Minister for Immigration and Citizenship v SZJSS & Ors

[2010] HCATrans 133

[2010] HCATrans 133

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S15 of 2010

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Applicant

and

SZJSS

First Respondent

SZLFG

Second Respondent

REFUGEE REVIEW TRIBUNAL

Third Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 28 MAY 2010, AT 2.10 PM

Copyright in the High Court of Australia

MR G.T. JOHNSON:   Your Honours, I appear for the applicant.  (instructed by DLA Phillips Fox Lawyers)

MR J.R. YOUNG:  May it please, your Honours, I appear for the respondents in this matter.  (instructed by Simon Diab & Associates)

HAYNE J:   For the first and second, I think, and there is a submitting appearance for the third.  Yes, Mr Johnson.

MR JOHNSON:   Thank you, your Honours.  Your Honours, firstly could I just note I am a couple of minutes late and I do hope that has not inconvenienced your Honours. 

HAYNE J:   Thank you.

MR JOHNSON:   Firstly, your Honours, this was a matter where the application for special leave in this Court was filed the day after sealed orders became available, but there is a need in this matter for an order under High Court Rule 41.02.2 that compliance with the 28‑day time limit in 42.02.1 be dispensed with.

HAYNE J:   What is the attitude of the respondents to the application?

MR YOUNG:   There is no objection to it, your Honour.

HAYNE J:   Yes, well if you go to the merits of the matter, Mr Johnson.

MR JOHNSON:   Thank you, your Honour.  Your Honours, the special leave questions sought to be raised in this matter are ones which, in my respectful submission, are not affected by the decision of the Court this week in SZMDS. 

HAYNE J:   They may be affected by it.  The question is are they resolved by it, perhaps, Mr Johnson?

MR JOHNSON:   That might be more accurate.  Let me put it this way, your Honours.  My friend would be placing some reliance, I understand, upon SZMDS, but the applicant’s submission to your Honours is that SZMDS says nothing about the particular points of principle that have been identified in the special leave application as deserving of special leave. 

I summarise those in particular at the beginning of the applicant’s summary of argument.  The first is the distinction that exists on authorities, particularly in the Federal Court, between, on the one hand, a relevant consideration in the Peko‑Wallsend sense - that is an integer that must be considered or a claim that must be considered such as was the case in Dranichnikov - and, on the other hand, mere evidence.  That is one point of principle.

The other point of principle which is intertwined with it in this particular case is whether the failure to give proper, genuine and realistic consideration to evidence, evidence which is not itself a relevant consideration in the Peko‑Wallsend sense, or a separate head of protection, a separate claim in the sense discussed in Dranichnikov is itself a jurisdictional error and just by way of further explanation of that second point we say that what happened here was that his Honour Justice Rares, with respect, ultimately disagreed strongly with the weight that was given to certain evidence by the Tribunal, found the Tribunal not to be entitled to treat particular evidence as it did, namely the various headmaster’s letters and the letter from the principal that has been referred to in the submissions and was also critical of the Tribunal’s use of the language at one point, “baseless tactic” to which I will come.

HAYNE J:   This first limb of your argument focuses, does it not, on the process that we see going from paragraph 40, page 93 particularly through paragraph 42 and its first sentence, into paragraph 43 on page 94?  Is that not the chain of steps which you say is flawed?

MR JOHNSON:   Yes, broadly I would adopt that, your Honour.  If I could perhaps just add a little by way of detail, more for the sake, I think, of caution or completion than anything.  With respect to his Honour’s reliance upon the rubric failure to give “proper, genuine and reasonable consideration” that features prominently as the basis for his Honour’s decision in paragraphs 42, 44, 46 and 55.  With respect to his criticism of “baseless tactic”, that occurs in paragraphs 49 and 58. 

The essential complaint, your Honours, is that whereas his Honour might have disagreed with the way the Tribunal treated this particular evidence or treated a particular answer given by the applicant when asked, in effect, why he could not live in Kathmandu safely like his brother, his Honour’s difficulties properly analysed do not amount to jurisdictional error. 

