15:

I have no doubt that [the respondent] does not want to return to Iran, and that he may have a strong subjective fear in relation to doing so.  However for the reasons set out above I find that [the respondent] was not at risk of being persecuted for a Convention reason when he left Iran, and that he does not now have a well‑founded of Convention–related persecution.

That leads to the ultimate conclusion on that page, about line 30, which is expressed in the terms of section 65 of the Migration Act as a lack of satisfaction that the prescribed criteria for the grant of a protection visa are fulfilled.

Your Honours, we then go to the judgment which, at the bottom of page 338, sets out the passage from the Tribunal’s reasons, to which I have taken the Court at page 299.  His Honour then goes on over the next two pages to discern in that passage three errors which are said to be errors of jurisdiction.  May I take them in turn.  The first, it is said in paragraph 15 that:

there is simply no evidence before the Tribunal upon which it could be satisfied that the appellant was suffering from PTSD . . . But the Tribunal was not entitled to diagnose the appellant as suffering from PTSD without evidence.  To do so was an error as to jurisdiction.

Now, your Honours, there are a number of problems with that analysis.  Entirely at the level of fact it is, in our submission, impossible to say that there was no evidence before the Tribunal upon which it could infer, even reasonably infer, that the respondent was suffering from PTSD.

CALLINAN J:   But the finding was favourable, highly favourable, to the respondent.

MR GAGELER:   That is point two, your Honour.

CALLINAN J:   It is just so favourable it did not matter.

MR GAGELER:   Exactly, your Honour.

KIRBY J:   Yes, but it is a question of whether it was accurate, whether that was his problem or whether there was some deeper other problem, and that is not a matter, so it is said, on which the Tribunal could rely on its own expertise.

MR GAGELER:   Your Honour, may I take the points in turn.  The first point ‑ ‑ ‑

KIRBY J:   Would you identify what the three points are again just so that I can keep it in my mind as you make your submission?

MR GAGELER:   The three errors in his Honour’s – your Honours, can I use shorthand – paragraph 15, paragraph 16 and paragraph 17.  I will come to each of them in turn.  I am now dealing with the error in paragraph 15, page 339.  I was identifying problems with what his Honour had said and the first problem ‑ ‑ ‑

KIRBY J:   You could not resist getting into the argument, though.  You started to ‑ ‑ ‑

CALLINAN J:   No, I provoked it.  It was not your fault, Mr Gageler.

KIRBY J:   I think he provoked you.

CALLINAN J:   I am not easily provoked.

MR GAGELER:   I am not laying any blame, your Honours.  Your Honour, I see that it is a quarter to one.

GLEESON CJ:   We are sitting on till one o’clock.

MR GAGELER:   If the Court pleases.  The first point, your Honours, was that there was material before the Tribunal which allowed, in our submission, an inference, and a reasonable inference, that the respondent was suffering from PTSD.  First, there was the history of disturbed behaviour to which the Tribunal expressly referred.  Secondly, there was the Tribunal’s own observation of the respondent in the pre‑hearing conference and during the hearing.  Next, there were the observations of the respondent contained in the adviser’s letter, particularly at page 66, and, finally, there were the extracts from Dr Turner’s report contained in the same letter.

HAYNE J:   I am not quite sure why you open it at that level, Mr Gageler.  First, what was the content of PTSD as the Tribunal was referring to it?  I mean, surely the point is, is it not, that the Tribunal was making an assumption in favour of the applicant in approaching the evidence he gave.

MR GAGELER:   Your Honour, that is Justice Callinan’s point.  It was going to be my second point.

HAYNE J:   I understand that.  Once they start referring to PTSD, there is a real question about what is meant by that.

MR GAGELER:   Yes, and what would flow from it, your Honour.

HAYNE J:   Exactly so.

KIRBY J:   But the post traumatic stress disorder was on the second page of the letter.  The first page of the letter from the adviser to the respondent said some kind of psychiatric disorder, and then they volunteered post traumatic stress disorder on the second.

MR GAGELER:   That is right.

KIRBY J:   The issue that Justice Selway seems to have latched on ‑ ‑ ‑

MR GAGELER:   Yes.  What they seem to be saying in the letter was possibly two things.  One is that investigation of post traumatic stress disorder might count in the respondent’s favour by being able to link his current disorder to the experiences that he said that he had in Iran, that is, it may have corroborated what he said about that.

Secondly, but most significantly, what was being sought to be drawn from this reference is a response to the point that had been raised in the Tribunal’s letter at page 59, that is, that the Tribunal could infer that the inconsistencies in his evidence do not arise from blurred or confused recall.  It was substantially in response to that that one had this extensive reference to his psychological condition linking it back to Dr Stuart’s report and the submission made at page 69, line 12:

We submit that it is evident that [the respondent] is suffering from some form of psychological difficulty which is complicating his giving of evidence with regard to his claims.

The Tribunal, in substance, was prepared to accept in the respondent’s favour that he was suffering from some form of psychological difficulty which was complicating his giving of evidence with regard to his claims and the Tribunal was prepared to accept the label which the adviser wished to put on that difficulty.

KIRBY J:   The question, good or bad, that Justice Selway presents by his decision is it is enough where it goes to the heart of the capacity of a person to give his evidence accurately and in his best interests to raise the issue to alert the Tribunal to its obligation, if it thinks that that is so, that this is a person competent to give evidence and that it is not enough for the Tribunal then to accept or rely on a proposition by lay people, such as the adviser, as to the nature of that evidence and how it might affect that person’s testimony.

MR GAGELER:   Your Honour, that is, if I may say, the third ground of appeal that relates to paragraph 17 and I will certainly address that.

GLEESON CJ:   You are dealing with the first of the problems to which Justice Selway referred by introducing one in paragraph 15, then referring to what he called the second one in paragraph 16, and what he called the third one ‑ ‑ ‑

MR GAGELER:   Yes.

GLEESON CJ:   The first one, which you are on at the moment, was a “no evidence” point.

MR GAGELER:   Yes, a pure “no evidence” point.

GLEESON CJ:   As appears from the second sentence in paragraph 15 and the second‑last sentence in paragraph 15.

MR GAGELER:   Yes.  So the two responses so far to Justice Selway in paragraph 15 are, one, there was evidence; two, in any event, the suggestion which the Tribunal took up, even if there were no evidence and it was purely a matter of assumption, was a suggestion made on behalf of the respondent and was one which worked in the respondent’s favour.

KIRBY J:   Can I ask you – and I ask this interrogatively, because I do not know what the answer is – is it an answer to a “no evidence” ground that there is some evidence which is from an inexpert source on a matter upon which the person who has put that evidence in is not competent?

MR GAGELER:   Your Honour, that probably raises the question of what is the underlying rationale of the “no evidence” ground as a jurisdictional error.  May I seek to address that in this way.  Leaving to one side the effect of the privative clause, which I will seek to address separately, in our submission, at its highest, the “no evidence” ground of jurisdictional error is a corollary or reflection of the state of satisfaction referred to in section 65 of the Act as one to be formed reasonably on the material before the decision‑maker.  In other words, it is a reflection of the principle of implication that where a statute refers to an opinion or state of satisfaction ‑ ‑ ‑

GUMMOW J:   Hetton Bellbird.

MR GAGELER:   Hetton.  The actual words that I have used, your Honour, I drew from Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 150, paragraph 34, where in footnote (57) a large string of citations are given, including Hetton.  If that is the principle from which the ground springs, then a “no evidence” ground really becomes one of saying, by reference to the evidence, that the opinion purportedly formed as the basis of jurisdiction was not one formed reasonably on the material before the decision‑maker.  So there is no black and white answer, a priori reason ‑ ‑ ‑

KIRBY J:   We would have to be careful that we did not say anything that ran across the fact that throughout this country there are specialised tribunals.  The Dust Diseases Tribunal in New South Wales, for example, would not receive basic data about the nature of various dust diseases every time it has a case.  It takes that for granted, and that is the whole purpose of setting up such a tribunal.  The question that is raised here by Justice Selway’s reasons is, was this Tribunal, with its acquaintance with people in detention centres who attempt suicide and so on, sufficiently competent to accept and act upon a statement which was one of the hypotheses presented by the applicant’s advisers, who are not themselves psychologists or psychiatrists?

MR GAGELER:   Your Honour, at the end of the day the question, in our submission, would need to be:  was the Tribunal’s ultimate lack of satisfaction in terms of section 65 of the Act one that was not formed reasonably on the material before it?

CALLINAN J:   But, Mr Gageler, in response to Justice Kirby there was a report by a psychiatrist, Stuart Turner.

MR GAGELER:   Yes.

KIRBY J:   That was not in this case though, that was general material ‑ ‑ ‑

CALLINAN J:   But it was before the Tribunal, was it not?

MR GAGELER:   There were extracts from the report before the Tribunal in a letter.  The report itself was not before the Tribunal.

KIRBY J:   It did not relate to the respondent though, I think, is that correct?

MR GAGELER:   No, it spoke in general terms and the letter that quoted it sought to relate it to the circumstances of the respondent, yes.  So, your Honours, can I say this, you are relating the principle to the facts in this case.  Even if it were said that the Tribunal simply made assumptions here unsupported by the evidence in any way, what were those assumptions?  They were assumptions really of adjectival fact urged at the behest of the respondent and they were assumptions of fact which, if not made in the respondent’s favour, may well have resulted in an adverse assessment of his credit.  So even if this were pure assumption, it does not get into the rule of no evidence.  But, as I have said, it was not pure assumption.  There was material before the Tribunal which allowed reasonable inferences to be drawn.

