Minister for Immigration and Border Protection v SZVFW & Ors

[2018] HCATrans 44

[2018] HCATrans 044

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S244 of 2017

B e t w e e n -

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Appellant

and

SZVFW

First Respondent

SZVFX

Second Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Third Respondent

KIEFEL CJ
GAGELER J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 MARCH 2018, AT 12.01 PM

Copyright in the High Court of Australia

____________________

MR N.J. WILLIAMS, SC:   May it please the Court, in that matter I appear with MR P.D. HERZFELD and MR M.T. SHERMAN, for the appellant.  (instructed by Sparke Helmore Lawyers)

MS K.A. STERN, SC:   May it please the Court, I appear with MS L. ANDELMAN, for the first and second respondents.  (instructed by Kinslor Prince Lawyers)

KIEFEL CJ:   Yes, Mr Williams.

MR WILLIAMS:   Your Honours, in paragraph 46 on page 167 of the book the Full Court acknowledged that the primary judge’s decision on unreasonableness was not a discretionary decision.  It is, nonetheless, quite clear, in our submission, that the Full Court approached the question of error on that point as requiring demonstration of a House v The King type of error in order to justify appellate intervention. 

That is, in our submission, tolerably clear from paragraph 45 alone, on the previous page.  After characterising in the opening sentence the Minister’s complaints as couched “in terms of excessive or inadequate weight”, the Court went on from about line 9 to state that “helpful guidance” in challenges to evaluative judgments could be obtained from authorities emphasising “the need for caution” in appellate intervention with respect to discretionary judgments.  In the previous paragraph, 44, the primary judge’s finding had been identified as an evaluative judgment because it involved determining what weight should be given to individual circumstances.

In 43 the court had observed that it is incorrect to invite an appellate court to determine a question of legal unreasonableness for itself, a proposition that the court derived mainly from the judgment of the Full Court in Mesa Minerals.  In due course I will go to that judgment to demonstrate that the passage in paragraph [85] was directed to an insufficiency of evidence against the evidence point and was of no assistance in the present context.  But then, having stating the principles in that way, from page 167, from paragraph 48 going forward in the judgment, the Full Court looked for appealable error.  In the opening line of paragraph 48, the court was:

not satisfied that appealable error has been demonstrated in relation to the weight –

on one matter, and 49:

no appealable error –

on another matter.  In 51:

no appealable error is demonstrated in respect of the primary judge’s failure to include among the bundle of relevant circumstances –

Paragraph 52:

the same may be said –

of other matters.  Then in 54:

no appealable error has been established because the primary judge did not include [particular matters] among the bundle of relevant considerations the fact that the husband had stated on the original visa application that he did not agree –

And, as is we think common ground, the Full Court did not address for itself whether the Tribunal’s exercise of discretion was legally unreasonable.  The Court did not, at any point in the judgment, look at that question for itself.  So, in short, we say that the approach the Court took was quite clear from those matters.

The applicable principle we identify in our outline at paragraph 3, that a discretion – in the broad sense in which that term was used by this Court in Coal and Allied – involves latitude or choice in a decision‑maker – be it judicial or administrative – and that, necessarily, involves a need to identify error in order to impugn the decision.  But, as here, where there is only one legally correct decision, it is sufficient to demonstrate that the conclusion reached was the wrong conclusion without a need to identify error of principle.  The authorities we rely on in that respect are from paragraph 4; there is Minister v Stretton ‑ ‑ ‑

KIEFEL CJ:   Is that where the word “evaluative” appears to have crept into the language in this area?

MR WILLIAMS:   It is, yes.

KIEFEL CJ:   And you say that is a misunderstanding of what Chief Justice Allsop was attempting to convey in relation to the exercise of discretionary powers?

MR WILLIAMS:   Indeed.  In paragraph 25 the judgment makes it quite clear that although in some senses paragraph 25 in Minister v Stretton 237 FCR 1, while in some senses a question of legal unreasonableness may be viewed as partly evaluative, it is not one that calls for a House v The King approach, because there is ultimately only one correct answer ‑ the power is either lawfully exercised by the Executive, or not.  While reasonable minds might differ about that, there can only be one answer.  That was cited with approval by a unanimous Full Court in Eden.  We do not need to take the Court to that.

KIEFEL CJ:   It is necessary though to address what was said in Li in relation to the principles to be drawn by analogy from House v The King, is it not, because if the Full Court in this case is applying House v The King in relation to appealable error, nevertheless it was said in relation to the review of statutory discretionary powers that there was something useful to be drawn from House and the review of judicial power in House v The King, and that was said to arise from what was said in Peko‑Wallsend by Justice Mason.

MR WILLIAMS:   We accept there is that analogy when a court is considering the question of unreasonableness.  Nonetheless, in our submission, for the reasons given by Chief Justice Allsop in paragraph 25 of Stretton, there can only be one correct answer to that question and that we understand to be common ground on the appeal.  

GORDON J:   Does it come down to this on your submissions that really there are two potential avenues to legal unreasonableness?  There are the House v King‑type of analogies of identified error and then there is the stepping back by reference to the statutory framework, looking at the material as a whole and just saying the decision is unreasonable on its face regardless of whether error is identified or not.  In a sense, what the Full Court here did was take one path and not the second.

MR WILLIAMS:   That is so.  It was necessary for the Full Court here to take both, to consider both.

KIEFEL CJ:   So do you mean by that that the Full Court has misapprehended that what was spoken of by way of analogy with House v The King is that there may be cases where one can draw an inference about the conclusion reached as being lacking logic or whatever - it has confused that with giving weight to matters of discretion where there is an instance where the true ambit of discretion operates.

MR WILLIAMS:   That does appear to be the error that the Full Court has fallen into with respect ‑ ‑ ‑

KIEFEL CJ:   It has elided the two somehow?

MR WILLIAMS:   It is not completely clear, in our respectful submission, the path of reasoning that has been followed by the Full Court but it certainly has required House v King‑type of error on appeal and in our submission that is not the correct approach on appeal.  It is sufficient that the appellate court – considering the matter for itself – reaches a view ‑ ‑ ‑

NETTLE J:   But the primary judge would have to apply something like a House v King in deciding whether the Tribunal had gone wrong, would she not?   

MR WILLIAMS:   It is akin to, as the court said ‑ ‑ ‑

NETTLE J:   It is analogous, yes.  In effect, as you say, the Court of Appeal or the Full Court has then to ask itself do we agree with her Honour’s conclusion and so de facto it must too apply something analogous to a House v King in answering that question – asking itself was it beyond the bounds of reasonable decision‑making for the Tribunal to decide as it did.

MR WILLIAMS:   Yes.  It can, for itself, identify an error in the reasoning applied by the primary judge.

NETTLE J:   If it comes to the conclusion that it was not beyond the bounds of reasonableness for the Tribunal to decide as it did you would say that it must then hold that the primary judge was wrong.

MR WILLIAMS:   That is so.

NETTLE J:   It is as simple as that. 

MR WILLIAMS:   It is bound to give effect to…..and we say that follows from paragraph 25 of Stretton.  We have some New Zealand authority that I will go to shortly that makes the same point.  Paragraph 25 of Stretton came quite directly from his Honour’s analysis in Branir and perhaps I should go directly to that and then to the New Zealand authority.  But we accept, with respect, that that is where the case turns and that is really the one point in the case.

GAGELER J:   It is really Warren v Coombes, is it not?

MR WILLIAMS:   Yes.

GAGELER J:   I have not looked again at Warren v Coombes, but is there anything in the actual reasoning in that case that is of assistance to us?

MR WILLIAMS:   I will take your Honours to it in a moment.  It is in our authorities.  I am sorry – it is in our friends’ authorities but it is before the Court.

