Min for Immig and Ethnic Affairs v Wu and Ors

[1995] HCATrans 379

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S91 of 1995

B e t w e e n -

MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

Applicant

and

WU SHAN LIANG

First Respondent

HUANG CHENG JIANG

Second Respondent

LIU JUN LIANG

Third Respondent

Application for special leave to appeal

DAWSON J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 DECEMBER 1995, AT 2.00 PM

Copyright in the High Court of Australia

MR J. BASTEN, QC:   If the Court pleases, I appear with MR N.J. WILLIAMS, for the applicant.  (instructed by the Australian Government Solicitor)

MR D.K. CATTERNS, QC:   May it please the Court, I appear with MS K.M. GUILFOYLE, for the respondents.  (instructed by Dwyer Durack)

DAWSON J:   Yes, Mr Catterns.  Perhaps we might hear from you first of all, Mr Catterns.

MR CATTERNS:   May it please the Court.  Your Honours, our central submission is that the question that our friends seek to raise, namely whether there is, in effect, a two-stage process under which primary facts can be found on the balance of probabilities and then a decision made whether there is a real chance, we submit that that question does not arise.  Your Honour, is it convenient to go to the reasons of the delegate in the case of Wu?

DAWSON J:   Yes.

MR CATTERNS:   Now, that begins at page 1 of the application book and if I could just briefly ask your Honours to notice the types of claims made by Mr Wu which are more or less representative of the other two respondents.  Your Honours, in paragraph 3 there is, as it were, anecdotal evidence or statements by Mr Wu relating to this question of fear of punishment on return.  Your Honours will remember that the fear of punishment on return was treated by the delegate as being a convention‑related ground, because it is taken that departure is a political act and therefore it is an imputed political opinion or a political opinion adverse to the regime is imputed to you if you leave illegally.

So Mr Wu in paragraph 3 at line 28 gives various examples of people who were treated harshly as punishment for illegal departure:

some were jailed, some were shot.

A particular foreign affairs telex is put to him.  His answer is at line 38:

sentence for illegal departure is 5 to 10 years.

Another -

person who had departed illegally for Vietnam was jailed for seven years.

Very severe penalties.

These are the submissions made at application at the moment of the very first interview by Mr Wu.  In each of these cases, your Honours, in addition to the particular applicant’s individual grounds advanced at various stages of his or her processing, there were large numbers of written submissions filed on behalf of them as a group, and some of those are noticed at the bottom of page 4, various papers, et cetera; these are the “Dutton paper”, the “Warner paper”, and so on, which gave opinions of how well or badly people would be treated on return to China.  There is another couple of examples, your Honours, on page 5 lines 15 to 25.  There is a particular submission ‑ ‑ ‑

DAWSON J:   Where is all this leading us, Mr Catterns?

MR CATTERNS:   I want to take your Honours in about one more second to the reasoning process of the delegate to try and make good the proposition that our friends mischaracterise that process.  So there were these various general documents that I can skip over on pages 5 and following and then there are opinions by learned counsel and professors are all put generally at pages 8 and 9 and following.             Your Honours, the particular question appears at page 16, line 20:

The applicant has claimed that he will be persecuted if returned to the PRC, for reason of:

his illegal departure -

The delegate accepts:

that it is likely that the applicant will be identified.....It is not clear why the authorities might impose penalties -

Then importantly, your Honours, at line 33:

Nevertheless, giving the applicant the benefit of the doubt, I will treat the claims as Convention-related -

Then the delegate goes on to the process of reasoning, and it is this process of reasoning which the Full Court characterised as being flawed in that it constituted making a finding of the ultimate question, we say, namely whether there was a real chance of persecution on the balance of probabilities.

GAUDRON J:   Well, do you say that that is what happened?

MR CATTERNS:   No, we say that the Full Court was correct in characterising this decision.  We say that what this decision-maker did was, accept facts on the one hand, such as Red Cross reports about what happened to various returnees, Jeremiah and Labrador, accepted those facts, did not weigh them up on the balance of probabilities, just accepted them; fair enough; on the other hand, accepted certain facts put forward by the applicant -again perhaps on the balance of probabilities, but accepted, contrary to the way our friends put it - and then weighed them up against each other in a process which we respectfully submit is rightly characterised as balance of probabilities, and held, preferring this lot to that lot, that on the balance of probabilities - not said - there would not be persecution ‑ ‑ ‑

GAUDRON J:   That is reading a lot into the delegate’s reasons, is it not?

MR CATTERNS:   We submit not, your Honour, but that is the question; we submit that is the question before your Honours today and we submit that it does not arise and really the question is a matter of characterisation what one does and does not read into these reasons, but I do ‑ ‑ ‑

GAUDRON J:   Why not take them at face value?

