Minister for Immigration and Citizenship v SZMDS

[2009] HCATrans 301

[2009] HCATrans 301

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S193 of 2009

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Applicant

and

SZMDS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

GUMMOW ACJ
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 10 NOVEMBER 2009, AT 10.22 AM

Copyright in the High Court of Australia

MR S.J. GAGELER, SC:   If the Court pleases, I appear with MR G.T. JOHNSON for the appellant.  (instructed by DLA Phillips Fox Lawyers)

MR T.A. GAME, SC:   If the Court pleases, I appear for the first respondent with MS T. BAW.  (instructed by Sarom Solicitors)

GUMMOW ACJ:   There is a submitting appearance for the Tribunal, is that right?

MR GAGELER:   That is correct, your Honour.

GUMMOW ACJ:   Yes, Mr Solicitor.

MR GAGELER:   Your Honours, the appeal raises a question of fact and a question of principle.  The question of fact is whether Justice Moore was correct in finding, at page 253 of the appeal book, line 60, that the Tribunal’s conclusion that the applicant was not a homosexual was based on an illogical process of reasoning.  The question of principle, which has been festering in the Federal Court since the decision of this Court in S20 in October of 2003, is whether an illogical process of reasoning to a conclusion of fact is itself without more a jurisdictional error.

GUMMOW ACJ:   The question depends, does it not, on the particular statutory regime?

MR GAGELER:   On the particular statutory regime and I will come to that in a moment.  Can I deal with the question of fact?

CRENNAN J:   Which is the correct reprint for us, by the way?

MR GAGELER:   Reprint No 11, your Honours.

CRENNAN J:   Thank you.

MR GAGELER:   Can I deal with the question of fact first extremely briefly and then go to the question of law.  When I say “extremely briefly”, your Honours will have seen that the question of fact is addressed in excruciating detail in the written submissions of both sides, and I want to do no more orally than to stand back just a little from that detail and to put it in perspective.  The reasoning of the Tribunal that Justice Moore found to be squarely illogical fits into just four paragraphs and appears at page 175 of the appeal book at line 50 through to line 35 on the next page.

If one resists the temptation to a zealous line‑by‑line scrutiny of what appears in those four paragraphs, if one recognises that the Tribunal is setting out its reasons for reaching its subjective decision of non‑satisfaction, and if one recognises that the process of reasoning is not one of deductive logic, but of practical inference then, in our respectful submission, what the Tribunal is saying is something with which one might agree or disagree, but it is perfectly intelligible.  What the Tribunal is saying, to paraphrase it, to put it in the second person and to direct it to the applicant, is something like this:  “I have heard everything you tell me, and I just do not believe it”.

GUMMOW ACJ:   Well, it does not say that.

MR GAGELER:   It pretty much says that, your Honour.  What it is saying in substance is “You tell me you are a homosexual, you tell me that you fear that if you return to Pakistan there is a real risk that you will face persecution there, and that your family will discover that you are a homosexual and that they will feel shame, yet immediately before you came to Australia you went back to Pakistan to visit your family for three weeks, and a couple of years ago when you had the opportunity to claim asylum in the United Kingdom on the basis of the same fear you did not take it.  Now, I find that your action in going back to Pakistan and your inaction in not claiming asylum when you were in the United Kingdom is inconsistent with you genuinely holding the fear that you claim to hold.  When I am saying inconsistent I am not saying that they make the fact of you holding that fear impossible.  What I am saying is that in my judgment they make the fact of you holding that fear improbable, and it is my job to determine the facts as best I can, based on my assessment of the probabilities”.

So if one wanted to translate this inductive process of reasoning into a deductive process of reasoning, and it is always possible to do that, the deductive process of reasoning starts with the Tribunal making the generalisation that a person who has a genuine fear of persecution in a country of origin is unlikely to choose to go back to that country of origin, albeit briefly and that such a person is likely to seek asylum at the earliest available opportunity and not wait until after the person has a falling out with a particular individual in a third country.