Your Honours, I have referred to the principle of law.  Can I give your Honours just a couple of other references.  One is in Ex parte Applicant S20/2002 198 ALR 59 at 70, and particularly in paragraph [54], where instructing me as to the error of my submission in that case, your Honour Justice Gummow with Justice McHugh said:

The introduction into this realm of discourse of a distinction between errors of fact and law, to supplant or exhaust the field of reference of jurisdictional error, is not to be supported.  The “jurisdictional fact” which supplies the hinge upon which a particular statutory regime turns may be so identified in the relevant law as to be purely factual in content.  It was to prevent litigation directly on such questions of fact that legislatures stipulated the opinion of the decision‑maker as to specified matters.

Importantly, that in turn led the courts to treat the formation of the statutory state of satisfaction as reasonable and thus deposit some criterion for the assessment of the factual elements which went to supply that state of satisfaction.  Your Honours then give Melbourne Stevedoring as an example of a case where an administrative tribunal was unable to be reasonably satisfied on the evidence before it of ‑ ‑ ‑

GUMMOW J:   There may be some looser statements in Craig v South Australia 184 CLR 163 at 179. They certainly were not endorsed in Plaintiff S157.

MR GAGELER:   No.  Your Honours, a case that just occurred to me as having bearing upon the present issue this morning is Council of the City of Parramatta v Pestell 128 CLR 305, in particular in the judgment of Justice Menzies at pages 322 to 323. Your Honours do not have the volume in Court, but that was an opinion case and what Justice Menzies said at pages 322 to 323 is entirely consistent with your Honours Justices Gummow and McHugh’s analysis in S20.  The way I pick that up, your Honours, is that it was that case that was drawn upon by Justice Wilcox in Prasad v Minister for Immigration and Ethic Affairs 6 FCR 155 that gave rise to the line of “failure to inquire” cases, but it has the same root principle – the reference to Pestell being at 168 to 169.

GLEESON CJ:   How long do you expect to require?

MR GAGELER:   I will be no more than 45 minutes in‑chief.

GLEESON CJ:   How long do you expect to be, Mr Walsh?

MR WALSH:   I would imagine we would complete by the end of the day, your Honour, I mean the normal Court sitting day.

GLEESON CJ:   We will extend – we have already extended it.  We will resume at 2.00 pm and we will finish at 4.00 pm and we would ask counsel to agree between themselves on a division of time to give them enough time to say what they want to say.

MR WALSH:   Certainly, your Honour.

AT 1.00 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

GLEESON CJ:   Yes, Mr Gageler.

MR GAGELER:   Your Honour, subject to returning to the effect of the privative clause, we have said what we want to say about paragraph 15 at page 339 and ground 1 of the appeal.  We move next to paragraph 16 and ground 2 of the appeal.

KIRBY J:   What are the big conceptual labels you would have on 15, 16and 17?  How do I describe them to myself?

MR GAGELER:   Your Honour can call 15 “no evidence”.  Your Honour can chose your Honour’s own label for 16 – I do not have one – and your Honour can call 17 “competence”.

KIRBY J:   Very well, I will try and invent one.  I will let you know before the day is out.

MR GAGELER:   Yes, I am open to suggestions, your Honour.

HAYNE J:   That is a very bold thing to say in this place.

MR GAGELER:   Paragraph 16 then identifies what his Honour says is a “second problem”, being that:

even if [the respondent] is suffering from PTSD there was no evidence before the Tribunal, other than the quotations from the Turner report referred to above, which would enable the court to assess the effects of PTSD on the creditability of [the respondent].

This, of course, was an ex tempore decision and what his Honour said about “court” is probably a reference to ‑ ‑ ‑

KIRBY J:   Apart from the prejudicial effect that you are trying to work in, many good judgments are given ex tempore.  I have given a few myself.

MR GAGELER:   His Honour has used the word “court” ‑ there is a reference at about line 16, “the court”.  He probably meant “the Tribunal”.  It is a slip: 

As the above quotation makes clear, the Tribunal was prepared to rely upon the diagnosis of PTSD in relation to “his ability to give evidence clearly”.  It is not altogether clear what this means.  What is clear though is that the Tribunal nevertheless made credit findings based upon inconsistencies in his evidence.

GUMMOW J:   Yes, so what?

MR GAGELER:   Your Honour, it is a rhetorical question – I have no answer.  Then there is a reference to the way the Tribunal dealt with those two inconsistent assertions, to which I have drawn your Honours’ attention at the bottom of page 303.

KIRBY J:   But is not the suggestion his Honour is making, good or bad, that if only, the matter having been alerted, the Tribunal had insisted upon an expert instead of going into the realm of expertise itself, that that would have meant that it could have clarified these matters instead of taking upon itself the psychiatric analysis and evaluation?

MR GAGELER:   Essentially I believe that is what his Honour is getting to.  At the last two lines on the page, he says:

Having (wrongly) diagnosed that the appellant was suffering from PTSD it was an error of law for the Tribunal then to proceed to make credibility findings in relation to the appellant’s evidence without evidence as to what effect the PTSD ‑ ‑ ‑

GLEESON CJ:   Well, a possible summary of the second would be legally erroneous finding on credit.

MR GAGELER:   Yes.  Thank you, your Honour.

KIRBY J:   I am indebted to the Chief Justice.

MR GAGELER:   Your Honours, can we say a number of things about what his Honour has there said and I hope in doing so answer your Honour Justice Kirby’s concern.  First, at the level of fact it is, in our submission, a stretch of language to say that the Tribunal made credit findings based on inconsistencies in the respondent’s evidence.  In the passage to which I have already taken your Honours – I will not return – what the Tribunal said was that the respondent had given two inconsistent versions of events to the Tribunal, one in the hearing and one in the affidavit.  Clearly enough, the Tribunal in finding the facts had to choose between those two inconsistent versions.  The Tribunal did not anywhere say that it took the fact of inconsistency into account against the present respondent.

KIRBY J:   But would that not be the inference, to refer to inconsistencies?

MR GAGELER:   No.  It is simply saying that, “There are two versions and I have to choose between the two and I choose the version given to me orally at the hearing”.

KIRBY J:   Is the affidavit – it was prepared with the assistance of somebody in the detention centre who was from Tunisia who spoke a different form of Arabic?

MR GAGELER:   It says so, yes.

KIRBY J:   Well, that evidence was before the Tribunal and therefore before the judge.

MR GAGELER:   Your Honour, it simply comes down to this:  for a tribunal to have to choose between two different versions of events given by the same witness does not necessarily involve making a finding of credit about that witness.  It is a matter of choosing between two different stories, and that is all that ‑ ‑ ‑

GLEESON CJ:   As Justice Myers once said in a famous case in Sydney, it is oath against oath.

MR GAGELER:   Effectively, yes.

GLEESON CJ:   When somebody tried to amend his affidavit.

KIRBY J:   Yes, but we are dealing here with a person who is obviously distressed and sick and claims to be a refugee.  The decision is very important to him.  He is in a refugee camp.  He does not have a lawyer.  He looks to somebody else in the camp to help him to prepare an affidavit.  That person is from Tunisia, he is from Iran, and they speak a different form of Arabic.  Then some point is made on the fact that his affidavit is inconsistent with what he says orally.

MR GAGELER:   The only point that is made is the point where the Tribunal really started, that is, giving this respondent the benefit of the doubt concerning the inconsistencies in his evidence, I, the Tribunal, nevertheless have a statutory duty to make up my own mind as to what the events that occurred in Iran were.  That is all the Tribunal was doing in this passage at the bottom of page 303 to which his Honour refers at page 339.  That is one point to make about it.

The second point, again, at the level of fact, is that it was wrong to say that there was no evidence before the Tribunal as to the effect of PTSD on the respondent’s ability to give evidence.  There were the extracts from the Turner report, which his Honour acknowledges in paragraph 16.  Importantly, what the adviser was seeking to draw from the Turner report at volume 1, page 69, line 12 – I have drawn your Honours’ attention to this before – was that it was evident that the respondent was:

suffering from some form of psychological difficulty, which is complicating his giving of evidence with regard to his claims.

That is the substance of what was accepted by the Tribunal, that the PTSD which it was prepared to infer was complicating his giving of evidence with regard to his claims.

At the level of principle, the answer is that, having made the inference or assumption in the respondent’s favour that he was suffering from PTSD and that that affected his ability to give evidence, it was, in our submission, entirely a matter for the Tribunal what weight was to be given to that factor in assessing the evidence.

KIRBY J:   The argument against that is that the Tribunal is not to be taken to know what PTSD – what its incidence is.  I do not know what PTSD involves.  I mean, I know what it is for people to be stressed, but if it is a syndrome, unless there is some expertise in the Tribunal which can be taken to be had, it may be the case – the point being made, as I understand it, is that they were not experts on this.  They should have, being alerted to it, ensured that there was evidence available to them.  They were asked to do so and they did not.

MR GAGELER:   Your Honour, the evidence about PTSD that was before the Tribunal, particularly at page 70 ‑ ‑ ‑

KIRBY J:   This is the doctor in England, talking generally.

MR GAGELER:   The extract from Dr Turner’s report suggests that, although the label may have acquired some technical status, the condition itself was simply a condition that one would expect as a result of severe trauma ‑ ‑ ‑

KIRBY J:   I might be missing something, Mr Gageler, but the point being made is that he may not have PTSD, or whatever it is, at all – he may have some other condition – and that until the question of the diagnosis and clarification of the condition was concerned it was not good enough simply to accept that he had PTSD.  There had to be some clarification of it in order that his evidence be evidence.