MR CATTERNS:   Because, your Honour ‑ ‑ ‑

GAUDRON J:   She says she knows the test, states the correct test.

MR CATTERNS:   But, your Honour, I submit that the process of reasoning shows that she did not apply the correct test.  There is no doubt she stated the correct test, but that is the question, your Honour, with respect.  It is really quite simple, your Honour.  Paragraph 4 - your Honours either agree or do not agree with this characterisation, with respect -

I find case studies of returned illegal departees, eg the Jeremiah and Eastwood boat people -

And, your Honours, they were some of the most recent -

are most relevant in determining what might happen to the Labrador boat people.....Comparing the information in DFAT cables and Red Cross advice with the case examples provided by the applicant -

So, in other words, what I submit is, the delegate accepted on the one hand the DFAT and Red Cross advice, on the other, accepted the examples or the evidence of the applicant:

I give more weight to - - -

DAWSON J:   No, she did not; she looked at both and said, “Well, in the circumstances, I accept the latter”.

MR CATTERNS:   Well, your Honour, with respect, even that terminology is a terminology of accepting on the balance of probabilities that the ‑ ‑ ‑

DAWSON J:   No, not on any balance at all; just saying, “Well, doing the best I can with the evidence, that is the fact as I find it”.

MR CATTERNS:   But, your Honour, with respect, it is not a single fact because the case examples provided by the applicant are entirely different matters; they are the ones I took your Honours to, they relate to people who return from Hong Kong, Vietnam and so on.

GAUDRON J:   A decade ago?

MR CATTERNS:   Yes, your Honour, certainly.

GAUDRON J:   Someone who went to Vietnam, which is perhaps a special case.

MR CATTERNS:   Certainly, your Honour, I am in a sense not dissenting to the merits, it being an AD(JR) case, but I submit that what the delegate did was, on one sphere of facts, which are the facts put forward by the applicant, in effect accepted those, and then on the other, the more recent returnees, such as the Jeremiah returnees, accepted those as what happened.  So we submit the proper process of reasoning is to say, “Yes, those stories happened in the past, these happened more recently”, not, “I hold that the more recent outweighs the latter, because that is ‑ ‑ ‑

GAUDRON J:   She did not say that.

McHUGH J:She did not say that at all.  She said she gives more weight to it.

GAUDRON J:   Meaning, I would translate in ordinary parlance, “I think that is more likely than not what will happen”.

McHUGH J:And ultimately she came to the decision that there was no real chance.

MR CATTERNS:   Well, your Honour, with respect, the way your Honour Justice Gaudron put it, is the error, with respect; to say it is more likely than not what will happen to this person ‑ ‑ ‑

GAUDRON J:   Well, it is not likely that they will be treated other than in the way that the most recent returnees have been.

MR CATTERNS:   Well, your Honour, that is, with respect, a different way of putting it and the latter is the correct approach and the former is not.

GAUDRON J:   Well, we do not have to impute to a decision-maker the refinements of language you might expect of a logician or even of a Federal Court judge, do we?

McHUGH J:You have got to find an error of law.  I mean, it is an administrative decision; the idea that then you find errors of law and say it is just really a question of review, it has just got to be driven out of the system.  This seems prima facie to be a good illustration of it.

MR CATTERNS:   Well, your Honours, we respectfully would submit that the Full Court was right in going through this reasoning; it is the sort of reasoning, with respect, that judges engage in when they are determining matters on the balance of probabilities but, your Honours, in the end I accept that it is a matter of what one does and does not get out of this page and a half.  I will not belabour the point on that particular passage.

Your Honours, at the top of the next page the delegate states what happens to returnees from Hong Kong ‑ ‑ ‑

GAUDRON J:   Is that not simply an exposition of why she says “I give more weight”?

MR CATTERNS:   Well, perhaps so, your Honour, except that there is a further conclusion of a similar type in the following paragraph.  I myself read it as continuing on the reasoning process, taking the foregoing into account, as it were.  Paragraph 5 says what happens to returnees from Hong Kong, paragraph 6, the returnee from Japan.

Of all the cases outlined above, the departure and activities since departure.....are very similar -

So, in other words the delegate, I accept, says that these are more analogous - fair enough.  It then says:

Therefore, I give greater weight -

Well, your Honours, I suppose I am just repeating myself about what I said about paragraph 4.

DAWSON J:   What do you say she should do?