However useful the expression “failure to give proper, genuine and realistic consideration” might be, in some cases where, for example, the court considers that some statutory integer has not really been considered at all - or to go back to perhaps to the root of the matter the first time, a judgment – should I say that the first time, I think, the expression was used was a judgment of Justice Gummow in the Federal Court in…..where the real complaint ultimately was an application of policy without regard to the merits of the particular case. 

The language might in some cases be useful, but it is not a stand‑alone head of jurisdictional error and, in any event, it certainly does not catch what the Minister is complaining about here, which is mere disagreement by the trial judge, by the court below with the Tribunal’s statement that it gave no weight to the letters from the headmaster and the single letter from the Polaris College in circumstances where the Tribunal expressly referred to that material and discussed it and gave reasons for not accepting the truth of its content.

HAYNE J:   Now, as to the “baseless tactic” comment do I understand the proposition that you seek to advance there as either being or at least including that observing the use of this language in reasons for decision does not – or at least does not readily – lead to a conclusion of prejudgment before, that is formation of an opinion adverse before the point of delivery of reasons?

MR JOHNSON:   Yes, and your Honour, with respect, is a step ahead of me.  When one gets to what Justice Rares said about reasonable apprehension of bias, although he states that in his judgment as being a separate jurisdictional error the two things that he particularises in reaching that conclusion come back to his view about the entitlement of the Tribunal to use the “no weight” formulation in relation to the letters and the Tribunal’s use of the expression “baseless tactic”.

HAYNE J:   It may be, Mr Johnson, that at this point we would be assisted by hearing from Mr Young.

MR JOHNSON:   Thank you, your Honours.

HAYNE J:   Yes, Mr Young.

MR YOUNG:   Your Honour, the basic propositions of the applicant in relation to this application are that the decision of his Honour Justice Rares was inconsistent with an orthodox view of judicial review and that it involved merits review.  Now, in my submission, neither submission is made out, nor is it a fair analysis of what his Honour did.  His Honour was, in my submission, at pains to avoid descent into merits review and what his Honour did was to make a series of well‑reasoned and proper findings which are destructive of the integrity of the Tribunal decision.

The relevance of the recent decision of the Court in SZMDS is to differentiate between what might be described as purely illogical decisions and another category of case, which may warrant other descriptions, such as capricious, clearly unjust, arbitrary, not bona fide.  In this case his Honour made a very careful decision that this decision was one which was affected by apprehended bias and his Honour was very strongly of that view.  When one looks at the way in which it is expressed at page 100 at about line 22, paragraph 61 of his Honour’s reasons, this did not depend upon simply a bare getting over the line in respect of the two “might” test. 

His Honour was of the view that a fair‑minded lay observer would find the use of the language “baseless tactic” disturbing in the context of the Tribunal’s reasoning, coupled with the third member using the “no weight” formulation to shut out powerful, corroborative, independent evidence which had been verified through the Australian Embassy in Nepal.  A fair‑minded lay observer would regard that as being apparent bias.

BELL J:   Mr Young, I think the position is that there was no recording of the proceedings before the third Tribunal member and no transcript of the proceedings.  So his Honour’s conclusion as to the apprehension of bias was one based upon the expression of the Tribunal member’s conclusions.

MR YOUNG:   Quite so, but when one looks at the Tribunal’s own decision, for example, at paragraphs 32 and 33 of the Tribunal decision at application book page 5, the Tribunal noted in paragraph 31 that the applicant had been claiming protection on the basis of political opinion.  At paragraph 32 it described that he had claimed to be a school teacher or former school teacher, that as a school teacher or former school teacher he was singled out for harassment in ways and to degrees that other people, such as his own brothers, had not been.  That was his claim.  That was his base claim as it was understood by the Tribunal. 

Then the Tribunal found, however reluctantly, however grudgingly, that he and his wife had been persecuted before they went to Kathmandu.  The critical question was whether there was a real chance that he would be persecuted if he lived in Kathmandu.  The Tribunal asked him why he could not live out in the open like his brother.  Now, his answer was, “Because I am a school teacher”, his very base claim.  Yet the Tribunal described that as a baseless tactic designed to avoid a potentially adverse impression.