NETTLE J:   It is a bit different, though.  Warren v Coombes is about finding facts all over again and a hearing by way of rehearing.

MR WILLIAMS:   That is so.

NETTLE J:   Whereas you are asking a different question here:  was something beyond the bounds of what a reasonable decision‑maker could have done?

MR WILLIAMS:   Yes, a question to which there can only be one legally correct answer.

NETTLE J:   One answer.  Unlike a Warren v Coombes where there is invariably more than one possible answer.

MR WILLIAMS:   That is so.  In Branir v Owston 117 FCR 424, paragraph 25 - Branir, of course, was a case that was very much about factual finding because in that case what the appellant sought to do was to take the findings that had been made by reference to witnesses and credit and then to demonstrate error without impugning those findings to demonstrate in a sense factual error by reference to other matters.  So the beginning of paragraph 25 deals with factual findings but then about halfway through the paragraph after the reference to Zuvela:

In circumstances where, by the nature of the fact or conclusion, only one view is (at least legally) possible (for example, the proper construction of a statute or a clause in a document, where, although, as often said, minds might differ about such matters of construction, there can be but one correct meaning . . . the preference of the appeal court for one view would carry with it the conclusion of error.

That is, we say, where we are here.  That approach is apparent in the New Zealand authorities.  It is New Zealand alone in English‑speaking jurisdictions we have found assistance from because the English authorities are overlaid with European Convention on Human Rights and Canada and the US are overlaid with deference but in New Zealand we have handed up the two leading decisions. 

The first is Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141. The Chief Justice gave the judgment of the court and the relevant paragraphs start from [13]. Paragraph [13] shows that the appeal is very much, by statute, analogous with the appeal to the Full Court of the Federal Court. It is a rehearing but not a de novo rehearing and some of the principles are there referred to. Then, in paragraphs [16] and [17] the principle is set out.

GAGELER J:   Does New Zealand have the same approach to appeal from exercises of discretion as is found in House v The King?

MR WILLIAMS:   It does.  I am coming to that.  So, the next case that we have handed up is Kacem v Bashir [2010] 2 NZLR 1. In this case the Chief Justice and Justice Young were in dissent on the facts, but the majority applied, as is apparent from paragraph 31 and following, the approach of the Chief Justice or writing for the court in the previous case.

GORDON J:   Mr Williams, could I have that reference again, please?

MR WILLIAMS:   This is ‑ ‑ ‑

GORDON J:   No, just the passage you took us to.  What paragraph number did you refer us to?

MR WILLIAMS:   Thirty‑one.

GORDON J:   Thank you.

MR WILLIAMS:   Paragraph 31 is a reference to the Court of Appeal’s approach and the two key paragraphs are 32 and 33.  The answer to your Honour Justice Gageler’s question is in the first of those.

GAGELER J:   It probably does not matter, but I am not exactly sure that an Australian appellate court would approach the precise issue in Kacem v Bashir with the same principle in mind.  I do not think it affects the argument you are presenting, but we might well apply House v The King to a decision of this nature.

MR WILLIAMS:   I appreciate the point your Honour is making and perhaps I can go directly to that to focus on what I apprehend to be the point of distinction, and that is to be found in Coal and Allied Operations which is on our list. That is reported in 203 CLR 194. The key paragraphs are 19 and 21 in the joint judgment of Chief Justice Gleeson and Justices Gaudron and Hayne. I apprehend your Honour Justice Gageler to have been making a point that is directly addressed in 19.

GAGELER J:   Yes.

MR WILLIAMS:   And 21 is plainly the point of principle for which we contend in our submissions.  I did undertake to refer to Mesa Minerals in slightly more length to demonstrate that the key passage on which the Full Court below relied was directed to a different point.  We have made available Mesa Minerals in 241 FCR 241. There were three grounds of appeal and they can be seen from paragraph 32 on page 249. The first ground was:

a complaint that the findings that Mighty River acted in good faith and that the inspection was to be made for a proper purpose were against the evidence. 

The second and third grounds, which are referred to in the succeeding paragraphs, were about exercises of discretion, the third one being about a challenge to the discretionary decision about the scope of the orders.

Paragraph 85 is the passage that the Full Court below in the present case quoted.  Nonetheless, it is plain from looking at paragraphs 86 and 87 that paragraph 85, and that which precedes it, is directed to the first ground, which is about whether the findings were against the evidence, and the remaining two questions in 87 were discretionary.  So we say for that reason Mesa Minerals did not supply the assistance that the Full Court below apparently derived from it.

In substance, that is the point we make on the first ground of the appeal.  We say – and this is really from paragraph 12 of our outline – that there was no unreasonableness in the Tribunal’s conduct here.  We say, firstly, that the primary judge’s doubt about whether section 441A was satisfied is irrelevant, given that the primary judge resolved the matter on the assumption that it was and there has been no notice of contention in this Court, nor in the Full Court.

We say in any event that the material – and I think this is at page 98 of the book – the Tribunal postal dispatch register was, we submit, really quite clear.  There is only one letter that is possibly in question relating to the first respondent.  The record identifies that for the date of 15 August 2014, being the date that letter bore, and the details are completed down the bottom.

The primary judge saw something significant in the failure to cross out at the foot of the page the “[collected by/delivered to] Australia Post” option.  We would say it is really quite clear that one or the other occurred on that day from this record and so, on that basis, it is really quite clear that the letter was sent within three days.

We submit in respect of the Full Court’s analysis, this is really from paragraph 13 of our submissions, that it paid insufficient attention to the respondent’s previous interactions with the delegate.  Page 73 of the book contains those interactions.  At the foot of that page, reading from about point 8, it is plain that the first respondent, who was the identified point of communication for both, was notified of the hearing date, indeed, by a:

Mandarin speaking departmental officer –

and nonetheless, did not attend the hearing before the delegate.  And at the top of 74 it is made clear in that decision that:

the applicant would have been required to satisfy –

the delegate of various of matters but:

did not avail himself of this opportunity ‑

So, it is clear that the respondent knew of the hearing before the delegate but neither explained that non‑appearance, nor provided more information when it came to the Tribunal hearing.  Pages 4 to 5 of the Tribunal’s reasons in this respect and there, really paragraphs 15 through to 17, which set out the Tribunal’s reasoning in respect of the non‑appearance and so we say that that was a proper basis for the Tribunal to proceed on and the Full Court did not pay sufficient attention to those key interactions.  Now, your Honours ‑ ‑ ‑

GAGELER J:   I suppose it really does not matter.  The burden of your submission is we should not be parsing the Full Court’s reasoning in this respect.  The question for us on appeal, on your ground 2, is do we conclude or not conclude that the decision was unreasonable.

MR WILLIAMS:   That is so, and for the reasons that we give by reference to that material, the decision was not unreasonable and the application to the Tribunal itself did not put forward any more information than had been before the delegate.  So, it is sufficient then simply to refer to what we have said in our oral outline and in our written submissions and those are the submissions that we make.

EDELMAN J:   You have referred, at the end of your outline, to Donnellan v Woodland.  Is the exercise that you have described – which either this Court is engaged in in relation to the second stage – or the second ground of appeal – or the Full Court should have been engaged in – one which starts with the legal test for unreasonableness and applies that to facts that have been found which is described as “evaluative” in the same sense as in cases like Donnellan v Woodland, the description of “evaluative” is also applied to that same approach in the law of torts about reasonableness in determining whether or not a duty has been breached?

MR WILLIAMS:   We accept that a court, on appeal, starts with the facts as found or agreed.  The approach, we would say, starts with the statute and proper construction of the statute – an application of the test of unreasonableness to those facts.  I am not sure whether that has addressed your Honour’s question.