MR GAGELER:   Your Honour, can I respond with a hypothetical scenario, where I am giving evidence and I tell your Honour I have a very bad headache and that is affecting my ability to give evidence, or I have a severe back condition and that is why I am fidgeting in the witness box.  Your Honour is perfectly entitled to accept that and give it whatever weight your Honour considers is appropriate in assessing my evidence, without the need for a medical certificate to verify the existence of the condition.  It is, at the end of the day, a question of reasonable decision‑makers acting with a great degree of commonsense.

Your Honours, we have given a reference in our supplementary list of authorities to a decision of the Full Federal Court in an anti‑dumping matter.  It is Enichem Anic Srl v Anti‑Dumping Authority 39 FCR 458. I draw your Honours’ attention to a passage that occurs at page 469. Your Honour Justice Gummow was a member of the court. This passage is in the judgment of Justice Hill at page 469. It has been frequently quoted since in the Federal Court. Arguments to the effect that a decision‑maker being alerted to a fact, or the possibility of a fact, needed to pursue inquiries so as to make a valid decision.

They have been put on a number of bases over the years.  Sometimes it is put in terms of unreasonableness, sometimes it has been put in terms of breach of the rules of natural justice, and in this particular case it was said to be a failure to take account of the relevant matter to which the decision‑maker had been alerted.  Justice Hill said at page 469, about point 3:

Decision‑making is a function of the real world.  A decision‑maker is not bound to investigate each avenue that may be suggested to him by a party interested.  Ultimately, a decision‑maker must do the best on the material available after giving interested parties the right to be heard on the question.

There is a reference a little further down to Prasad, to which I referred this morning, and drew your Honours’ attention to the passage in Prasad that immediately precedes the one that is quoted, to 168 to 169, where the root of the principle there expressed is said to lie in Pestell’s Case in this Court – as I said, an opinion case very much in the Hetton Bellbird Collieries line of case.  After the quote from Prasad, your Honours will see a reference to J Wattie Canneries, which I think we have also given your Honours, but I do not wish to take the Court to it.  J Wattie Canneries was where the same argument had been put, essentially in terms of the breach of the rules of natural justice, and it had received exactly the same response, in reliance particularly on Prasad.  Your Honour Justice Gummow was a member of the Court in J Wattie Canneries as well.

KIRBY J:   As I understand it, the respondent confesses and avoids.  He says, “I accept that principle”, but where it goes to the quality and appreciation of the intellect of the witness and the ability to give truthful evidence and the knowledge of the obligation to give truthful evidence, that is different to the claim of a headache or a pain in the back or even a pain in the foot – which is what I have at the moment.  It is a question of whether it is evidence at all.  That is what I understand is the point.

MR GAGELER:   That brings us to paragraph 17, ground 3 ‑ ‑ ‑

KIRBY J:   We start a new page.

MR GAGELER:   Heading, “competence”.  What his Honour said, page 340, paragraph 17, is that:

The third problem is directly related to the second.  Having found that the appellant was suffering from PTSD there was no evidence before the Tribunal which would enable the Tribunal to determine whether the appellant could properly take part in the proceedings.  Having found that the appellant was suffering from a disease which affected his capacity to give evidence it was then incumbent upon the Tribunal to satisfy itself that the appellant could take part in the proceedings.  The failure to do so was also an error of law.

I think that is really the point with which your Honour was concerned.  Can I say this, again, beginning at the level of fact, that the suggestion that the suffering from PTSD was something that affected the ability of the respondent to be able to take part in the proceedings at all was not something that was raised in the letter from the adviser suggesting that he may have been suffering from PTSD.  Nor was it suggested by the adviser that there was any difficulty in obtaining instructions, either to write the letter or to prepare the affidavit.

KIRBY J:   That is at one level, but the next question is at the decision‑maker’s level, and I think a fair interpretation of the letter was it was putting the Tribunal on notice that there was a problem here.

MR GAGELER:   Your Honour, what it was doing was responding to the letter from the Tribunal which had said, “There is a problem with this man’s evidence.  He has told me different stories and I have a letter here now from a psychologist that may allow me to say it is not because of his psychological condition that he is telling different stories”.  It was in response to that, critically, that the letter suggesting that he may be suffering from PTSD came.

Your Honour, in addition to that the Tribunal, as your Honours have seen, went out of its way in a prehearing conference and in the hearing itself, quite apart from the correspondence, to satisfy itself that he was a person who was able to go on with the hearing, and he went on with the hearing in the present of Mr Cox; Mr Cox who had made previous representations to the department about his condition and Mr Cox is a barrister.  But, your Honours, at the level of principle, in our submission, there is no competence requirement to be either an applicant or a witness before the Tribunal and to imply one would be, in our submission, inconsistent with the statutory scheme.

Can I draw your Honours’ attention to relevant parts of the statutory scheme.  They begin with section 412(2) of the Migration Act, which says:

An application for review may only be made by a non‑citizen who is the subject of the primary decision.

That non‑citizen may well be a child, it may well be a person who is mentally ill.  One takes the applicant for refugee status in whatever condition they happen to be.  Section 414(1) then says that where a valid application is received “the Tribunal must review the decision”.  Section 425(1) then says that:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments –

again, in whatever state the applicant might happen to be.  Section 420(2)(a) says the Tribunal, in reviewing a decision “is not bound by . . . rules of evidence”.  Now, our learned friends, in their written submissions, place particular reliance on the provision in the Act for the making of an oath, that is section 427(1)(a), and suggest that that brings in some element of competence drawn from the common law.  Not so, we say.  What section 427(1)(a) refers to is taking “evidence on oath or affirmation” which is something that can occur at the discretion of the Tribunal.  What is meant by “oath or affirmation” is then spelt out in section 427(5).  It is simply:

The oath or affirmation . . . that the evidence that the person will give will be true.

And the consequences of giving untrue evidence or of not taking an oath or affirmation are spelt out in section 433.

GLEESON CJ:   I am not suggesting that the facts of the case come anywhere near this, but just as a question of the operation of the statute, how does the scheme of the statute operate in the case, for example, of a person who has applied for a protection visa, had the application rejected by a delegate and who is suffering from delusions as a result, for example, of schizophrenia?  What happens then?

MR GAGELER:   Your Honour, I am afraid that the Tribunal would have to do the best it could in the circumstances, allowing the applicant to present his or her version of events as best he or she could and then weighing up the fact of schizophrenia in determining the outcome.  It is very difficult to know.  But it is no excuse for not hearing the application.

KIRBY J:   But surely it is a warning bell that it has to be a hearing of a particular kind.

MR GAGELER:   Yes.

KIRBY J:   The Tribunal is not engaged in a charade here.  It is engaged in a very serious determination.  It affects liberty and life of an individual.

MR GAGELER:   Absolutely.

GLEESON CJ:   What is the alternative to having a hearing?

MR GAGELER:   Indefinite detention.

GLEESON CJ:   Indefinite detention.

MR GAGELER:   Yes.

KIRBY J:   Or a hearing with the assistance of medical experts who can give assistance in the evaluation of the evidence such as it is of the applicant, or evidence from their family.  I mean, we have sat in many of these cases now and they have all sorts of evidence, and properly so, letters from family members and things that would not be accepted in a court of law but ‑ ‑ ‑

MR GAGELER:   Yes.  Your Honour, a question becomes, how far do you go?

HAYNE J:   Well, we speak of a hearing.  Other than 425, is there any other provision that with 425 could be said to require a hearing?

MR GAGELER:   Yes, there is the provision that requires the Tribunal to look at the papers and in the absence of being prepared to grant review on the papers to conduct a hearing.  Your Honour, I will have to turn it up.

HAYNE J:   It is to conduct a review.

MR GAGELER:   Yes.

HAYNE J:   It must invite the applicant to appear to give evidence and present arguments.  Is there any other provision which amplifies its obligations in a way that would be encompassed by the notion of giving a hearing?

MR GAGELER:   Can I give your Honour a more comprehensive answer to that perhaps in reply?  I could pick out sections, but I have a limited time.

GLEESON CJ:   Justice Selway used the expression “could properly take part in the proceedings”.  These were the present respondent’s proceedings, were they not?

MR GAGELER:   Yes, so the obligation of the Tribunal was to undertake the review and to hear evidence from the applicant.  There is no question but that had to occur.  There may be a question of timing or manner of it occurring, but it had to occur.

KIRBY J:   That is what I take to be the respondent’s argument.  What is a proceeding?  What is the hearing by the Tribunal or the making of the decision, the process?  Do you accept that section 420(2)(a) can live with the Evidence Act?  Does the Evidence Act apply to the Tribunal?

MR GAGELER:   Section 420(2)(a) means that the Evidence Act does not apply to the Tribunal.  The Evidence Act only applies to a tribunal where the rules of evidence are brought into play in the tribunal.

KIRBY J:   It says the “rules of evidence”.  Query whether they are the rules of evidence at common law, as distinct from the statutory provisions relating to the receipt of evidence in the Federal Court.

MR GAGELER:   Your Honour, it a generic expression that obviously excludes the rules of evidence.  Whether or not the Evidence Act applies turns on what the Evidence Act says.  The Evidence Act (Cth) says it applies to proceedings in a court.  There is a definition of “court”.

KIRBY J:   If that is so, it does not apply to the Tribunal at all.