Having heard the explanation of the applicant, the Tribunal was just not persuaded by anything the applicant said to draw what the Tribunal sought to be an improbable inference and, in our submission, that is, standing back from the detail, the long and the short of the reasoning.  There is nothing illogical about it.  None of the critical steps in the reasoning, certainly none of the generalisations upon which the Tribunal implicitly acted, is dictated by logic one way or the other.

So in our respectful submission, this is simply not a case where it can be said, where it should have been said by his Honour, that the process of reasoning adopted by the Tribunal ‑ ‑ ‑

GUMMOW ACJ:   Was there oral evidence by the applicant touching these matters for the reason for going back to Pakistan?

MR GAGELER:   Yes, relevantly the oral evidence appears at page 222, line 50.

CRENNAN J:   Was this given through an interpreter?

MR GAGELER:   Yes, your Honour will see that.  It is really the critical part of the oral evidence.

CRENNAN J:   What page is it again?

MR GAGELER:   Page 222, line 50, through to the top of page 225.  So that is the raw material, and the evidence in that respect is summarised by the Tribunal at page 173, line 20 to line 60.  Your Honours, as I said, I do not want to go back to the details ‑ ‑ ‑

GUMMOW ACJ:   Was it ever put to him that he was not telling the truth in saying what he said?

MR GAGELER:   That is the thrust of the entire questioning.  This is not a procedural fairness case.  That is the thrust of the questioning.

GUMMOW ACJ:   I realise that.  Nevertheless, I want to know.

MR GAGELER:   The answer is yes.  I cannot pick out language that squarely says “You’re not telling the truth”, but if one goes to page 224, line 30, for example, the conduct is being questioned quite closely, or lack of conduct.

KIEFEL J:   The unexpressed premise in the reasons as they appear in the Tribunal’s decision is that if he returned to Pakistan he would be at risk because his practice of homosexuality would or might be found out?

MR GAGELER:   Yes.  His claim being that if he went back to Pakistan there is a risk that his homosexuality might be found out.

KIEFEL J:   So the immediate question before one determines the quality of any error in a legal sense is what basis there was for the inference that he might have been found out?  You say it resides in what was said here at pages 223 to 225?

MR GAGELER:   It resides in the generalisation that if you genuinely fear being found out in Pakistan you are unlikely to go back to Pakistan, even briefly, where you might be found out.  That implicitly carries with it the possibility of being found out in Pakistan.

KIEFEL J:   The passages that you have taken us to from appeal book 222 onwards appear to proceed from an assumption that he has that fear of his family finding out.

MR GAGELER:   Definitely.  That was part of his claim.

KIEFEL J:   So you go back to the claim itself.

MR GAGELER:   Repeatedly part of his claim.  One sees that mentioned by the Tribunal at page 175, about line 55, that he would “bring shame upon his family”.  It was centrally part of his claim that he would bring shame on his family and that is spelt out.  I cannot take you to the passage in the transcript but the Tribunal’s recitation of that central claim you see at page 170, line 10.  Hardly a claim to persecution but, nevertheless, part of what his story was.

GUMMOW ACJ:   At page 223, line 20.

MR GAGELER:   Yes.  I think that may actually appear a little earlier on in more detail but I just cannot take you to that easily.  So the bringing shame on the family was squarely part of his story and yet here he is going back to visit his family for three weeks.  He explains that a little in two places ‑ ‑ ‑

CRENNAN J:   I think he explains he was visiting his children because he had determined not to return and did not know when he would see them again.

MR GAGELER:   Effectively to say goodbye, “finalise my relations with my wife” as well.  He says that at page 156.  This is obviously very difficult for the Tribunal to accept that a person with this claimed fear would do what he did and the statement at page 156 is his answer to a letter which had been written to him by the Tribunal and not reproduced in the appeal book but part of the record below, his answer at about line 30 through to line 40 to that question of, “Well, why did you go back to Pakistan if you had this fear?”