EDELMAN J:   This label of an “evaluative” as opposed to a “discretionary” decision, it is attempting to encapsulate the process of applying a legal test to facts that have been found.  Is that label describing anything different in relation to unreasonableness in administrative law as it would describe unreasonableness in the context of the law of torts?

MR WILLIAMS:   For our part, we respectfully deprecate the use of the label “evaluative”.

EDELMAN J:   I understand that.

MR WILLIAMS:   It is a useful term in the sense of describing that there are matters on which reasonable minds may differ.  Where precisely it would apply in a tort case would need to be considered issue by issue. 

EDELMAN J:   It is used, for example, by the UK Supreme Court ‑ ‑ ‑

MR WILLIAMS:   Yes.

EDELMAN J:  ‑ ‑ ‑ in [2018] UKSC 13 in Steel which was a torts case, to describe the same process of application of a legal requirement for reasonableness to facts that have been found.  My question is, really, whether or not whatever label one attaches to that, it is the same process, or exercise, that we are concerned with in the administrative context.

MR WILLIAMS:   We would say that it is, and it is very much to make good on my other outstanding promise.  Warren v Coombes 142 CLR 531 – really from page 552, or perhaps 551 at about point 8, after the reference to Edwards v Noble:

Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.  In deciding what is the proper inference to be drawn, the appellate court will give respect and weight . . . but,

once having reached its own conclusion, will not shrink from giving effect to it.

Then, on 552 beneath the reference to Ward v James:

Again with the greatest respect, we can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision.  To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process.  The duty of the appellate court is to decide the case – the facts as well as the law – for itself.  In so doing it must recognize the advantages enjoyed by the judge who conducted the trial.  But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.

That is essentially the applicable principles, in our submission.  That is applied at 553 at about point 2 on page 553:

In the present case, the Court of Appeal was, and this Court is, obliged to reach its own conclusion as to the inferences to be drawn from the primary facts . . . Having given due weight to the conclusion reached by the learned trial judge we are unable to agree with it.  The respondent’s car was not being driven as near as practicable to the correct side of the roadway – it was eight or nine feet further away –

We do, in the concluding paragraphs of our outline, refer to “stringency”, the stringency that comes from this Court’s reasons in Li and that legal unreasonableness is in fact dependent and it does not preclude the Court from giving effect to its own view, to use the words of Warren v Coombes.  Unless there are matters with which I can assist, those are our submissions.

KIEFEL CJ:   Yes, thank you, Mr Williams.  Yes, Ms Stern.

MS STERN:   Your Honours, as to the first ground of appeal, our submission is that, properly construed, the Full Court did not require a House v The King error to be shown; rather, that the approach of the Full Court was to approach the appeal by starting with the analysis and judgment of the primary judge, give respect and weight to that judgment but to decide whether error had been shown.  In approaching that task, the Full Court had regard to the nature of the judgment in this case which was a judgment of the primary judge which turned largely upon her evaluation of factual circumstances and the weight which she gave, and that there was no error in the Court approaching the appeal in that way.  So, there is a fundamental difference in starting point in how we say that the judgment of the Full Court should be approached.

In that context, if I could ask the Court to go first to the judgment of the Full Court which begins in the appeal book at page 148, but to turn please to paragraph 28, and in paragraph 28, page 160 of the appeal book, it sets out the submissions that were made by the Minister as regards the alleged errors in the exercise of the primary judge’s function.  The Minister identified a number of specific ways in which it was said that the primary judge had erred, and those were the errors that were relied upon before the Full Court as supporting the conclusion that the Minister urged upon the Court that the primary judge had erred in reaching a conclusion of legal unreasonableness.

We say that that fundamentally shapes the approach of the Full Court, which was to look at those alleged errors, decide whether they were made out and, just to make it clear, we do not accept that the Full Court did not consider for itself at all whether the Tribunal’s decision was legally unreasonable.  Rather, we say, properly construed, the Full Court’s conclusion was that the primary judge had not erred in reaching that conclusion.

So, the matters that were relied upon, as the Full Court later correctly observed, were matters which went to a significant degree to questions of weight.  At the first bullet point, paragraph 28, the Minister relied upon a criticism of:

The significance placed [by the primary judge] on the proposition that the Tribunal could not have been satisfied that the applicants were aware of the hearing date and time –

The second bullet point was a submission that the primary judge had ignored certain evidence or circumstances.  The third related to the significance that was given by the primary judge to the hearing invitation in the context of an application for a protection visa.  The fourth was a submission that in effect what the primary judge had done was to elevate the entitlement of a tribunal to seek to take further steps to enable an applicant to appear to an obligation.  The fourth and fifth related to the primary judge’s reliance upon particular authority or the primary judge’s submissions in relation to thereto.

There follows at paragraph 29 an extract of submissions made on behalf of the Minister in oral address.  The significance of those submissions is that the last two lines state:

it’s not necessary for your Honours to say the primary judge made a legal error in the course of her Honour’s analysis.

The Full Court’s reference to authority and the explanation later in the Full Court’s judgment we say, properly construed, largely responds to that submission which the Full Court has understood as a submission that it is not necessary on appeal to show that the primary judge erred but rather that the Full Court could start the matter afresh as if the primary judge had never reached her Honour’s decision and considered the question of legal unreasonableness as if there were no primary judgment.

We say that the Full Court did not err in rejecting a submission in those terms and I will go to Warren v Coombes in some detail in due course.  What is absolutely clear from Warren v Coombes is that on appeal an appellate court does not stand in the shoes of the primary judge, as it were, as if there were no primary judgment; rather, the role of the appeal court is to identify error in the conclusions of the primary judge and that the appeal court must give respect and weight to the primary judge’s analysis.

If I could ask the Court then to turn to paragraph 37 on page 162, again we say that this paragraph where the Full Court directed itself that:

The appeal turns on the question whether the primary judge correctly understood and applied in the particular circumstances of this case the principles . . . [derived from] cases such as Li, Sing and Stretton –

shows unequivocally that the Full Court did not apply an approach where it required demonstration of a House v The King error.

Rather, the Full Court identified ‑ correctly, we say – that the question for it was whether the primary judge’s application in the circumstances of this case of principle was correct.  We say that is entirely consistent with paragraph 25 from Stretton that Mr Williams went to whereby Chief Justice Allsop identified that in a question of legal unreasonableness there will be, as a matter of law, only one correct answer, and here in paragraph 37 the Full Court we say is recognising that and saying what it has to ask itself is whether the primary judge came to the correct answer.

GAGELER J:   How do you explain paragraph 45?

MS STERN:   Well, your Honour, if I could just go first to the context of paragraph 45 and the context really starts at paragraph 40, page 164 and the starting point for the Full Court was that:

It is an appeal in the nature of a rehearing.

And four lines into the paragraph, line 20, it:

is not a new hearing during which the original application is determined without regard to what happened in the Court below and without regard to its findings –

So that is the starting point and that is why I drew the Court’s attention to paragraph 29 in the Minister’s submission because this analysis of the Full Court can be seen as largely responsive to the submission that was extracted in paragraph 29 of the Full Court’s reasons.  In paragraph 41 the Full Court identifies that:

the role of the Court on an appeal by way of rehearing is the correction of error.

Paragraph 42, it identifies that it would wrong to:

simply invites the Full Court to consider the matter afresh and come to its own view, which appeared at least at one point to be the position advanced by the Minister –

NETTLE J:   Well, I think it still is, Ms Stern.  It is still the Minister’s position, as I understand it, because of the nature of the decision, which is to say, rather than being a question of fact which is to be determined as a process of inference it is a question of law to determine whether the original decision is beyond the ambit of what was reasonable.