MR GAGELER:   It only applies to tribunals where the tribunals are bound to apply the rules of evidence.  So the insertion of section 420(2)(a) into this Act means that this Tribunal is not bound either by the common law, in our submission, or certainly by the Evidence Act, by virtue of that definition.

KIRBY J:   What is that provision, the one that says it applies in a court?

MR GAGELER:   Section 4, read with what is called “the dictionary”.

GUMMOW J:   It does not apply in State courts exercising federal jurisdiction, for example.

MR GAGELER:   Generally not, no.  Your Honour, I will find the section number of what is called “the dictionary” in due course.  May I turn to the privative clause.  It is a point which I may not need reach in this case, but it is one that I cannot ignore.  In a nutshell, the effect of the privative clause, in our submission, is that where one would have read into section 65 a requirement of a reasonably formed state of satisfaction, one now reads into section 55 only a requirement of a bona fide state of satisfaction.  To make that good, can I start with S157 of 2002 (2003) 211 CLR 476.

GUMMOW J:   I do not understand what you are saying, actually.  What is the submission?  You are changing the nature of jurisdictional error in some way or other, are you?

MR GAGELER:   Yes.

GUMMOW J:   Why?

MR GAGELER:   As part of what your Honours have referred to as “the reconciliation process”.

GUMMOW J:   I see, whatever.

KIRBY J:   Reconciliation between whom?

MR GAGELER:   Reconciliation between section 65, its general words, and what would ordinarily be implied into those general words as an exercise in construction in accordance with Hetton Bellbird and that line of cases, on the one hand, and section 474, on the other.  Your Honours referred to this reconciliation process in Plaintiff S157 in a number of places.  Can I pick up first in the majority judgment at ‑ ‑ ‑

GUMMOW J:   You mean the joint judgment?

MR GAGELER:   Sorry, your Honour, in the joint judgment at paragraph 60, page 501:

It follows from Hickman, and it is made clear by subsequent cases, that the so‑called “Hickman principle” is simply a rule of construction allowing for the reconciliation of apparently conflicting statutory provisions.  Once this is accepted, as it must be, it follows that there can be no general rule as to the meaning or effect of privative clauses.  Rather, the meaning of a privative clause must be ascertained from its terms; and if that meaning appears to conflict with the provision pursuant to which some action has been taken or some decision made, its effect will depend entirely on the outcome of its reconciliation with that other provision.

Your Honours then have the heading “Privative clauses and the process of reconciling legislative provisions”.  I will not go to that.  At paragraph 69, page 504, it is said:

Although s 474 does not purport to effect a repeal of statutory limitations or restraints, it should be noted that it may be that, by reference to the words of s 474, some procedural or other requirements laid down by the Act are to be construed as not essential to the validity of a decision.  However, that is a matter that can only be determined by reference to the requirement in issue in a particular case.

And your Honours at page 506, paragraph 77 said:

To say that a decision that involves jurisdictional error is not “a decision . . . made under [the] Act” is not to deny that it may be necessary to engage in the reconciliation process earlier discussed to ascertain whether the failure to observe some procedural or other requirement of the Act constitutes an error which has resulted in a failure to exercise jurisdiction or in the decision‑maker exceeding its jurisdiction.

Your Honour the Chief Justice said ‑ ‑ ‑

GUMMOW J:   That is a reference back to 69, is it not?

MR GAGELER:   Yes, that is the way we interpret it, your Honour.  Your Honour the Chief Justice said similar things at pages 490 to 493, paragraphs 26 to 33, concluding in paragraph 33 as follows:

Fifthly, a principle of relevance to Hickman is that what is required is a consideration of the whole Act, and an attempt to achieve a reconciliation between the privative provision and the rest of the legislation.  In the case of the Act presently under consideration, that is a formidable task.  There may not be a single answer to the question.  But the task is not to be performed –

et cetera.  Clearly enough, in Plaintiff S157, it was held that the process of reconciliation did not result in section 474 by implication ousting the rules of natural justice, that is, ousting the rules of procedural fairness that would otherwise be implied into the Act.

Your Honour Justice Kirby, with Justice Gaudron then in S134/2002 211 CLR 441 at 466 and following, found it necessary to engage in a process of reconciliation to determine whether in the light of section 474 an error of law in the application of a prescribed criterion for the purposes of section 65 was still a jurisdictional error. I will not go to those passages, but your Honours there determined that the reconciliation process did not result in the jurisdiction conferred by section 65 being read up to allow for an error of law. It is not necessary for me for present purposes to challenge the view to which your Honour and Justice Gaudron came in that case.

The other members of the Court did not find it necessary to address the point and I understand that there are two special leave applications before your Honours tomorrow in which the point is sought to be argued in relation to decisions that have been made by the Full Court of the Federal Court.  The proposition which we need to advance for present purposes is a more narrow one.  It is simply that in the reconciliation of section 65 and section 474, what used to be reasonable ‑ ‑ ‑

GUMMOW J:   A reconciliation is ‑ ‑ ‑

MR GAGELER:   Your Honour, it is not my language.

GUMMOW J:   The reconciliation achieved in this case is jurisdictional error reviewable.  That is what the case decides.

MR GAGELER:   Your Honour, I would have accepted that.

GUMMOW J:   Because I am just looking at paragraph 83.

MR GAGELER:   Your Honour, I would have accepted that if it were not for the paragraphs to which I have referred, particularly paragraph 69 and, more particularly, paragraph 77, because paragraph 77 follows from paragraph 76 where it is made very clear that a decision under the Act, which is cloaked with immunity by the privative clause, is a decision which is not infected with jurisdictional error.  I accept that, but then your Honours have added paragraph 77.

What your Honours are saying, in our submission, is that notwithstanding the narrow construction given to the words under the Act, the presence of section 477 in the Act is to be taken into account in determining the jurisdiction that is conferred on decision‑makers by other provisions and certainly that appears to be the way that your Honour Justice Kirby and Justice Gaudron interpreted those passages in Plaintiff S134.  So the point to which I was coming, your Honours, is that ‑ ‑ ‑

GUMMOW J:   What is the paragraph in S134?

MR GAGELER:   S134, beginning at paragraph 71 and continuing through to paragraph 84.  It is a very long passage.  The point to which I was coming is that when that process of reconciliation is engaged in, in our submission, whether or not it expands the jurisdiction of a decision‑maker to err in law, it necessarily expands the jurisdiction of the decision‑maker to reach a state of satisfaction that is bona fide rather than reasonable.

Your Honours, in support of that, may we take the Court to the one case in the history of the Court where a privative clause has been found to affect the result outside the area of taxation.  That case is Coal Miners’ Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd 104 CLR 437.

GUMMOW J:   Where does this notion of bona fide – it comes from here, does it?

MR GAGELER:   Bona fide, your Honour will recall, was the centre point of the Hickman formulation.

GUMMOW J:   No.  Bona fide may have been in Hickman to deal with the case of injunction.  That is what we said, did we not?

MR GAGELER:   Your Honour, in my formulation it comes from here, but in the formulation in this case it was drawn from Hickman, but I will show you.  Your Honours will see in the headnote the relevant provisions, section 108 of the Industrial ‑ ‑ ‑

GUMMOW J:   I think you may have been sent here to practice some sophistry, Mr Gageler.  Anyhow, away you go.

MR GAGELER:   I work with what I have, your Honour.

HAYNE J:   …..a very much larger agenda than this case.

MR GAGELER:   I may not need to get anywhere near this for this case, but it is just that I cannot ignore it.

GUMMOW J:   Yes.

GLEESON CJ:   Now that you are here, you might as well.

MR GAGELER:   In the remaining five minutes of the allocated time, here I go.

GUMMOW J:   We are all fixed on Coal Miners’.

MR GAGELER:   Section 108, your Honours, said:

“Proceedings in the Court . . . shall not be impeached . . . nor shall the same be removable to any Court by certiorari or otherwise –

a Hickman‑type clause.  Then section 137 provided:

Where it appears reasonably likely to the Court that an act, omission or circumstance will occur, or has occurred, or having occurred will be repeated or continued; and that the result of the act, omission, circumstance, repetition, or continuance, is or will be (a) to cause, contribute to, or hasten the occurrence of a lock‑out or strike . . . the Court may make such order as it considers necessary to terminate or avoid that result.”

What happened here was that the Arbitration Court, which is referred to in those provisions, made an ex parte order purportedly under section 137.  Certiorari was granted by the Supreme Court of Western Australia and that order for certiorari was discharged on appeal to the High Court.  The minimal evidence that was before the Arbitration Court in Western Australia in making the ex parte order is referred to at the top of page 445 and it appears to have been based solely on the terms of a letter that are set out there at page 445 about point 3.  The order then made by the court is referred to at 445, point 7.

The argument that the Arbitration Court exceeded its jurisdiction is set out at page 446 in a judgment of the Chief Justice.  Your Honours will see in that full paragraph, commencing about five lines down from the top of the page, the second sentence:

It is contended that at the root of the order is a misapprehension of the definition of “lock‑out” and of the manner in which it applies to s. 137(1).

I will omit the next couple of sentences.  About point 6 it is said:

It is contended for the respondent that the Arbitration Court either misconceived this provision or misconstrued the fact; for the relevant fact, according to the argument, simply was that unless production was raised the employers harboured an intention to close the pits, or at all events stated an opinion that they would be unable to avoid doing so.