Now, in my submission, that was strong evidence of a reasonable apprehension of bias.  What he was doing was firstly he was answering a question from the Tribunal so that he was obliged to give an answer.  Secondly, he was answering that in the very way that was consistent with the claim that he had always advanced.  The Tribunal used that to say because of that, he is not a person who ought to be believed.  It was then used in the consideration of his reliability as a witness.

The view that his Honour came to in the way at page 26 that the Tribunal used this expression “gives no weight to the content” – the reasons put forward by the Tribunal in respect of those matters were ones that no rational person could come to.  The Tribunal itself noted that what he was saying was that, “I am suspected of having spied on the Maoists and co‑operated with the local authorities, therefore, they will follow me outside of my local area, even in Kathmandu”.  He puts forward letters, which even the Tribunal accepts support that view.

Why does the Tribunal not accept them?  One matter is because there is some evidence, which the Tribunal regards as being problematic as to his membership of Amnesty International, which happened in 2005.  That could have no rational bearing on the question of whether he was being spied upon by the local authorities. 

The second matter put forward was one which satisfied his Honour that the Tribunal simply was not conscientiously doing its job because these letters had been verified by the Australian authorities in Nepal.  He had given, according to the Tribunal, inconsistent evidence about whether there had been some involvement of the brother in obtaining them.

Bearing in mind that through no fault of his own he was giving evidence to a third Tribunal it would hardly be surprising on peripheral matters that he might give some inconsistent evidence, but because he was giving some – in the Tribunal’s view – inconsistent evidence, the Tribunal said that because he was inconsistent as to the provenance of the letter, this goes directly to the question - of the letter - of its bona fides, that is the bona fides of the letter.

So on the one hand the Tribunal says because this has been verified by the Australian authorities in Nepal we will accept it is a genuine letter.  On the other hand, at paragraph 144, they say, “Well, he has given this inconsistent evidence over time about” – and it seems to be the first Tribunal and the third Tribunal - “as to whether his brother was involved”, that goes to the question of the bona fides of the letter.

Now, that is so irrational that the Tribunal was not carrying out its statutory function.  If there was this importance in relation to – such an importance in relation to the evidence about the provenance of the letter his Honour also accepted that what the Tribunal had to do, consistently with the decision of this Court in NAIS and the interpretation of that decision in the Federal Court by his Honour Justice Weinberg in SZIIF, was factor in the fact that there may be some inconsistency in relation to these sorts of peripheral matters.

It was not entitled to simply say that because of this inconsistency between Tribunal one and Tribunal three that the letters themselves were to be given no weight.  What really the application, in my submission, concerns is not important issues of principle at all, but rather whether there is some magic in certain words.  Is there magic in words such as “no weight”?

Now, the Tribunal uses the expression “no weight” on at least a dozen occasions in the course of the decision.  It even uses the expression “it gives no weight to a claim”. Of course, if that meant that it did not consider a claim then that could not stand, even on the analysis submitted by the applicant.  So the applicant submits that when it says “no weight” in relation to a claim what it really means is that it rejects the evidence in relation to a claim.

What his Honour did was to analyse the real substance of what the Tribunal was doing, not simply issues about no weight.  His Honour and my friend and the submissions advanced on behalf of the Minister really do not raise any particular issue of principle in relation to this description “proper, genuine and realistic consideration” because his Honour notes on a number of occasions in the judgment, for example, at paragraph 39 at page 93 his Honour there talks about “The assessment of credibility” in traditional terms in relation to merits review.

At paragraph 44 his Honour notes statements by the New South Wales Court of Appeal as to the dangers of expressions such as “proper, genuine and realistic consideration” if they are used to allow the court to simply review on the merits.  At paragraph 49 of his Honour’s reasons his Honour says at the top of page 97:

an imperative that judicial review proceedings do not descend into fact finding on the merits.  I am conscious of the bounds which are permitted in that regard.  The minister forcefully put in submissions that the third tribunal’s findings were open to it.  I reject that argument.

Now this, in my submission, is not simply a case such as SZMDS where the Federal Court took a view that there was a plausible explanation in relation to a particular matter and that that was not the only explanation, so that it could not be said that no other rational conclusion was open.