MS STERN:   Your Honour, the conclusion will, either as a matter of law, be correct or not, but that conclusion as to legal unreasonableness may rest on any number of different processes of analysis and here the conclusion rests on a twin process of analysis.  The first is construction of the relevant statute to identify the ambit of decisional freedom and the second is to evaluate the circumstances and identify whether or not, on the facts of this case, the Tribunal has gone beyond that ambit of decisional freedom.  As we understand the submission that is advanced by the Minister, it is that there is only one correct answer to that, and we do not dispute that, that as a matter of law a decision either will or will not be legally unreasonable.

GORDON J:   You have a dispute about process in the end about how it is you make that assessment.  As I said to Mr Williams, as one reads the Full Court’s decision, it seems they have taken one aspect of a potential approach to assessing reasonableness or unreasonableness; that is, identifying error in the sort of classic way without stepping back and looking at it in the other way identified in Li which is taking the whole matter as a whole through the statutory framework and assessing in a sense for themselves that question as to whether or not the decision is reasonable or unreasonable.

MS STERN:   Your Honour, we say the first step is that the Full Court engaged with the criticisms of the primary judge’s decision that were made on behalf of the Minister.  So the Full Court directly engaged with what was said to have gone wrong with the primary judge’s analysis of whether or not this decision by the Tribunal was legally unreasonable. 

GORDON J:   If you go back to 27, I think it is 27 or 28 where the matters are set out, and if you take the bullet points and, in effect, not take them in order, I read bullet point 1 and 4 as really complaints about not looking at the statutory framework properly, that is, not taking into account the entire statutory framework against which this decision was to be based.  Do we see engagement with that?  The other categories seem to be what I will call broadly complaints about particular circumstances having assessed properly what is the proper statutory framework.  There does not seem to be that sort of approach either by the Full Court.

MS STERN:   Well, your Honour, if I could just address the first and the fourth bullet points, whilst they are complaints that go to the impact of a proper construction of the statute, in particular, the deeming provisions, the actual complaint made was that the significance placed upon one proposition was inconsistent with the deeming provision.  So the complaint, to some extent, is a complaint about statutory construction and to some extent is a complaint about weight, that the primary judge gave too much weight to that particular factor bearing in mind the statutory context.

But if I could, in answer to the substantive point your Honour is putting to me, the Full Court’s analysis of each of the grounds upon which criticism was made starts at paragraph 48 at page 167 and we say, firstly, that when one looks at this analysis from paragraph 48 through to paragraph 57, there is nothing that one would have expected to see if the Full Court were applying a House v The King standard because if one were looking for whether or not there was a House v The King error, a failure to give the correct weight to a particular consideration would not fall within House v The King.  It would have to show that it really amounted to a failure to exercise the discretion altogether. 

So, when one looks at this analysis and the kind of engagement that one sees from the Full Court, we say that is directly inconsistent with the Full Court having applied a House v The King standard.  But dealing with the question of whether or not the Full Court has engaged with the first and the fourth bullet points and the way in which they are raised, what the Full Court has said in paragraph 48 is effectively to express agreement or, put the other way, to say they are not satisfied that error has been demonstrated in relation to the weight that the primary judge gave to the proposition bearing in mind the statutory context.

So, whilst the reasoning is not extensive, the Full Court has addressed that ground upon which the primary judge’s decision was criticised and rejected the criticism.  Equally then, in relation to ‑ ‑ ‑

NETTLE J:   Ms Stern, just to concentrate on 48, is what the Full Court there saying, in effect, we may not necessarily agree with the weight which the judge has put on that consideration but we cannot say it is erroneous?

MS STERN:   No, your Honour.  What we would say is that what the Full Court is doing is saying I have looked at what the primary judge has said – I have looked at your submission – I am not satisfied that the primary judge erred. 

NETTLE J:   “I am not satisfied that she put too much weight on that consideration”.

MS STERN:   Yes, and that would be a criticism that could not be made in a House v King complaint.

NETTLE J:   That is true.  But should not the real question the Court of Appeal be asking itself is what weight should be put on that consideration?

MS STERN:   Your Honour, we say that it is entirely proper on appeal to start with the analysis of the primary judge, to give it respect and weight.  We accept that that is an entirely elastic concept as to the extent to which respect and weight in any particular case has significance but that you start with the primary judge’s reasoning and then you decide whether you are satisfied that it is right or wrong.

EDELMAN J:   But this comes back to Justice Gordon’s question to you earlier, does it not, that there are two approaches?  On one approach you do start with each stage of the reasoning of the primary judge, but on the second approach which just complains about the conclusion that has been reached, you do not necessarily need to look through each stage of the primary judge’s reasoning. 

MS STERN:   Your Honour, I appreciate that one of the hurdles I have to surmount – if that is the right word – is to show that even though there is no paragraph in this judgment that says on the whole we have considered the decision and that we are satisfied that the Tribunal’s decision was legally unreasonably, I accept there is no paragraph which says that.  If there was a paragraph that said that we may not be considering that particular issue.

But we say that when you view the judgment of the Full Court as a whole the Full Court has engaged with the criticisms – has identified that this was a conclusion which was largely evaluative.  The significance of that is that the Full Court has identified that the ultimate answer to whether or not this decision was legally unreasonable stemmed from a balancing of factors by the primary judge and weight being given to those factors as the primary judge considered appropriate.

So, in considering the balancing and the weight that was given, that is, in effect, considering the correctness of the conclusion because the conclusion that has been reached by a process of balancing a range of factors, if one concludes that correct weight was given to each factor, that in itself will likely answer the questions whether the ultimate conclusion was erroneous.

GAGELER J:   Ms Stern, the difficulty I have with this characterisation of what the Full Court did is that the Full Court, at page 137 of the appeal book, had a single, quite clearly expressed ground of appeal before it, that is, the primary judge erred in concluding that it was legally unreasonable.  Then you see in paragraph 29 of the Full Court’s judgment, upon which you place some weight, it is said that:

In oral address, and in response to an invitation from the Court to identify appealable error on the part of the primary judge, counsel for the Minister said –

what is said.  Why is not the ground of appeal expressed in terms of appealable error?  What more does one need to establish appealable error than a wrong conclusion on the facts as found?

MS STERN:   Your Honour, a wrong conclusion on a question of legal unreasonableness would of course be a proper appeal ground and a basis upon which the decision below should be overturned.  But the way paragraph 29, at page 161 of the Full Court’s analysis, is set out, we say that the significance that the Full Court placed on that is the submission that it was not necessary for your Honours to say the primary judge erred and it is as much a matter for your Honours to answer the question as it was for the primary judge.

The Full Court appears to have seen that as suggesting that it could effectively put the judgment of the primary judge to one side altogether and just start afresh and not consider the primary judge’s analysis in any way but just start the process as if it were a court of first instance.  That is largely reflected in paragraph 42 at page 165 where the Full Court has, at the second line of that paragraph, identified the appearance of the Minister’s submission as being to simply invite:

the Full Court to consider the matter afresh and come to its own view –

So the difference between what we say and what Mr Williams says is we say you do not consider the matter afresh and come to your own view.  The appeal court should start with the judgment, an analysis of the primary judge, and then decide whether there is an error in that analysis.

GORDON J:   So, consistent with that submission, what happens if, for example, the primary judge’s decision does not contain any reasoning?  You cannot start there.  You have to go to the second stage of the second alternative route and assess it.  In a sense, that is what this Appeal Court was being asked to do:  step back from it and look at it and it did not, did it?

MS STERN:   Well, your Honour, if there were no reasons one could criticise the decision of the primary judge on the basis that the inference was unsupported in the circumstances.  There would be – and I fully accept that there would be room for a ground of appeal which was that a finding of unreasonableness was unsupported or was not properly reached in the circumstances.  One would then have to look at the analysis and see whether the circumstances as found supported the conclusion. 