GUMMOW ACJ:   There is a step I do not quite understand in the Tribunal’s reasoning.  His family was quite likely to find out by means of communication not necessitating his physical presence in Pakistan.  There are things like letters and telephones.

MR GAGELER:   Yes.

GUMMOW ACJ:   He was always under this possibility wherever he was in the world, surely, for anyone who knew, means of contacting his family?

MR GAGELER:   One would assume that to be so, your Honour, yes.  It hardly makes the Tribunal’s reasoning illogical, however.

GUMMOW ACJ:   Yes.

MR GAGELER:   So, your Honours, that is really what I wanted to say on the facts.  No illogicality at all.  There are certain generalisations.

GUMMOW ACJ:   No illogicality?

MR GAGELER:   No illogicality.  There are inferences which the Tribunal refused to draw in the light of the conduct which it observed which may or may not have been drawn by someone else, but that really has nothing to do ‑ ‑ ‑

GUMMOW ACJ:   Was there material before the Tribunal from other sources corroborative of this gentleman’s personal history and relationships?

MR GAGELER:   I think the answer to that is, apart from evidence of a doctor which was based on what the applicant had told the doctor, he told the doctor the same story, no.

CRENNAN J:   Page 153.

MR GAGELER:   Yes, that is right.  That is the doctor’s letter.  I think the Tribunal had the applicant’s story, the doctor’s letter again telling the applicant’s story and, of course, the travel records which it focused on quite a lot.  His Honour focused on half a page, effectively, of the Tribunal’s reasoning at the top of page 176.  The Tribunal went on, at the bottom of page 176, to disbelieve other aspects of the applicant’s story, particularly what he had been doing in Australia, his claimed homosexual activities in Australia.  It is somewhat artificial to take the top half of the page, of course, ignoring the bottom half of the page when on recognises that what the Tribunal is ultimately doing is determining whether to believe the story in its totality, and the Tribunal rejected the story in its totality having seen and heard the applicant.

CRENNAN J:   Justice Moore seems to focus on the fact that from his point of view the explanations about the return to Pakistan and for not seeking asylum in Britain were plausible explanations.

MR GAGELER:   Yes, but that seems to be where he starts and really where he ends. 

CRENNAN J:   It is from that that he gets to illogicality and irrationality.

MR GAGELER:   Indeed.  All he is saying “plausible” means I take it capable of being believed.  The Tribunal was saying, “I do not believe it.”  “Improbable”, says the Tribunal, but “plausible” says his Honour.  It is really not logic, your Honours.  It is the drawing of a practical inference - nothing more, nothing less.

Your Honours, can I go on to the question of principle and can I do that because it is really one that will not go away.  Your Honours will have seen from our written submissions that there is a range of views that has emerged in the Full Court since S20 as to whether an illogical process of reasoning in the course of reaching a conclusion of fact amounts to a jurisdictional error.

In our respectful submission that question of principle is usefully addressed in the present case, whether or not your Honours are inclined to accept our submission on the facts that the process of reasoning adopted by the Tribunal here does not show any illogicality.  On that question of principle, to go immediately, albeit briefly to the Act, the critical provisions your Honours are extremely familiar with, section 65, section 414, section 415 and section 430.  We accept that ‑ ‑ ‑

GUMMOW ACJ:   Just a minute, 414, 415 ‑ ‑ ‑

MR GAGELER:   And 415, of course, takes you back to 65 and the reference to satisfaction.

GUMMOW ACJ:   And 430.

MR GAGELER:   And 430 a procedural obligation ‑ ‑ ‑

GUMMOW ACJ:   Yes, is 430 repeated in the Migration Review Tribunal provisions?

MR GAGELER:   Yes.

GUMMOW ACJ:   What is that section?

MR GAGELER:   I will give you that in a moment, your Honour.  I will turn it up in a moment, but it is the mirror image of those provisions.

GUMMOW ACJ:   And in any other provisions?  There are only two possibilities, are there not, the MRT and the RRT?