This is about the process by which the Tribunal came to its decision.  The process by which the Tribunal came to the decision was one which was unfair, which was capricious, which denied the respondent here, the applicant at the Tribunal – the two applicants – the review to which they were entitled because on the critical matter, bearing in mind that the Tribunal accepted that they had been persecuted, they were putting forward evidence in relation to that critical matter.

The Tribunal went out of its way to find a reason to reject that and the fundamental underpinning of his Honour’s decision is that that was not a “proper, genuine and realistic consideration” of the case being advanced by the respondents on that critical issue.  There was no blurring of any distinction between what are the limits of judicial review and merits review. 

His Honour looked at – in terms of the expression, “proper, genuine and realistic consideration”.  My friend is correct that it does go back to the 1980s in relation to certain matters, but the more recent genesis of it is, of course, the decision of the Court in NAIS where it is referred to, both in the decision of the minority, that is by Justice Gummow and also in the joint part of the majority decisions of Justices Callinan and Heydon.  The decision of Justices Callinan and Heydon is that referred to by his Honour at paragraph 57 at application book page 99. 

Paragraph 172 in the decision in NAIS follows immediately after their Honours had noted that section 425 does give rise to – as had been conceded by counsel for the Minister in NAIS – to this requirement of “proper, genuine and realistic consideration”.  What their Honours were doing was looking at species of unfairness which can arise because fundamentally the relevant statutory provisions – section 414 and section 425 being the most relevant – require a fair consideration of the case put by the applicant at the Tribunal.

Their Honours looked at circumstances in which there could be disablement by a tribunal from properly carrying out that statutory duty.  One of the matters which they considered was, in fact, this very issue of permitting bias to affect its mind.  The strength of his Honour’s finding in relation to bias is, in my submission, overwhelming because the Tribunal was making a finding that by answering a particular question from the Tribunal about, “How are you different to your brother?”  He says, “Because I am a school teacher” that he is in effect playing with the Tribunal, that he is engaging in some sort of ruse, in some sort of tactic.

The construction that is put forward by the Minister in relation to this particular matter that the expression “baseless tactic” means no more than that the Tribunal did not accept that the respondent was at risk in Kathmandu as a teacher is just not, in my submission, a reasonable interpretation of that phrase.

The two words go together.  It was not simply saying, “We have considered his claim to be different because he is a school teacher.”  It was saying that in putting that forward in answer to the Tribunal’s question that he was attempting to deceive the Tribunal by advancing the very case which the Tribunal had noted right at the outset was his case.

HAYNE J:   Yes, well now I see the time, Mr Young.

MR YOUNG:   May it please your Honours.

HAYNE J:   Mr Johnson, two matters.  If there were to be a grant of special leave what do you say as to conditions as to costs?  Why should we not impose on the Minister a condition that there be no disturbance of the costs orders below and a further condition that the Minister pay the costs of the respondent to the appeal, in any event?

MR JOHNSON:   The applicant accepts those conditions, your Honours, and, indeed, in the application for special leave we have suggested that as an order.

HAYNE J:   The second thing is about your notice of appeal at pages 142 to 143.  Forgive me if I say so, the draft is perhaps rather more discursive than may be either necessary or desirable.  It would seem to me that the points which you seek to agitate in the Court are, without seeking to bind you to the particular wording, captured most conveniently in grounds (d), (f) and (h).  Now, I may be mistaken in that.  I do not expect you to do the drafting on your feet, but it does seem to me that the notice of appeal would repay further attention, further attention by refinement and contraction, rather than by amplification.

MR JOHNSON:   I understand, your Honours.

HAYNE J:   And that it seemed to me at least, and I speak only for myself, that the essence of the points you were making seemed to be captured by (d), (f) and (h). 

MR JOHNSON:   We will certainly take that on board, your Honour.  

HAYNE J:   Yes.  There will be a grant of leave in this matter on the conditions earlier identified.  Do I take it that counsel would agree it is a one‑day case and no more than a one‑day case?

MR JOHNSON:   Yes, your Honours.

MR YOUNG:   Yes, your Honours.

HAYNE J:   Thank you.  There will be a grant of leave on those terms.

The Court will adjourn to permit the establishment of the video link to Canberra.

AT 2.43 PM THE MATTER WAS CONCLUDED