I appreciate that the submission I am making involves a fine distinction, but what we say is that when one looks at what one had here – and the Full Court was careful to make it clear that it was considering this particular case and this particular finding by the primary judge, which was one based largely upon an evaluation of competing circumstances – one should start with that evaluation and ask whether it is in any sense erroneous.

GORDON J:   Do you start with the evaluation or do you start with the statute and what it tells you about the power that is to be exercised?

MS STERN:   Well, your Honour, in any case of legal unreasonableness I should have said one would always start with the statute and that would be relevant both as to the ambit of decisional freedom but it might be relevant as to the weight that could be given to relevant - certain circumstances. 

But the distinction that we draw and we say the Full Court was drawing was between putting the primary judge’s decision to one side altogether and starting afresh and starting with the decision of the primary judge, giving it respect and weight, but then reaching your own conclusion as to whether or not there was error in the conclusion reached.

EDELMAN J:   But respect and weight in relation to what?  It is not respect and weight in relation to any conclusions of fact which are made by the Tribunal, nor is it respect and weight in relation to the requirements of reasonableness that come from the statute.  You are suggesting that it is respect and weight in applying legal requirements of unreasonableness to factual findings that have been made.

MS STERN:   Your Honour, yes, we say respect and weight is something which is part of the appellate process in an appeal by way of hearing.  Your Honour, obviously if there is a situation in which there is a finding of credibility or an assessment of oral evidence, respect and weight will have a particular content but we say that it is entirely consistent.  If I could take – I am not sure.  Would the Court like to adjourn for ‑ ‑ ‑

KIEFEL CJ:   I think this might be a convenient time.  We will adjourn for lunch and we will resume at 2.15.

AT 12.55 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ:   Yes, Ms Stern.

MS STERN:   Your Honours, if I could start by dealing with three questions that arose before lunch.  The first was that your Honour Justice Gageler asked me what was the point - or what was the meaning of paragraph 45 in the judgment of the Full Court, and paragraph 45 is to be found at page 166 of the appeal book.  If I could respond to that by asking your Honours to turn back a page to 165 and looking first at paragraph 44.  It was the key conclusion of the Full Court that they considered that the primary judge’s finding as to legal unreasonableness was one “which turned on her Honour’s evaluative judgment”.

In a sense that responds also to a question that your Honour Justice Gordon put to me about the different paths that one could take to reach a conclusion of legal unreasonableness.  The Full Court identified that in this case the trial judge, the primary judge, had reached that conclusion based upon an evaluative judgment.  In the light of that characterisation of the decision of the primary judge, over the page at page 166 at the end of paragraph 44 the Full Court identified that:

This evaluative exercise necessarily involved the primary judge determining what weight she should give to individual relevant circumstances.

That conclusion, we say, shaped the Full Court’s approach to whether or not there was error in this case by looking at weight and the evaluation of individual circumstances.

In terms of the citation from Lovell v Lovell, the Full Court five lines into paragraph 45, identified that they considered that:

by broad analogy, helpful guidance can be obtained from well‑known authorities which emphasise the need for caution by an appellate court which is asked to disturb the outcome of a discretionary judgment, where evaluative issues are also necessarily involved.

Then, at paragraph 46, the Full Court has clarified:

Lest there be any misunderstanding, we are not suggesting that the primary judge’s decision was a discretionary judgment.  Rather, we are emphasising the fact that the judgment on the legal unreasonableness ground was largely an evaluative one.

In the light of those three paragraphs, we say that paragraph 45 does precisely what the Full Court said it was doing, provides some guidance as to the need for caution by an appellate court when they are considering the correctness or error in evaluative judgments and that it does not go any higher than that and that, indeed, paragraph 46 is a key paragraph we rely upon as showing that the Full Court did not apply a House v The King standard.

That then brings, if I could respond to a question that your Honour Justice Edelman put to me before the luncheon adjournment, and your Honour asked me what it meant to say that respect and weight would be given to the judgment of the primary judge in a case such as this where the context is that there are no credibility findings and there was not a trial on oral evidence.  We say that the respect and weight is respect and weight being given to the evaluative conclusion in deciding whether or not the appeal court considers that there was error.

So, it is respect and weight being given to the analysis on an evaluative conclusion before deciding that it was wrong, and a key distinction there has to be drawn between that form of respect and weight, that you look at the reasoning and then say do I think that is wrong and a form of deference which would involve one saying well, I reached a different conclusion but I should defer to the judgment of the trial judge.

So, that is what we mean and in that context, if I could ask your Honours to turn to the decision of this Court in Warren v Coombes 142 CLR 531, and if I could ask your Honours to turn first to page 536. Warren v Coombs was a case of negligence.  It was not a case about factual findings, it was a case about the approach on appeal to the inferences that should be drawn from findings of fact.  At the bottom of page 536, six lines up from the bottom, Justices Gibbs, Jacobs and Murphy refer to the approach that was taken below:

it was said that the question for decision was simply one of fact and that the majority of the Court of Appeal rightly deferred to the decision of the learned trial judge.  It would not be enough, so it was said, that if they had been trying the case they might have drawn different inferences from the facts.  So the important question arises what is the duty of an appellate court when questions of credibility have been decided and the matter which remains for decision is what inferences should be drawn ‑

So, the issue was the appellate approach to the drawing of inferences and, in particular, whether or not there could be error if the appeal court considered that they might have drawn different inferences from the facts.  So, the question really concerned the second potential meaning of, or deference, namely, if an appeal court does reach a different conclusion from the primary judge, is that sufficient to establish error.

In that context, the court looked at page 539 to the decision of the House of Lords in Benmax v Austin Motor Co. Ltd [1955] AC 370. Towards the bottom of the page in the citation from the speech of Viscount Simonds, six lines from the bottom, Viscount Simonds said:

In such a case, it is the duty of the Court of Appeal to make up its own mind, not disregarding the judgment appealed from ‑

and that, we say, is of significance:

and giving special weight to that judgment in cases where the credibility of witnesses comes into question, but with full liberty to draw its own inference from the facts proved or admitted, and to decide accordingly.”

Then, over the page at page 540, the extract continues, and at the start of the text it is indicated:

“This does not mean that an appellate court should lightly differ from the finding of a trial judge on a question of fact, and I would say that it would be difficult for it to do so where the finding turned solely on the credibility of a witness.

Then, about 10 lines from the bottom of that extract, Viscount Simonds considers the position where one is not considering any approach on appeal to a finding of fact but instead to an inference.  He says:

For I have found, on the one hand, universal reluctance to reject a finding of specific fact, particularly when the finding could be founded on the credibility or bearing of a witness, and, on the other hand, no less a willingness to form an independent opinion about the proper inference of fact, subject only to the weight which should, as a matter of course, be given to the opinion of the learned judge. 

Then the judgment continues:

The other members of the House were in general agreement with Viscount Simonds but Lord Reid added some remarks of his own . . . 

“But in cases where there is no question of the credibility or reliability . . . and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion.”

So there is an emphasis on giving weight to the opinion of a primary judge when drawing an inference from facts which are not in dispute.  Towards the bottom of page 541 in Warren v Coombes the judgment continues:

This Court has in a number of cases stated and applied similar principles and has recognized that where the question is whether particular inference should be drawn from proved facts the appellate court has the right and duty to decide the question for itself.

At page 544, towards the top of the page, there is consideration of the case of Edwards v Noble (1971) 125 CLR 296. In that case there was a division of opinion as to the appropriate approach on appeal between the Chief Justice and Justice Windeyer and Justices Menzies, McTiernan and Walsh. At the bottom of page 545, four lines from the bottom, there is a citation from the judgment of Justice Menzies, which he has described as:

what we consider the traditional view.