MR GAGELER:   In this scheme, yes.  But your Honour is familiar with similar provisions existing in the AAT Act, for example ‑ ‑ ‑

GUMMOW ACJ:   There is nothing in the section 501 provisions, is there?

MR GAGELER:   No, not the exact equivalent.

GUMMOW ACJ:   Not following 430?

MR GAGELER:   Not following 430, no.  Section 368, your Honour, is the other Tribunal and let me say immediately that we accept that reflected in the procedural requirement of section 430(1)(b) that the Tribunal must set out the reasons for the decision is an underlying implied jurisdictional requirement that the decision of the Tribunal be made for reasons, that is to say, by the application of the faculty of reason and that it must, in that sense, be reasonable.  Now, the positive content of that is something I will turn to in just a moment, but ‑ ‑ ‑

GUMMOW ACJ:   Just stopping there for a minute, it is the presence of 430(1)(b) which throws a particular light that was not present in the taxation legislation considered in Avons Downs, for example, or in the Melbourne Stevedoring Case in the industrial legislation, I think.

MR GAGELER:   Yes, your Honour is right about both of those things.  It, however – and I will ‑ ‑ ‑

GUMMOW ACJ:   So when those cases are talking about coming to a decision that looks peculiar, to use a colloquialism, those decisions are not talking in that way against a specific jurisdictional requirement that reasons be set out.

MR GAGELER:   Your Honour is exactly right.

GUMMOW ACJ:   That is why I just wonder if there is any overarching – to use that dreadful word – question of public law in this case.  It really seems to have come down to section 430.

MR GAGELER:   When I said your Honour is absolutely right, may I withdraw that and say your Honour is right in a qualified way?  Your Honour referred to a jurisdictional requirement in section 430.  It is not.  It is not a jurisdictional requirement so held by Yusuf.

GUMMOW ACJ:   It says “must”, “the Tribunal must”.

MR GAGELER:   I am sorry.

CRENNAN J:   So consider if it failed to do so.

MR GAGELER:   It is a procedural requirement.

GUMMOW ACJ:   Well, procedure and substance is one of the most slippery distinctions in the legal system, Mr Solicitor, and to translate it into this realm might not be a happy experience.

MR GAGELER:   Yes.  I had perhaps glossed over nuances in Yusuf, but my understanding of the effect of that decision was that it is not a jurisdictional requirement.  However, the quality of the reasoning disclosed by a statement of reasons may disclose other error.  That is something I will come to in a moment.

GUMMOW ACJ:   Well, if the Tribunal does not prepare a written statement, is that an obligation of imperfect character?  That would be odd, would it not?

MR GAGELER:   It would.  If the Tribunal were not to prepare a statement at all, then that may – your Honour, I would have to reread Yusuf.  I am hesitant to give ‑ ‑ ‑

CRENNAN J:   It would be a failure to exercise jurisdiction.

MR GAGELER:   Well, the jurisdiction is the jurisdiction to make the decision; by definition the decision is made.  The question is whether a failure to produce a statement of reasons at all will result in the invalidity of the decision.  I would say, yes, but in a slightly hesitant way, your Honour.

I will come to that, but your Honour is right, a difference between the present case and the Melbourne Stevedoring, Avon Downs type of case is that there was no obligation, procedure or otherwise on the part of the decision‑makers in those cases to produce a statement of the reasons for their decision ‑ ‑ ‑

GUMMOW ACJ:   Furthermore, this sort of provision is a legislative reaction, I think, perhaps to the earlier situation, and other legislation.

MR GAGELER:   We would put it differently, your Honour.  We would say, and I think consistently, with the use to which I will come in a moment, that the scheme of this Act, and 430 in particular, is one which takes its place within a very well‑understood common law setting that derives from Melbourne Stevedoring, Avon Downs, through to Bond’s Case, which had only just been decided before the 1992 Act that introduced this scheme, and all of this takes its statutory place within a well‑understood setting that mere illogicality in coming to a conclusion of fact does not amount to a jurisdictional error, and that the scheme of the Act ought be read in that common law context.