This is the response:

The difficulty about such a contention is that it ignores the criterion of jurisdiction which results from a combination of s 108 with the terms of s 137(1).  Section 137(1) by its introductory words “where it appears reasonably likely to the Court” commits to the Court the judgment of the very facts which the foregoing contention of the respondent treats as jurisdictional.  Section 108 then operates in the manner that has been explained at the commencement of this judgment –

I will come back to that –

The result is to make it impossible to base prohibition or certiorari on any error of the Arbitration Court made in a bona fide attempt to apply these conceptions in the course of exercising the power –

Now, the earlier explanation ‑ ‑ ‑

GUMMOW J:   Why?

MR GAGELER:   Why?

GUMMOW J:   I know Sir Owen Dixon says that.  Why?

MR GAGELER:   I will come to why.  Why is set out as he indicated earlier in the judgment at 442 to 443.  I will not read it all to your Honours, but there is a reference to R v Murray; Ex parte Proctor that your Honours are familiar with, and then a reference to Hickman, page 443, and it stated:

It follows from the foregoing that the appeal against the order of the Supreme Court quashing that of the Arbitration Court must depend upon the question whether the order of the latter Court was or was not altogether outside the scope of the authority of the Arbitration Court or at all events ought or ought not to be considered an order made as a bona fide attempt to exercise a power  ‑ ‑ ‑

GUMMOW J:   Sorry, where are you reading from, Mr Gageler?

MR GAGELER:   Page 443, about point 5.  But it follows, your Honour, from the principles set out in Ex parte Proctor, set out in Hickman and the other cases to which his Honour referred.  Now, they encapsulate the process of reconciliation, to which your Honour has referred in this ‑ ‑ ‑

GUMMOW J:   Yes, I was referring in paragraph 82 to Plaintiff S157.

MR GAGELER:   I am sorry.

GUMMOW J:   That is the best we could do with bona fide, otherwise it is just a piece of verbal mysticism.

MR GAGELER:   I do not think your Honour has referred to this case.  This was a certiorari case.

GLEESON CJ:   Did Justice Selway make an order quashing the Tribunal’s decision?

MR GAGELER:   Yes, he did.  His Honour’s order is at page 342A.  His Honour made no provision in that order for his own ‑ ‑ ‑

GUMMOW J:   Where did this notion of bona fide come from, apart from Sir Owen’s brain, by reference to any other criterion?

MR GAGELER:   Sir Owen’s brain is not a bad starting point, your Honour.

GUMMOW J:   Not always.

GLEESON CJ:   It came from an English case in the middle of the 19^th century, did it not?

MR GAGELER:   Yes.  I am sorry, your Honour has referred to that in your Honour’s judgment in S157.  Yes, it was brought squarely ‑ ‑ ‑

GUMMOW J:   Not relied on by him though.

MR GAGELER:   I do not recall that, your Honour.  But the point is that it was explained in Hickman, expounded in Ex parte Proctor and accepted as the relevant formulation in a large number of cases.  Your Honours in S157 acknowledged the continuing relevance of those cases and the necessity for the process of construction ‑ ‑ ‑

GUMMOW J:   We reinterpreted them, in a sense.  That is what ‑ ‑ ‑

MR GAGELER:   Yes, and all I am seeking to do is ‑ ‑ ‑

GUMMOW J:   You want to reopen the reinterpretation and go back to the golden age.

MR GAGELER:   I am not quite that ambitious.  I am seeking to work with the interpretation that your Honours have already given.  Your Honours might also note the concurring judgment of Justice Menzies, particularly at pages 452 to 453.  My time is up and I wish to say no more about it.

GLEESON CJ:   Thank you.  Yes, Mr Walsh.

MR WALSH:   If the Court pleases.  I am going to briefly refer to the material before the Tribunal which is necessary for a proper understanding of the importance of the inconsistencies relied upon by the Tribunal in reaching its conclusions adverse to the respondent against the background of its finding that the respondent was suffering PTSD.  Before I do that, can I say that it is the respondent’s position that insofar as his Honour Justice Selway might be interpreted to have said that the Tribunal was in error in finding that the respondent suffered a psychiatric or some disorder of some kind based on the presentation of the respondent partly on background information, that that might be wrong.  But his Honour was entirely correct to conclude that it was not proven that the respondent was suffering PTSD and there was a distinction to be drawn between those two positions.

We say with the greatest respect that his Honour was probably not asserting at all that there was a disentitlement to reach a conclusion that the respondent was suffering some sort of mental disability.  He was merely saying that you cannot categorise it the way you did.  Secondly, we say that his Honour Justice Selway was entirely correct in concluding that the Tribunal erred in law in a jurisdictional way in then proceeding to make a decision on credit without evidence from an appropriate expert as to what effect that condition had on his ability to give a consistent history or to reliably answer questions at the hearing or pre or post that hearing.

KIRBY J:   But we live in a practical world and these cases are very numerous.  What is wrong with the Tribunal saying, “It is suggested that this man was affected by a psychological problem and I’m prepared to accept that that is so”?  Does that not cut the corner of having to stop the proceedings, get psychiatric investigation, have an examination and perhaps get conflicting opinions, take up a lot of time?  What is wrong with accepting it as it is put, at the highest for the applicant?

MR WALSH:   Because if the corner is to be cut in that way, then there is manifest procedural unfairness to the respondent.

HAYNE J:   Why?  The Tribunal had sought advice, it had obtained advice ‑ the advice being adverse to the interests of the respondent – from the Woomera psychologist.  It then puts that advice before the respondent’s advisers for comment and they say, “This may be so, or that may be so, or the other may be so.  You should look further”.  Where is the want of procedural fairness?

MR WALSH:   The want of procedural fairness arises from the fact that the Tribunal embarked upon the course it did in the first place, and then left itself in a position where there was a hiatus in the evidence which would allow it to make a rational decision and in circumstances where, in effect, the respondent was denied a hearing, in a sense, if it is true that he suffered from a mental disorder.

HAYNE J:   The material the Tribunal obtained for itself suggested, did it not, no mental disorder?

MR WALSH:   Your Honour, it is not entirely clear precisely what that material concluded, and it may be appropriate to turn to that.  That is a report of the psychologist, Mr Gracie, and it appears at page 56A of the appeal book.  It is important to understand what this report does not say.  Your Honours will see that in relation to his presentation there was reference to, at line 20:

physically violent acts either to himself or property . . . no sign of remorse or reflection on his behaviour.

Then reference is made at line 25 to his “powers of recall” and the psychologist says this:

[The respondent] has not been interested in discussing his past with me however I don’t believe that he cannot recall his past.

The psychologist does not explain that statement.  Then the psychologist says a little later on at the foot, three lines from the bottom:

[The respondent] claims to suffer from headaches, poor concentration and insomnia through anxiety, however, it seems that many of his actions are still clearly thought through and premeditated –

Based on what?

so I believe he has the capacity to think through events if required.

But the psychologist at no time says, “I think he has a psychiatric disorder.  I believe that he has a recognisable psychiatric disorder in accordance with the criteria of the relevant booklet”, the DSM‑IV or whatever it is, and nowhere does the psychologist say that he can be accepted in his history at all times rather than that he can give some history.

KIRBY J:   He does say, in summary, that he “probably has the ability to be more articulate than he presents”.

MR WALSH:   Yes, I need to deal with that:

probably has the ability to be more articulate than he presents but whether he co‑operates in that process will depend on his frame of mind ‑ ‑ ‑

CALLINAN J:   Mr Walsh, I must say I find that entirely unpersuasive.  When he was first interviewed on his arrival in Australia – this is at appeal book page 7 – when he was asked why he came to Australia, he said:

It was mainly to secure my future, find a job in my own profession or in any other occupation.  I have come to work, to live, to get married.  After I get married hopefully my children will lead a happy life.

There was not the slightest suggestion of any form of persecution at all.  Why would not a Tribunal, if it were obliged to resolve inconsistency, accept that as the most likely version, the one that he gives as soon as he is off the ship, entirely plausible and does not contain the slightest reference to any fear of persecution or persecution?

KIRBY J:   And beautifully written in the English language.

MR WALSH:   Three responses.  One, he was fearful when he came to Australia and, as Dr Turner points out – and it is referred to in the information before the Tribunal which was supplied by the agent – that is quite common for them to have been too fearful to give the real reasons why they were there, because information can get back to the home country or they might sent back.  In addition to that, the respondent explained that on a number of occasions – page 26 of the appeal book was the first occasion when he explained precisely that being the reason for that history.

CALLINAN J:   Never had any problems at all with the authorities, that is what he said.

MR WALSH:   The Tribunal accepted a number of things in relation ‑ ‑ ‑

CALLINAN J:   I know, very much in his favour.

MR WALSH:   Precisely, because he probably deserved it, with respect, and having deserved at that point to those favourable findings that, yes, he probably did come from a particular family or clan that had been involved in assisting the Iraqis as opposed to the Iranian Government, and worked through the process of acceptance of that, it then came down to the critical issue at the end of the day whether his inconsistencies about what he was doing in that six months before he then left should mean that he should be treated as having told lies to the Tribunal against the background of much acceptance on the evidence that he had given of his plight.

Now, he had explained to the authorities, and it became consistent that he had that fear.  I will not take you through what is said at page 26.  So that is the first answer to that proposition, that there is a rational explanation as to why that first history is incorrect and that was treated by the Tribunal and dealt with by the Tribunal.

To illustrate the point that we make in relation to that, it is interesting to observe the conclusion that the magistrate who dealt with this matter – sorry, the issues that the magistrate was dealing with as being the critical issues.  At page 317 of the appeal book No 2, the learned magistrate said at paragraph 9:

The other ground of review advanced by Mr Cox under the general law is that the RRT fell into jurisdictional error by failing to accord the applicant procedural fairness in the conduct of proceedings before the RRT.