Then at the top of page 546, three lines in, it states after the number (2):

a court of appeal does not supplant the trial judge by trying the case afresh on the record; (3) a court of appeal, while having regard to the judgment appealed from –

again, has to have regard to the judgment appealed from –

is under a duty to make up its own mind as to the facts; (4) special weight ought to be given to the judgment appealed from if anything turned upon the credibility of witnesses or any other matters as to which the judge hearing the case would have an advantage over the court of appeal; (5) in any case, even those within (4), where a court of appeal is satisfied of error on the part of the trial judge it will correct that error –

Then there is Justice Walsh.  The extract starts:

“My first observation is that I did not intend by what I wrote in Da Costa’s Case to assert that in a case of the kind ‑ ‑ ‑

KIEFEL CJ:   Ms Stern, I think you could take it that we are relatively familiar with the principles in Warren v Coombes.  Perhaps if you could come to your point.

MS STERN:   Your Honour, the only point that we are seeking to make is that it was not suggested that there should be anything other than respect and weight being given to the decision of the judgment of the trial judge, even in a context where the question was one of inference from undisputed facts, and we rely upon that in saying that there was no error in the Full Court starting with the judgment of the trial judge or the primary judge and asking whether the evaluative judgments were erroneous, rather than considering the case afresh and just evaluating for itself the question of legal reasonableness.

I appreciate, your Honours, that the Court is well familiar with these principles, but if I could just draw your Honours’ attention to one final passage at page 549.  This is a passage from the judgment of Justice Jacobs in Cashman v Kinnear, and nine lines into the extract Justice Jacobs says:

It appears to me, though I speak with some diffidence and with great respect, that the only stage at which ‘judicial restraint’ can properly be exercised is upon the initial question whether or not I should arrive at a different conclusion from that of the trial judge.

Your Honours, that is what we say was being done in this case by the Full Court, that there was a degree of judicial caution being exercised before differing from the evaluative conclusions of the trial judge in determining whether or not there was error in the primary judge’s conclusion as to legal unreasonableness.

Your Honours, those are, in essence, the submissions we make on the first ground of appeal, whether the Full Court erred in treating the cases as if there was a need to show an error in the nature of a House v The King error.  We say, in summary, there was no such error.  The Court did not require a House v The King error and there was no error in the Court approaching its own task by starting with the judgment of the primary judge and asking whether the evaluative judgments erred in the way that was relied upon by the Minister and as ‑ ‑ ‑

KIEFEL CJ:   Regardless of the correct approach to be taken by a Full Court in a case such as this, appeal ground 2 has to be addressed, in any event, does it not?

MS STERN:   Your Honour, it does and that is what I am just coming to.  Your Honours, we say that once you have regard to the statutory context and the scope, object and purpose of the relevant provisions of the Migration Act, there was no error in the conclusion of the primary judge upheld on appeal that the outcome of the Tribunal’s decision was one which was beyond the ambit of decisional freedom.

Your Honours, if I could just set out first our submissions in respect of the statutory context.  I think your Honours will have a copy of the relevant provision.  If I could just start with section 420.  I know your Honours have familiarity with these provisions so I will try to move through them quickly.  Your Honours, we say that the statutory context included in particular section 420(1) which was the object of:

The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

This Court in Li affirmed the significance of an equivalent provision in shaping the ambit of judicial discretion and, your Honours, at section 425 is the second aspect of the statutory context we rely upon that:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

Your Honours, this Court in Li held that that has to be to give a meaningful opportunity to appear.  There is then provision in relation to how the notice of invitation to appear should be sent and then at section 426A, the key section here which is that:

if the applicant:

(a)is invited under section 425 to appear before the Tribunal; but

(b)does not appear . . . 

The Tribunal may:

(a)by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it -

In relation to that we say that that should not be construed as in any way detracting from the obligation in section 425 to give the applicants meaningful opportunity to appear before the Tribunal and that the decision in this case failed to give such an opportunity and went beyond the ambit of decisional freedom.  To the extent that reliance is ‑ ‑ ‑

KIEFEL CJ:   Well, it did not deny an opportunity.  Was the question for the Tribunal under section 426A(1) whether to take any further action to allow or enable the applicant to appear before it, after having taken all of the other steps it was required to do?

MS STERN:   Yes.

KIEFEL CJ:   The Tribunal says yes, it was obliged and the reason for that is?

MS STERN:   We say if one looks at the context here there is a range of factors which we rely upon in support of the submission that the decision of the Tribunal was unreasonable.  We say, firstly, the fact that this was an application for a protection visa means that it is an application of considerable significance to the individual applicant.  The second is that this was the last opportunity to have any review on the merits of the application.  The third is, having regard to the Tribunal’s reasons as set out – if I could ask the Court to go to the decision of the Tribunal at page 5 of the appeal book - in paragraph 19 the Tribunal’s substantive reasoning in respect of the application is set out and halfway through the paragraph the Tribunal has set out that:

On the evidence provided, the Tribunal is not satisfied about significant aspects –

and identifies a range of respects in which further detail is required.  We say that given that the key ‑ ‑ ‑

KIEFEL CJ:   Is that by way of taking up what is the point that is made at paragraph 15 which is that the applicants did not provide any further documentation to the Tribunal in support of their claims so that in a way they are leaving the case in the same position as it was before review was sought from the Tribunal.  They are making the position no better.  Therefore, there does not seem to be any reason to take the matter any further.

MS STERN:   Your Honour, the context clearly is one in which the respondents in this Court did not attend at the interview.  That was an opportunity provided before the delegate’s decision.  But the fact remains that a key factor, in fact, the key factor relied upon by the Tribunal in upholding the delegate’s decision is that more detail is required.  We say, if that is ‑ ‑ ‑

KIEFEL CJ:   It was not provided.  I think that is the context, though, is it not?  The point made at 15 is that although asked – although invited to attend or to provide further information neither occurred.

MS STERN:   Your Honour, the context is clearly there.  But the way we put it is we say if the reason why you are going to dismiss an application is because you need further detail and there are readily available means by which you could seek to check whether an applicant had in fact been informed of the hearing before the Tribunal to see whether you could give the applicant, in the words of the statute, “to take further action to allow or enable the applicant to appear before it”, that obligation has particular significance if your key concern in respect of the matters before you is the lack of detail.  So, your Honour, we put it a slightly different way in that we rely upon that in terms of the context within which we say that the decision was unreasonable.

The next matter – and it follows that the Tribunal at paragraph 20 – after having identified that further detail was required – said that:

It follows that, on the information before it, the Tribunal is not satisfied –

So it was the lack of detail which was the key to the Tribunal’s decision here.  The next matter we rely upon is that if one looks at paragraph 17 on the same page of the Tribunal’s decision, the Tribunal simply finds:

that the hearing invitation was sent to the last address for service provided in connection with the review –

and then sets out its decision under section 426A of the Act:

to make its decision on the review without taking any further action to enable the applicants to appear before it.

No evaluation of pros or cons is set out in that paragraph.  Nor is any practical countervailing consideration identified.  So the Tribunal identifies no dis‑benefit in taking a step which would allow or enable the applicant to appear before it.  It simply identifies the facts that give rise to its jurisdiction to make a decision under section 426A. 

So we rely upon that in saying that the factors here are all one way and there are no factors going the other way.  We also rely upon the fact that the applicants to the Tribunal – the application to the Tribunal included a telephone number and an email address for the applicants and so there was ‑ ‑ ‑

EDELMAN J:   Was that for both of the applicants or just for the first applicant?