It could have been structured differently.  For example, it could have been structured - as a letter we received from the Court yesterday intimates it could have been structured to require the decision of the Minister and the Tribunal on review, one way or the other, to be based on reasonable grounds, but it was not done that way.  It was couched in terms of satisfaction and satisfaction had, at common law, some quite well‑recognised incidents, one of them not being that the satisfaction be reached by a process of reasoning that was logical.

GUMMOW ACJ:   So one has to read 430 as setting out the reasons for the decision, namely that the Tribunal is or is not satisfied within the meaning of 65?

MR GAGELER:   That is correct, yes.

GUMMOW ACJ:   The Tribunal is sitting in the place of the Minister.

MR GAGELER:   Exactly, and those reasons may or may not reveal error of a jurisdictional nature.  The question is whether mere illogicality, as disclosed by those reasons, in reaching a conclusion of fact is such an error.

CRENNAN J:   As distinct from extreme illogicality, is that what mere illogicality means?

MR GAGELER:   No, I find it hard to think of illogicality as a question of degree, your Honours.

CRENNAN J:   Although your written submissions seem to suggest that ‑ ‑ ‑

MR GAGELER:   I know, I know.

CRENNAN J:   You are not pressing for the situation there could never be a situation where illogicality in the reasoning processes may not give rise to jurisdictional error.

MR GAGELER:   True illogicality, your Honour, that is, an error of deductive reasoning is an extremely rare thing.  If one were to find a pure error of deductive reasoning in a process of getting to a conclusion of fact, in our respectful submission, that would not, per se, be a jurisdictional error.  One has to accept if you could have a category of jurisdictional error, then there will be some errors that are not jurisdictional.

CRENNAN J:   You said there is a range of views in the Federal Courts since S20.  How is this illogicality, irrationality ground of judicial review - how does it line up with Wednesbury unreasonableness?

CRENNAN J:   Is there overlap?  Are there distinctions to be made?

MR GAGELER:   The relationship has never been fully explored, nor has the status of Wednesbury in this Court been ultimately determined, but Wednesbury on one view, Wednesbury itself, is a case which deals only with questions of the exercise of discretion.

GUMMOW ACJ:   We have no obligation to give reasons actually.  You either got your cinema licence or you did not.  There were some conditions attached to it but no reasons.

MR GAGELER:   Yes, that is right.  The earlier articulations of Wednesbury, if I can put it that way, the pre‑ Wednesbury articulations of Wednesbury, derive from the case of Sharp v Wakefield in the House of Lords, I think it was the 1890s.  One can go back well before that, but Sharp v Wakefield is often seen as the font of the doctrine.

CRENNAN J:   Fons et origo.

MR GAGELER:   Certainly in the cases between Sharp v Wakefield and Wednesbury in the House of Lords in particular, and there were two or three of them, the nature of the unreasonableness was effectively equated with bad faith and, in our respectful submission, the proper understanding of Wednesbury itself is that the nature of the unreasonableness being spoken of is in truth a failure to attend to the statutory task in good faith.  That is a point that is, in effect, made in Wade and Forsyth.  Your Honours in the case of SZFDE v Minister for Immigration and Citizenship 232 CLR 189 at paragraph 13 quoted the 9th edition of Wade and Forsyth.

GUMMOW ACJ:   Is this on the list?

MR GAGELER:   I am suspecting not, your Honours.  It is certainly in our written submissions.  I am sorry if it is not on the list.  I have been taken down a path by your Honour’s question that I was not sure that I would be going down or I was not intending to go down.

GUMMOW ACJ:   That is why we are here.

MR GAGELER: In 232 CLR 189 at page 195 at paragraph 13 your Honours, in the context of dealing with the nature of good faith in public law, quoted the 9th edition of ‑ ‑ ‑

GUMMOW ACJ:   This was the fraud case, was it not?

MR GAGELER:   The fraud case, yes, that is right. 