MR CATTERNS:   She should say that, “I accept the submissions put by Mr Wu as to the certain facts; I have this evidence here about Jeremiah, I accept that as to more recent facts.  Because of the fact that the Jeremiah material is more recent, et cetera, et cetera, and the other material is, as it were, stale, I don’t think there’s a real possibility, there’s a real chance”.  Your Honours, I accept that it is quite a fine nuance and Justice Wilcox was of the different opinion, but we submit that really it shows what we are here arguing is a question of construction or characterisation of this page and a half of reasons, and when I get to that, your Honours, I will be submitting that that is not a special leave point.

Your Honours, the decision-maker goes on after paragraph 7, line 24:

Therefore, I give greater weight to the evidence regarding the treatment of the returnees -

and finds that that is not persecution - well, fair enough, we accept that, your Honours, that that would be dissenting to the merits.  Then there have been various submissions in relation to the PRC law; that was all the opinions from Professor Tay and others about how people are treated at two levels of law, being as it were the written law and the unwritten law under which people are punished more severely, and the delegate says, in a passage that was picked up by the Full Court:  “I consider it speculative, however, to suggest that the applicant would be treated more harshly”.  Your Honours, we submit that following Chan’s Case, if it was not clear before, it is clear that speculation is precisely what has been engaged in.

McHUGH J:Well, it depends what you mean by “speculative”.

MR CATTERNS:   Yes, your Honour.  I accept that, but I submit that if speculative means no real chance, then that will be ‑ ‑ ‑

GAUDRON J:   Well, there is no basis for thinking there is a chance, is probably what it means.

MR CATTERNS:   Your Honours, that is not how the Full Court read it, but I do accept that ‑ ‑ ‑

GAUDRON J:   But that is the difficulty, is it not?  Why in the context of an administrative decision-making process should decisions be combed over with a fine tooth comb for semantic nuances and when the correct test is stated it really subjects administrative decision-making to a great hazard, does it not?

McHUGH J:The separation of powers doctrine requires that not only courts be kept free of legislative interference, but also that the courts do not unduly interfere with administrative decisions.

MR CATTERNS:   Well, your Honour, I accept that and am familiar with the last 20 years of AD(JR) law, my learned friend more so, but we accept all those, with respect, axiomatic rules of policy, but we are here faced with a simple question, and we do submit that of course, if a decision-maker states the test accurately and then goes on, in effect only pays lip-service to it and ignores it, then that is a case ripe for judicial intervention under the AD(JR) Act and really, we get back to the question of characterisation of this.  If the Full Court is wrong in characterising this judgment, then we would lose the appeal.

But that really brings me to the next point, your Honours.  We cannot see why there is a question of public importance here.  It is really not, with respect, some question of the proper approach to administrative decision‑making, because I have already said any number of times that administrative decisions are not to be too nicely or minutely inquired into, but really we submit that what this boils down to is a question of characterisation.

McHUGH J:Yes, but every now and again it is necessary for this Court to take up a case which normally it would not take up, simply to remind the lower courts about the necessity to adhere to principles:  cases like Abolos.  Cases like that are cases that do not have any special leave point in them inherently, but it is necessary to restate once again.

DAWSON J:   It comes under the head of maintaining the regularity of the courts below.

MR CATTERNS:   Well, your Honour, of course, with respect, I accept that and I also accept that this is the third of three cases in which the Full Court has adopted the same approach with respect to very similar reasoning process which we have given references to, so I mean, I cannot say this is an isolated instance.  But really, in a sense to do that, namely remind the lower courts of their division of roles in dealing with administrative matters, this is a very thin straw to build that house upon, because really one can either agree or disagree with the characterisation of the few short paragraphs that we have drawn attention to, and that is that.  I would submit this is not an appropriate vehicle for the Court then to build an essay of whatever length on the proper function of judicial review.

McHUGH J:Well, courts always seek to do justice as they see it but, from time to time, they tend to drift; they concentrate more on doing what they see as justice rather than confining themselves to their own boundaries and this may or may not be a case, but arguably it is a case for special leave so that we can have a good look at it.

MR CATTERNS:   Well, your Honour, again I do not, with respect, disagree with what your Honour has just said, but our submission is that really what the court has done is characterise this reasoning.  There is no statement in the Full Court of some principle that is contrary to the proper trend of administrative law, we submit; the court got down to the detail of this and differed from Justice Wilcox on it.  I do accept that what has been put to me by the Bench of how the delegate thought about it is a way that is open, but we submit that the course taken by the Full Court is preferable and really that short debate, which no doubt would take less than a day, is not the vehicle for restating the proper principles of judicial review.  But, your Honours, I think I would only be repeating myself.  May it please the Court.

DAWSON J:   Thank you, Mr Catterns.  We need not trouble you, Mr Basten.

There will be a grant of special leave in this matter.  The Court will adjourn to a date to be fixed.

AT 2.20 PM THE MATTER WAS CONCLUDED