MS STERN:   I am sorry, your Honour.  It is for the first applicant.  I think it was given as an email address for contact for the applicants.  The reference is the appeal book 79 to 81 but it was readily available and provided as a means of communication to the Tribunal as was the mobile telephone number.  So there were means readily available. 

The final matter we rely upon is the fact that the hearing invitation was in no way tracked.  It was not sent by registered mail.  The respondents had not provided the response that was sought by the hearing invitation and so there was no way in which the Tribunal could have had confidence that these individuals were, in fact, aware of the hearing.

KIEFEL CJ:   Did the applicants ever, before the primary judge, assert as a matter of fact that no notice was received at the postal address?

MS STERN:  Yes, your Honour.

KIEFEL CJ:   Or are we in the realms of the primary judge’s lack of satisfaction?

MS STERN:   Your Honour, it was at page 10 of the appeal book.

KIEFEL CJ:   Apart from saying they were not home at the time.

MS STERN:   Your Honour, in paragraph 2 at page 10 - and this was never contested below and the proceedings have at all times been dealt with on that basis – the first applicant sets out:

My wife and I were not in Sydney at that time, so we did not receive any letter about the interview date.

GORDON J:   Is that the interview date or the hearing?

MS STERN:   Your Honour, it has been understood as referring to the hearing before the Tribunal and in the context of the application to the primary judge it would logically be the inference that one would draw that that was a reference to the hearing date before the Tribunal. 

GORDON J:   Before the court below, it proceeded on the basis that the requirements of 441 had been complied with, giving rise to the presumption of service arising under 441C.  That was not contested below.

MS STERN:   Your Honour, at page 119 the primary judge dealt with the question of whether or not her Honour was satisfied that there had been compliance with the requirements of section 441A(4) and her Honour first considered the postal dispatch register that Mr Williams took your Honours to at page 98 of the appeal book.  Her Honour observed in relation to that that the affidavit evidence – this is the bottom of paragraph 47:

that this form indicated that a letter was dispatched by post by the Tribunal to the Applicant at the nominated postal address on 15 August 2014 does not establish this to my satisfaction.

So her Honour has found that the affidavit evidence did not satisfy her Honour as to compliance with section 441A(4).

Then, her Honour went to consider the face of the document itself and at the bottom of paragraph 50 towards the top of page 120 her Honour in the last five lines of that paragraph expressed:

concern about the extent to which such a postal dispatch register ought to be taken as evidence of the dispatch of a particular letter . . . in circumstances where the Tribunal file (at least for the day in question) is not in evidence before the court.

Then, at paragraph 51, her Honour concluded that:

Insofar as this evidence is relied on in support of –

section 441A(4):

it is not entirely satisfactory.

So there was no assumption made that the deeming requirements were met, if I can put it in that way, but rather her Honour then went on from paragraph 52 and for the remainder of her Honour’s judgment to say effectively, I do not need to go on to consider this because I am satisfied that the Tribunal’s exercise of discretion was legally unreasonable.

GORDON J:   That was not challenged before the Full Court, that is, that, in a sense, stated basis upon which the judgment proceeded?

MS STERN:   There was no notice of contention before the Full Court that the decision should be upheld on the basis that the requirements for the deeming provision were not met but the consequence for that would be that then if the appeal to the Full Court had succeeded the matter should have been remitted back to the primary judge to have the question of whether or not the requirements for section 441A(4) were met – determined.  But, your Honour, that question has not been determined, namely, whether or not the requirements of section 441A(4) are met but Mr Williams ‑ ‑ ‑

EDELMAN J:   I suppose you say that to the extent that it has been determined, it has been determined in your favour although no final conclusion has been expressed on it.

MS STERN:   Your Honour, quite.  We say that there was no conclusion that they had been met and that that is the matter to which Mr Williams’ submission at the conclusion of his submissions where he asked the Court to turn to page 98 which is the register…..  Our simple submission is that the register does not establish that.

NETTLE J:   The Tribunal was satisfied it was served in accordance with the section.

MS STERN:   I am sorry, your Honour?

NETTLE J:   They made a positive finding that it was so served at paragraph 17.  The Tribunal made a finding that it was duly served.  Are we to take it that the primary judge was, notwithstanding all the respect devoted to decisions of first instance, overturning that, or does it stand?

MS STERN:   The issue was argued before the primary judge and the primary judge has found that the evidence did not satisfy her that that was ‑ ‑ ‑

NETTLE J:   So presumably the finding of the Tribunal stands?

MS STERN:   Yes, your Honour, we would say that would be the case, given the primary judge’s reasoning.

NETTLE J:   Well, that is against you then in fact, is it not?  What we have is a finding at first instance by the Tribunal that the document was served.

MS STERN:   But that was ventilated before the primary judge.

NETTLE J:   Who made no finding to the contrary.

MS STERN:   The primary judge found that the evidence that was available did not satisfy her that the ‑ ‑ ‑

NETTLE J:   But determined not to make a finding one way or the other.

MS STERN:   Your Honour, yes, the primary judge did not make a positive finding that the Tribunal had erred in paragraph 17, but the primary judge found that it was effectively an unresolved question before her, although raised before her Honour as to whether or not the deeming provisions were satisfied, and that is a question which has not been finally determined.

NETTLE J:   I do not want to labour the point, but until and unless the finding at first instance at paragraph 17 of the Tribunal’s reasons is overturned, it binds, does it not?

MS STERN:   Well, your Honour, except to the extent that it has been challenged in these proceedings when ‑ ‑ ‑

KIEFEL CJ:   Well, it was challenged by the court actually.  Her Honour raised the issue.  If, as Justice Nettle says, the Tribunal’s finding was to be overturned completely, then a notice of contention should have been put on in the Full Court, should it not?

MS STERN:   Well, your Honour, if there was to invite from the Full Court a positive finding that paragraph 17 ‑ ‑ ‑

KIEFEL CJ:   Well, that her Honour’s decision could have been supported in any event by the intimation by her Honour that she may not be satisfied, without concluding the question.

MS STERN:   Your Honour, there is another issue as regards paragraph 17 which is at page 5 in that the finding of the Tribunal is not a finding expressed in terms of the requirements of section 441A being satisfied.  It is just a finding that the hearing invitation was sent.  That does not amount to a finding that it was dispatched within three days by prepaid post, which is the terms of section 441A.  So, there is no finding by the Tribunal in a positive sense that the requirements of section 441A(4) are satisfied.

NETTLE J:   Surely one cannot act pursuant to 426A unless there has been service.

MS STERN:  Your Honour, there is no dispute that the Tribunal exercised its discretion but your Honour, as I understand it, put to me that there was a positive finding by the Tribunal which needed to be overturned and the submission I make in response is that there is no positive finding by the Tribunal as to satisfaction of the requirements of section 441A(4).  Indeed there is nothing to suggest that the Tribunal directly addressed its terms.

The Tribunal has gone on to consider a discretion and that discretion must be predicated upon the procedural requirements having been met, but there is no finding by the Tribunal that the requirements of section 441A(4) are met.

GAGELER J:   So if you did not have compliance with 441A, the precondition for the exercise of the discretion under 426A would not exist, therefore, you would not get to any question of reasonableness or unreasonableness.  The whole premise of the unreasonableness finding at first instance was that 426A was triggered by the applicant having been invited under section 425 to appear before the Tribunal.  Implicit in that is service in accordance with 441A.

The question then addressed by the Federal Circuit Court was whether the discretion that was enlivened was exercised within permissible bounds.  So I really do not understand going back to raise some issue about 441A.

MS STERN:   Your Honour, we do not put it any higher than to say that the analysis of reasonableness before the primary judge, that the primary judge’s analysis of reasonableness was based upon, if the requirements for the exercise of discretion under section 426A were satisfied, the decision should be set aside in any event for unreasonableness. 