This is important for two reasons, one is that it is going to give a synopsis of what the real issues were and, secondly, it shows that the issue of procedural fairness was well and truly part of the matrix behind the decision that ultimately had to be made.  He continued:

Mr Cox submits that as the RRT had accepted that the applicant suffered from Post Traumatic Stress Disorder . . . the RRT should not have proceeded to take evidence from him and make adverse findings against him.  Mr Cox submits that the RRT proceedings should not have continued until the applicant had undergone further medical assessment of his fitness to attend and answer questions.

Then, for the Commonwealth, it was put at page 318, at paragraph 12:

Mr Stretton, for the respondent Minister, submits that the RRT dealt thoroughly and carefully with the applicant’s claims.  He submits that the RRT made conclusions on inconsistency in evidence presented by the applicant which were reasonably open –

So it was the inconsistencies which were very important.  Then, at paragraph 13:

Mr Stretton submits that the RRT did all that reasonably could be expected of it in assessing the medical condition of the applicant and that there was no need for any further medical examination of him, once the RRT had accepted that the applicant suffers from PTSD and took that into account.  Mr Stretton submits that the applicant was not incompetent, by reason of PTSD –

but that very submission illustrated the problem in this case.  There it is, it has been put that the applicant was not incompetent by reason of PTSD, but there was no evidence of an appropriate expert to say whether he was or was not.  That was the issue that his Honour Justice Selway picked up.

Now, it is true that his Honour Justice Selway might have organised his reasons for decision as to what were the jurisdictional errors in a different way.  For example, it may be that upon reflection his Honour might have said, “I need to explain in the first error of law what I mean by that.  I don’t mean that the Tribunal erred in reaching a conclusion that he suffered some form of mental disorder.  I say that the Tribunal erred in saying it was PTSD”.  But when one then traces through what his Honour then did in grounds 2 and 3, his Honour is clearly talking about procedural unfairness.

It is true that my learned friends seek to compartmentalise and characterise the errors in the way which they might be because of the way his Honour’s reasons have proceeded, namely in terms of no evidence or alternatively illegality for insufficient evidence or alternatively on competence.  But, at the end of the day, we say that what this case was truly about was the issue of procedural error drawn from the fundamental fact that there was no evidence which would assist the Tribunal to know what was the true quality and effect of the evidence that was being given by the applicant.

So we say, with respect, that having embarked as required under the Act on its inquiry, it was bound by the common law rules of procedural fairness in conducting that inquiry, that having found that the respondent was suffering from post traumatic stress disorder, there being no evidence from any appropriate expert as to the effect that that had on his evidence and his capacity, the fairness dictated that either the Tribunal should complete the inquiry that it had set up as to his condition or allow the respondent’s application that an expert report be obtained.

KIRBY J:   Was that specifically sought in terms to have an expert obtained?

MR WALSH:   Yes.

KIRBY J:   Show me where that was actually requested.

MR WALSH:   Page 65 I think it is, your Honour.

KIRBY J:   I know the Tribunal said, “After a lot of thought and careful consideration we have decided not to do something”, but I would like to see where it was actually asked.

MR WALSH:   What was said at page 64 - I am sorry, line 15 – was this:

There are many reports about the arbitrary and repressive actions undertaken by the various Iranian Security apparatus . . . Our client’s claims have been consistent since he gained confidence in the confidential nature of Australia’s refugee process, but his credibility has been thwarted by confused representation of some of his claims, bad interpreting and his suffering of what we are concerned may be PTSD.

They did not say it was, they said it may be some problem there.  Then what they said appears at page 69 on the same topic at about point 10:

We submit that it is evident that [the respondent] is suffering from some form of psychological difficulty, which is complicating his giving of evidence with regard to his claims.  One of the most worrying aspects in our client’s behaviour came after answering questions about return to Iran at which time he displayed panic –

Then at page – I am sorry, I have jumped forward - page 66 – I should go back a little – at about point 15:

We are not attempting to impugn the Woomera camp psychologist’s ability, but contend that a further, more independent and expert assessment be undertaken to determine [the respondent’s] state of mind and whether there can be justified links to his past claims of trauma and persecution.  In other words, an expert assessment ‑ ‑ ‑

GLEESON CJ:   May I just pause at that expression “and whether there can be justified links”.

MR WALSH:   I am sorry.

GLEESON CJ:   It cannot have been the case, can it, that somebody was suggesting that a psychologist or a psychiatrist was going to give opinion evidence that this man had been persecuted?

MR WALSH:   No, of course not, your Honour.

GLEESON CJ:   I just wondered then why the Tribunal said what was said on page 299 in the last sentence of the critical paragraph.  I read that as a response to the part of the sentence you just read out.  Do you see on page 299, line 25?

MR WALSH:   Yes, I see that, your Honour:

As to whether his current condition is a consequence of Convention‑related events in Iran –

It may be so, your Honour.

GLEESON CJ:   Was anybody suggesting that it would have been proper for a psychiatrist or a psychologist to say for example, “This man is suffering from a psychological or psychiatric condition that is itself evidence of the fact that he had been persecuted before he came to Australia”?

MR WALSH:   I do not think anyone was suggesting that that was said, your Honour, but it may be because of what was said here that something else was before the Tribunal that we do not understand.  But what I can say is this, that what the writer was referring to was based upon the next passage that is quoted on page 67 where there is a quote at the top of the page from Stuart Turner’s report where he said:

“Simply being medically qualified does not mean that an individual is an expert.

This is the psychologist versus some other person.

In the same way, holding a first degree in psychology does not mean that the individual is appropriately clinically qualified or competent to carry out detailed psychological assessments.  (This is the basis on which some reports presented to adjudicators have apparently been prepared.  In my view, these are hard to see as expert reports.  The danger is that non‑expert advice may lead to incorrect decisions in which an asylum‑seeker is wrongly refused.

KIRBY J:   Where are you reading now exactly?

MR WALSH:    This is at the top of page 67, your Honour, and it is a quote from Stuart Turner’s report about expert reports.

GLEESON CJ:   So this desire to get a further expert assessment was entirely related to the evaluation of the quality of his evidence?

MR WALSH:    Precisely, your Honour.

GLEESON CJ:   And was not, in any respect, an attempt to lead substantive evidence from which an inference of persecution could be drawn?

MR WALSH:    Not as I understood it.  The reason why I say that, your Honour, is that when one then traces through these quotes from Turner – there are many more than referred to by my friend but that is not a criticism – one can see that that is what is obviously the emphasis.  For example, page 67, the same page, at point 15:

“There are specific aspects of memory impairment associated with trauma but before dealing with these, there is also the non‑specific issue of impairment of concentration.

So the emphasis again was on presentation and ability to recount things.  Then there is ‑ ‑ ‑

HAYNE J:   As an explanation, perhaps, for what appears to be the fact that the claims made by the respondent grew over time.  Did not the Tribunal in the end, at page 300, between lines 5 and 10, say, in effect, “Well, look, because there may be this explanation I will take his claims at their highest, namely, as last described in the oral evidence”.  Is that right?

MR WALSH:    If that was the case, then I would understand the force of the argument against the respondent, if that was merely the issue, but the issue is much deeper.  Here the Tribunal is saying, “Look, because of what we observed, because of what we have seen, because of his presentation and because of things that have been happening, this man, we think, has some recognisable psychiatric disorder”.  It is not merely saying, “Well, look, let us place it at its highest for the sake of the argument”.  It is saying, “No, we think this man is disturbed”.

HAYNE J:   I was basing it on the last sentence commencing at line 7 on page 300.

MR WALSH:  

Thus, rather than rely on the claims made by the respondent on various occasions before that hearing, I propose to treat the oral evidence ‑ ‑ ‑

HAYNE J:   Yes, that sentence, which seems to be the Tribunal saying, “I will put his claims at their highest, which is the latest version of his claims”.

MR WALSH:    Yes, true, but then what they seek to do is to then look at inconsistencies which you can then relate as you go through their reasoning process thereafter, namely, inconsistency at the beginning or later.

HAYNE J:   Yes, and do so against a background revealed at 299, line 34 or thereabouts, or between point 20 and 25, that it is “highly likely” he is suffering from some psychological condition.  “I cannot say why he is.  I will take that into account, but it is for me to say what happened in Iran”.  Now, is that a misreading of what the Tribunal has done?

MR WALSH:   The true error lies in the fact that having accepted that he has a disability, having evidence before it that the disability leads to incoherency or may lead to an inability to give a history, then went on to make critical findings of credit on the basis of inconsistencies when those inconsistencies might be due to his condition.  They did not analyse it that way.  For example, after dealing with the question of the psychologist’s report, the Tribunal then deals with the evidence and it comes to a conclusion, without really analysing what the effect of the condition might be, at page 306 ‑ ‑ ‑

CALLINAN J:   Mr Walsh, it seems to me that you are really posing a test which would favour your client far, far above a person charged with a serious criminal offence, as to which I would draw your attention to what the Chief Justice of this Court said in Eastman v The Queen (2000) 203 CLR 1 at 14 to 15, 24 to 27. His Honour there endorsed a test which had been posed in England as to fitness to be tried:

“It may well be that the jury may come to the conclusion that a defendant is highly abnormal, but a high degree of abnormality does not mean that the man is incapable of following a trial or giving evidence or instructing counsel and so on.” 