So, your Honour, certainly the analysis of unreasonableness is predicated upon the statutory preconditions for the discretion having been satisfied and there is no doubt about that.  It is simply that there was an unresolved question left on the analysis of the primary judge because the

primary judge did not resolve the question of whether the requirements of section 441A(4) were satisfied.

GAGELER J:   So what follows from that in your submission?  Anything at all?

MS STERN:   What would follow from that is that that remains unresolved and it should go back to the primary judge to determine it or, as Mr Williams – it is a matter that we could readily just draw your Honours’ attention to page 98 of the appeal book and your Honours could reach a clear view as to that in any event.  I understood that that was the burden of Mr Williams’ submission, was that that is a matter which could be put before your Honours and your Honours can reach a view as to that in any event.

GORDON J:   So, what is your submission in relation to page 98 of the appeal book?

MS STERN:   Our submission is that that is insufficient to satisfy the requirements of section 441A(4) because it does not provide clear evidence that the document – namely, an invitation to the respondents – was dispatched within three days as required.  It is as simple as that.

KIEFEL CJ:   Your approach would mean that the proceedings through the two appellate – through the appellate levels – to this Court have been based on a hypothetical premise.

MS STERN:   They have been based upon one ground which was raised which was ‑ ‑ ‑

KIEFEL CJ:   No, the hypothetical is that the deeming provision may have taken effect and, therefore, we are dealing with a question of unreasonableness.

MS STERN:   Your Honour, it has not been resolved.  There is nothing further I can say in relation to that.

KIEFEL CJ:   Yes, I understand.  Thank you, Ms Stern. 

MS STERN:   Your Honour, unless there is any other matter upon which I could assist, those are our submissions.

KIEFEL CJ:   Yes, thank you.  Yes, Mr Williams, anything in reply?

MR WILLIAMS:   Your Honours, could I just say something briefly about the Minister’s case below and if I can say it by reference to the transcript that was attached to the Minister’s submissions in reply.  The transcript immediately follows those submissions.  At the foot of page 17 of the transcript, from about line 40 ‑ ‑ ‑

KIEFEL CJ:   I am sorry, is this in the ‑ ‑ ‑

MR WILLIAMS:   It is not in the book.  It should be attached to the ‑ ‑ ‑

KIEFEL CJ:   ‑ ‑ ‑ submissions.

MR WILLIAMS:   ‑ ‑ ‑ Minister’s submissions in reply, annotated submissions in reply. 

KIEFEL CJ:   Yes.

GORDON J:   What page are we going to, Mr Williams? 

MR WILLIAMS:   Page 17.  It is the first of the annexed transcript pages, your Honour.  It is from about line 40 at the foot of page 17.

KIEFEL CJ:   Yes.

MR WILLIAMS:   The Court asks the Minister’s counsel:

Surely it’s a matter of the context of all the events, the circumstances, all of those other situations, whether it’s easy to make an inquiry, all of the factual matrix –

And, critically:

and don’t you have to persuade us in the particular circumstances of this case that the reviewing judge is in error in some way; that he or she –

going to the top of 18:

misunderstood or misapplied the principles of the High Court as established in Li and had been given an effect to in various different ways or nuanced ways by the judges of this court?

Of course, that is classically looking for a House v The King error.  The Minister’s counsel then submits that the Minister does not have to demonstrate House v The King.  That is accepted, apparently.  Then the submission about line 12:

In a sense, if your Honour has formed the view that ‑ ‑ ‑

Then the court:

It was wrong.

Then Minister’s counsel at 16:

it was wrong, then it was just wrong.

But then, going over to page 21, omitting a couple of pages of transcript, at the foot of page 21, from about line 35, the court:

And if we were reviewing the tribunal’s decisions directly, that would be persuasive, but I would be very grateful if you could identify the error we can attach, because let’s assume that the tribunal did give regard to those matters.  The error you assert is that the learned Federal Circuit Court judge did not give regard to relevant material.  I don’t want to put words in your mouth, but ‑

Minister’s counsel:

No, but in a sense, the primary judge concluded, looking at the circumstances, that it was unreasonable.  Really, the question for your Honours is effectively the same one.  Although, your Honours, it’s an appeal and an error has to be identified, if your Honours form the view that actually, on all of the material ‑

Then at the top of 22 there is an exchange that is difficult to understand in the context.  Perhaps I will skip over, about line 5:

I’m minded to find an error and, if no error is discernible, to say, “Well, sorry.”

Then Minister’s counsel:

Well, with respect, your Honour, given that the question is a legal one of whether the tribunal acted in a Wednesbury unreasonableness way or a legally unreasonable way, it’s as much a matter for your Honours to answer that question as it was for the primary judge –

and there is then the passage that the Full Court quoted I think in 39.  It is not necessary for your Honours to say that the primary judge made a legal error.  And then about line 16 the court:

But it must have done something wrong.

Line 20:

I’m asking you to crystallise so I can make a note of it ‑

And then about line 36:

I’m asking you to crystallise the proposition you say was wrong, if I can put it that way.

So, it is true that the Minister’s counsel did identify particular errors but I think it is fair to say that he was provoked, or at least aided and abetted in that respect, to take that approach to the Federal Circuit Court judge’s reasons.

NETTLE J:   Were particulars given under the general ground of unreasonableness?  Is it possible indicators of the way in which she got to the unreasonable conclusion?

MR WILLIAMS:   Indeed, in response to very specific questions from the court to identify particular ways in which that error could be seen to have come about.  If one goes then briefly to 37 of the reasons of the Full Court, one sees the question posed which our friends put as the correct question.  We submit, with respect, it is not the correct question.  It is the wrong focus:

The appeal turns on the question –

this is page 162, paragraph 37:

The appeal turns on the question whether the primary judge correctly understood and applied in the particular circumstances of this case the principles concerning judicial review –

So that is, in a sense, to pick up your Honour Justice Gordon’s earlier analysis, that is the first stage, that is if you are thinking about it in Avon Downs terms, was there some identifiable error of principle, and there is still the second question to come which is even if there are no reasons, was it wrong.  That, we say, is the beginning of the Full Court’s error, with respect.  It is carried through, in particular, in 45 where, in the passages quoted from about line 20, first of all, there is ‑ ‑ ‑

GORDON J:   It really starts at 43, I think, it is because having set out the principles they, in effect, set out those three observations which they placed great weight on and the first is need to:

establish an appealable error on the part of the primary judge –

which, I assume, is back to the passage you took us to in 37.

MR WILLIAMS:   Yes, and then carried through “evaluative judgment” in 44, and then in 45 the quote from Storie v Storie going directly to the question of appeal from a discretionary judgment.  And then significantly we would say from about line 36 the reference to Charles Osenton & Co:

“The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge.  In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion . . . in a different way” ‑ as well as the passage relating to giving no sufficient weight –

So, this is the – it is not Warren v Coombes that is set out, it is this passage from Lovell v Lovell and that, we say, combined with the references that follow that show clearly the Court’s approach looking for appealable error shows that the Court did itself fall into error.

In respect of the question of whether the letter can be shown to have been served, we say that was a question to be raised by notice of contention, either in the Full Court or here.  It has not been so raised.  But, in any event, appeal book 98 is enough to show quite clearly, we would say, that the letter was shown and dispatched.  Unless there are matters with which I can assist your Honours, those are our submissions.

KIEFEL CJ:   Yes, thank you, Mr Williams.  The Court reserves its decision in this matter and adjourns to 9.45 am tomorrow for pronouncement of orders and otherwise to 10.15 am.

AT 2.59 PM THE MATTER WAS ADJOURNED