Your client could do all of those things in these Tribunal proceedings.

MR WALSH:   But, with respect, your Honour, that is not necessarily so.  That is an assumption that one makes on the basis of evidence of things that have been said.

KIRBY J:   There was detailed evidence in Eastman, whereas your argument here, your complaint, is that the best they had was Mr Robin Gracie, who is a house psychologist and who lives in that community.  What was suggested to the Tribunal was, there was a need for somebody more independent and more expert, and addressed to the specific problem of the applicant, not general issues.

MR WALSH:   Yes.  It goes back to the question of whether this man has had a hearing.  It is ‑ ‑ ‑

HAYNE J:   Well, what provision of the statute do you rely on in aid of that proposition?

MR WALSH:   In aid of that proposition, we rely upon the common law rules of procedural fairness.

HAYNE J:   Well, do you root it in the statute anywhere?

MR WALSH:   We say that you do not need to root it into the statute, because common law rules will apply if there is a hearing to be undertaken.

KIRBY J:   Well, this is a debate whether the common law is, as it were, floating outside and is implied.  I think that was Chief Justice Mason’s view.  Justice Brennan’s view was, you look at the statute and see whether the proceeding of which the statute speaks is a proceeding which imports elements of procedural fairness and so on.

MR WALSH:   Yes, I understand, your Honour.

KIRBY J:   It is therefore implied.  There is a debate in the Court about how you approach this.

MR WALSH:   Yes, thank you, your Honour.

KIRBY J:   I tend to favour Justice Brennan’s view ‑ ‑ ‑

CALLINAN J:   So do I.

KIRBY J:    ‑ ‑ ‑ and I am therefore rather surprised to hear you putting all your eggs in the basket of the common law.

MR WALSH:   We do not need to, of course.

KIRBY J:   Well, root it in the statute then.  What is the statutory provision?

MR WALSH:   The statutory provisions commence at section 420.  Section 420 provides that:

(2)  The Tribunal, in reviewing a decision:

(a)is not bound by technicalities, legal forms or rules of evidence; and

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

KIRBY J:   There you are.

MR WALSH:   It is a bit like arbitrations, for example, under the Commercial Arbitration Act, where you might not have to be bound by the rules of evidence because the parties choose not to do so, which they are entitled to under the Act, and that in an arbitration, nevertheless, the arbitrator must act in accordance with good conscience and in accordance with rules of natural justice.  That has always been ‑ ‑ ‑

KIRBY J:   Was this not said in Plaintiff 157, something to the effect that this is not a decision of the kind that the Parliament has spoken?  Now, it may be that this is not a review of the kind of which Parliament has spoken.  That is what you have to say, is it not?

MR WALSH:   Yes, and we would argue that there has been no decision here in accordance with the comments in Plaintiff v Commonwealth, namely, no decision because there was a jurisdictional error and a jurisdictional error is a procedural error, namely, one which involved a denial of fairness to the respondent in this case, because he has not had his hearing, firstly.  Secondly, there is an irrationality in the process that has been undertaken by the Tribunal because there is a hiatus in the logical process of reasoning in terms of the fact finding that it reached, namely, adverse credit.  The gap is that we do not know, and the Tribunal does not know what is the true quality of his thinking and whether he was capable of giving a rational history and whether the inconsistencies can be explained because of his mental condition.

GLEESON CJ:   What are the consequences under the Act if his mental condition is such that, to use Justice Selway’s words, “he is not competent to take part in these proceedings”?  Where do you go from there?

MR WALSH:   In that event, I suppose, the consequence, as far as we can tell, your Honour, is that a decision will be made having regard to that consequence, but at the present time we do not know.

GLEESON CJ:   A decision made by whom?

MR WALSH:   Made by the Tribunal.  They have to either make a decision, or as my learned friend says, he remains in detention.

GLEESON CJ:   So the Tribunal would just go ahead without him, as it were.

MR WALSH:   Can I put it this way.  There may be some circumstances where somebody just cannot speak, cannot relate, cannot communicate.

GLEESON CJ:   Then what happens in an application to the Refugee Review Tribunal to review an adverse decision of the Delegate?

MR WALSH:   As far as we can tell, there are only two possibilities.  One is that they will have a hearing involving other evidence that will assist and there is no point in asking the person to appear because they cannot contribute.  The alternative is that if not prepared to do that then he would have to be held in detention.  It may be that, for example, if the condition is one which is curable and it might be treatable then that person might be able to attend a hearing at a later time.

KIRBY J:   Sometimes there is medication that can be given to people with profound depression.  It helps.

MR WALSH:   Yes.  These are all practical problems which we accept are going to exist but at the end of the day if we can show that there was an error of process which we say has occurred here, procedural error of some sort, then a jurisdictional error exists and at the end of the day ‑ ‑ ‑

GUMMOW J:   Why do you say that any procedural error gives rise to jurisdictional error?  That is a new notion to me.

MR WALSH:   Not necessarily all.  It is true that there is debate that some may not, but there are some fundamental procedural errors that will go to jurisdiction and we say they exist in this case.

GUMMOW J:   Your case, which is not the way Justice Selway put it, is denial of procedural fairness.

MR WALSH:   Precisely, but what we do know is that ‑ ‑ ‑

GUMMOW J:   No more, no less.

MR WALSH:   But the background before Justice Selway was precisely that.

GUMMOW J:   Have you a notice of contention on?

MR WALSH:   We put a notice of contention in and it was out of time.  That is entirely our fault.  It would appear that Rule 70 provided that the notice of contention should have been served and lodged within the same period of time as the cross‑appeal.  The mistake that was made was that it was thought that it could be done closer to the hearing and the Registry refused to accept the notice of contention.  We deal with that in our outline of argument.

GLEESON CJ:   Mr Walsh, was this not the sequence of events?  The Tribunal gets worried about the mental condition and reliability and behaviour of your client and she says, “What am I supposed to do about this?”  So she gets an assessment from Mr Gracie, the psychologist, as it were, and nobody suggests that it was not open to her to get an assessment from Mr Gracie, and nobody suggested it was not open to her to rely on Mr Gracie.  What she does, having got Mr Gracie’s assessment, is to send it along to your client’s advisers and say, “What have you got to say about that for the purposes of procedural fairness?”  Your client’s advisers write back and they say, “Here’s a theory we advance, PTSD, which if accepted would lead you not to hold against our client some aspects of his behaviour”, and then without saying, “We want to call particular further evidence to advance a particular proposition”, your client’s advisers say, “We want you to get another opinion, a second opinion, in addition to Mr Gracie’s opinion and perhaps in addition to and different from what we’re putting forward as possibilities”.  The Tribunal then says, “Having thought about it all, I’m not going to get a second opinion and I’m not going to hold against your client the inconsistency.  I’m prepared to accept the theory that you advance by way of excuse for that and I’ll go ahead and deal with the matter”.  You say the procedural unfairness lies in failing to get a second opinion?

MR WALSH:   Before we get to that point, your Honour, the Tribunal did hold inconsistencies against the respondent.  That was the reason why, despite their inclination to accept otherwise a lot of what he had said because of those inconsistencies, they found that he was not telling the truth.

GLEESON CJ:   But how far is the Tribunal required of its own motion to go to get to the bottom of the behaviour of a person who is seeking review of a delegate’s decision?

MR WALSH:   Your Honour, can we put it this way.  We can accept that it may be that if the Tribunal had said, “We’re not going to enter into this debate about his psychological presentation.  We’re going to hear what he has to say and we’re going to make a decision as required under the Act”, and nothing more had been done, that nothing could be complained of.  But what happened in this case was that the Tribunal acceded to the request that there should be a report obtained, so it brought itself into the issue.  Having then done that, it then made a conclusion which was not based upon that psychologist’s report but reached a conclusion itself on what it observed and what it knew of the background that he had a mental disorder.  It is at that point that the Tribunal has created the issue for itself.  The Tribunal has put itself in a position where, in order to make findings of fact, it needs the additional information.  Had it not embarked upon that process, it might be a different case altogether.

KIRBY J:   It would have been a different case, but this Court has repeatedly said that the Tribunal acts as an inquisitorial body and therefore it is not a purely adversarial investigation.  These are people who are hardly in an equal position as adversaries.  That is no doubt why Parliament made the body an inquisitorial one.

MR WALSH:   That of course, your Honour, might be a powerful response in general as to why the Tribunal should do precisely that, namely why it should inquire, but the point that we are making about this particular case is that it is different.  It is true it is against the background of an inquisitorial process, but what has happened is that the Tribunal has entered into the process of trying to determine what his state of mind is and then has made a decision.  To then leave it to rest there and say, “We don’t need to go any further”, when the Tribunal must understand that it cannot come to a rational conclusion about his credibility until it has that information is wrong.  It is an error of process.

KIRBY J:   In your written submissions, in answer to Justice Gummow, you pointed out that you got the notice of contention issue, as you call it, on page 13, and you tell us now that you submitted a notice of contention but it was rejected.

MR WALSH:   Yes.

KIRBY J:   Your submissions, nonetheless, are dealing throughout with jurisdictional error on the ground of breach of natural justice.

MR WALSH:   Yes.

KIRBY J:   Do you want to rely on that, and do you need to put the record in some sort of order by our leave?

MR WALSH:   Your Honour, our initial view was that we do not need to because, in truth, Justice Selway was referring to ‑ ‑ ‑

KIRBY J:   I realise that, but if the Court were to take the view that Justice Selway approached the matter in quite a different way and that the way you have put it essentially is procedural fairness, which does raise fairly squarely the issue of jurisdictional error, may you not need to put the record in some sort of shape?

MR WALSH:   Yes, your Honour.  We do have copies of the notice of contention.  My learned friend has it, of course, but we have ‑ ‑ ‑

GLEESON CJ:   You seek leave to file that out of time?

MR WALSH:   We do seek ‑ ‑ ‑

GLEESON CJ:   Is that opposed, Mr Gageler?

MR GAGELER:   I do not object, your Honour.

GLEESON CJ:   You have that leave.

MR WALSH:    Thank you, your Honour.

GLEESON CJ:   Your argument, as I understand it, is that Mr Driver dealt with it on the basis of procedural fairness and it was an appeal to Justice Selway from Mr Driver.

MR WALSH:   Precisely, your Honour, and that is why it was important to understand that process.  We say that there was jurisdictional error and that it goes to the fundamental issue in the case, at the end of the day.  If the Court pleases, I think I will probably not take you through all that evidence that I was going to take you through, but I can say this by way of general observation. 

It ought not to be assumed that the Tribunal was not making a finding of credit.  It was making a finding of credit against the applicant, and it says so on a number of occasions.  It is based upon those inconsistencies.  I think there was a proposition put by my learned friend to suggest that, at the end of the day, it is just really a matter of determining whether there is a Convention reason and they found against the respondent with respect to that, but the process that the Tribunal used, when one looks carefully through the decision, is one involving a decision based on lack of credit.

If the Court pleases, we say that the issue of procedural unfairness arises in the way we have put, which is that the Tribunal was obliged to conduct a hearing, the Tribunal’s decision would affect the rights of the respondent in a very significant way ‑ ‑ ‑

KIRBY J:   We know all that.

MR WALSH:   Yes, I suppose it is somewhat repetitious, your Honour.  As to my learned friend’s submission in relation to “no evidence”, he put the proposition that there was evidence.  In our respectful submission, there was no evidence on the critical issue.  We say that there was no evidence, and therefore it is not necessary to go down the path that my learned friend did in relation to that issue.  But if we are wrong with respect to that, if it is said that there is some evidence, then we say, with respect, that the conclusion reached by the Tribunal was not rational in the circumstances ‑ ‑ ‑

GLEESON CJ:   Not rational?

MR WALSH:    ‑ ‑ ‑ because it has left a critical gap in the evidence in the way in which we put it.  We say that there is, in a sense, a requirement upon a Tribunal to ‑ ‑ ‑

KIRBY J:   Would this not need a further ground of contention because this is not within procedural unfairness and it is not within the matters that were dealt with by Justice Selway, is it?

MR WALSH:    It is, in the sense that it relies upon the issue of no evidence, which his Honour found, and we say the fact is that there was no evidence, but in the sense there was no evidence of a critical kind and there was a rationality ‑ ‑ ‑

KIRBY J:   That is really scraping the bottom of the barrel, Mr Walsh.  You have better arguments, good or bad, than that.  It is up to you, but it seems to me that irrationality is not one of the most popular lines in Australia.

MR WALSH:    If your Honour pleases.  In that case it will not be popular with me either then, your Honour.  We say that a person entrusted with a discretion of this kind must direct himself or herself properly in law, must have regard to all relevant matters, must exclude irrelevant matters and reach a logical decision based upon facts which will allow that to be implemented.

GUMMOW J:   What ground is this, Mr Walsh?  Is this a rerun of irrationality?  It is not procedural fairness, is it?

MR WALSH:    No, it is just lack of logicality, logical process.  It is the process once again.

GUMMOW J:   I see.

MR WALSH:   My learned junior says that I have gone far enough, with respect, your Honours, and our position is that ‑ ‑ ‑

GLEESON CJ:   He might be trying to suggest you have gone too far, but does that cover all the arguments that you want to put?

MR WALSH:    We do not buy into the argument with respect to the privative clause and the question of whether the last proposition put by my

learned friend, namely, that there should have been some reconciliation process.  We say that whether his Honour Justice Selway undertook the reconciliation process or not, at the end of the day, the issue is, was there jurisdictional error of the kind required in this case, and we say that there was, so we do not need to go down that path.

KIRBY J:   Your point is that if you get up on the jurisdictional error for procedural unfairness, that that falls squarely within Plaintiff 157?

MR WALSH:    Precisely.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Walsh.  Yes, Mr Gageler.

MR GAGELER:   In better answer to the question of your Honour Justice Kirby, the relevant provisions of the Evidence Act are section 4(1), read with the extended definition of “Federal Court” in the dictionary which is a schedule to that Act, brought into the Act by section 3(1).  In better answer to your Honour Justice Hayne, it appears to us that the only provision suggesting that the Tribunal conduct a hearing, or anything that could be called a hearing, is section 425(1), which requires the Tribunal to invite the applicant to appear before the Tribunal to give evidence and present arguments.  I took your Honour to that before.

There are other provisions to which your Honours’ attention ought be drawn for completeness.  Section 426(2) allows an applicant to:

give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice. 

Subsection (3) then says:

If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence . . . from a person named –

and your Honours ought also be aware of ‑ ‑ ‑

KIRBY J:   Which section is that, again?

MR GAGELER:   Section 426(2) and (3).  Your Honours ought also be aware of section 427(1) which in dealing with the powers of the Tribunal includes in paragraph (d) a power to:

require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review ‑ ‑ ‑

CALLINAN J:   I am sorry, that is section?

MR GAGELER:   Section 427(1)(d).

GLEESON CJ:   Justice Callinan raised with your opponent a question of what might be called the comparison in terms of fairness between the way the present respondent was dealt with and the way ordinary litigants, including litigants on the wrong end of criminal proceedings, are dealt with.

MR GAGELER:   Yes.

GLEESON CJ:   We, ourselves, sometimes get before us unrepresented litigants who conduct themselves in a manner that makes it impossible to understand clearly what their case might be, but we do not send them off for psychiatric assessment.  How does the way in which the Tribunal in this case dealt with the respondent in terms of fairness compare with the way in which ordinary courts administering civil and criminal justice deal with litigants who by reason of some mental disability or psychiatric problem do not do justice to their case?

MR GAGELER:   Perhaps one could say that it was much more liberal, to the point of indulgent.

KIRBY J:   But the flaw that is suggested, good or bad, is that the Tribunal went that extra step and took a step of diagnosis or acceptance of diagnosis whereas Mr Walsh says maybe if they had said nothing, that is one thing, as we say nothing when people come before us, but that if you step in and say, “Well, I accept that you have a particular mental disability”, then that puts you in a more difficult position.

MR GAGELER:   It puts me in a more difficult position.  Your Honour, I have dealt with what Justice Selway had to say on that topic and I really have nothing more to say about it.  So far as my learned friend has put it, in terms of procedural fairness, can I say this.  That argument was put to the magistrate.  The argument is recorded at page 317 of the appeal book in paragraph 9.  There was an argument put at that stage by Mr Cox.  The way in which the learned magistrate addressed it at page 322, paragraph 23 is, in our submission, more than adequate.

At the end of the day what one has to ask is, “Was this respondent given a fair opportunity to present his case?” and the answer has to be “Yes”.  He was made aware of the issues, he was made aware of the evidence that might be taken into account against him.  He was given an opportunity to say whatever he wanted to say about that evidence and as a result the evidence that might have been taken into account against him - Mr Gracie’s opinion – was effectively put to one side.  There is nothing unfair about that procedure.  If your Honour pleases.

GUMMOW J:   No, do not go away.  Can we look at, in Plaintiff S157, footnote 88, page 501?

MR GAGELER:   I found the footnote, your Honour.  I just cannot find the text.

GUMMOW J:   Footnote 88.  It is the text – there is a reference to Coldham.

MR GAGELER:   Yes.

GUMMOW J:   If one goes to that passage in Coldham, I think you will find a citation of the Coal Miners’ passage that you said we did not seem to have knowledge of.

MR GAGELER:   Your Honour, I did not want to suggest it was per incuriam.

GUMMOW J:   And S134, can you look in the joint judgment of Justices Gaudron and Kirby at paragraph 85, where the reconciliation you speak of between 474 and 65 is specifically dealt with adversely to the way you say it should be done.

MR GAGELER:   No, with the greatest respect.  What their Honours, if your Honour looks at the very last few words, their Honours are there concerned with a misconstruction or overlooking of a statutory criteria.  That was the argument that was presented.  That is the classic error of law.

GUMMOW J:   You want to get the Hetton reasonableness up into bona fide, that is as I understand it, and they say “No”, as I understand it.  You may have more sophistry about it, but to my simple mind that is what is going on.

MR GAGELER:   Your Honour, sorry about the time, but I need to respond to that.  The Hetton reading of satisfaction or opinion is, at the end of the day, an exercise in judicial construction.  Your Honour and Justice McHugh said as much in S20, and section 474, if it is nothing else, is, in our submission, a parliamentary instruction, that in the construction of relevant provisions – relevantly, section 65 – the implication is no longer to be reasonableness.  The implication is to be the traditional ‑ ‑ ‑

CALLINAN J:   I cannot hear you, Mr Gageler.

MR GAGELER:   I am sorry, your Honour.  The implication is to be bona fides.  If your Honours please.

GLEESON CJ:   We will reserve our decision in this matter, and we will adjourn until 9.30 am tomorrow morning in Sydney and 9.30 am tomorrow morning in Melbourne.

AT 3.36 PM THE MATTER WAS ADJOURNED