GUMMOW ACJ:   The migration agent’s fraud.

MR GAGELER:   That is right.  Your Honours were dealing in an introductory way with the nature of good faith and your Honours pointed out that good faith in a public law context is a broader notion than simply one of honesty.  It involves an attendance in a real way to the statutory task.  Your Honours quoted the 9th edition of this book and again the book is not itself on any list, but the 10th edition, which is now out, makes the same point – we will provide your Honours with copies – but this makes the same point at page 352, harking back to the pre‑Wednesbury Wednesbury cases, particularly the case of Roberts v Hopwood where effectively the Wednesbury‑type unreasonableness was equated with a failure to exercise a power in good faith.

GUMMOW ACJ:   Yes.  The notion of power, it has equitable ideas involved with abuse of power which are not necessarily confined to cheating.

MR GAGELER:   That is right.  Your Honours, there are some later statements in the Federal Court, post‑S20 statements, that I wanted to take you to that expressed the same notion, but, essentially, when I had said that we accept that there is an implicit jurisdictional requirement for the Tribunal to proceed for reason, that is, to reach its decision for reason, it is that essential notion that is captured in that concept of reasonableness, in our respectful submission.  That is a partial answer to your Honour’s question.  Properly confined, what I am saying is entirely consistent with Wednesbury unreasonabless or Wednesbury reasonableness, putting it as a positive requirement, because Wednesbury reasonableness says nothing about the detailed process of the reasoning.

KIEFEL J:   So at a level of generality, you are saying that the test of reasonableness has regard to the quality of the decision assessed against the statutory task whereas illogicality is something which goes wrong in the process of reasoning towards the decision, but it is not the decision itself.

MR GAGELER:   Your Honour has put it the way I wish to put it, yes.

KIEFEL J:   If that is so, if we are going to settle a question of principle, do we not need to identify just what might amount to the illogicality here?  I know that your first position is that there is no illogicality in the approach taken to the Tribunal being satisfied, but if we are to approach the question of principle by reference to the facts of this case, how would you state the potential illogicality?  I suppose what you would do is adopt the respondent’s assessment or characterisation of the ‑ ‑ ‑

MR GAGELER:   Yes, or perhaps his Honour’s characterisation of it.

KIEFEL J:   Yes, perhaps that is the way to do it.  I just have a difficulty with proceeding without actually knowing what we are talking about when we say an “illogical process”.

MR GAGELER:   It is a little difficult for me to articulate that, your Honour, but his Honour, at page 252, paragraph 26, about line 50, appears to be proceeding on the basis of a generalisation without explanation as to how the generalisation would apply in the circumstances of the particular case.

KIEFEL J:   What it might suggest is that the Tribunal has drawn an inference that his family might come to know - or accept the possibility that his family might come to know of his homosexuality as identifying the danger to him in returning to Pakistan and if that is so, we might be talking about an unsupported assumption or inference.

MR GAGELER:   That is a possibility, your Honour.  It is not quite the way ‑ ‑ ‑

KIEFEL J:   It is not quite there.

MR GAGELER:   It is not the way his Honour quite put it.  He put it in terms of at least in the absence of an explanation as to how there was a risk of his homosexuality being found out.

KIEFEL J:   His Honour is really saying that there is no evidence for an assumption that people would find out.  He is saying why would the Tribunal assume that his homosexuality would be found out?  He could go back to Pakistan ‑ ‑ ‑

MR GAGELER:   Yes.  His Honour is not saying there is no evidence, your Honour.  His Honour is saying there is no finding.  He says that in the first sentence of ‑ ‑ ‑

KIEFEL J:   I just wonder how close it comes to a no evidence point if it is an unsupported assumption.

MR GAGELER:   The claim is that if he goes back on a long‑term basis there is a risk.

KIEFEL J:   How?  That is the question.

MR GAGELER:   That is his claim.  That is what he saying.  That is the way he is putting his case.

KIEFEL J:   He says he has a fear.  The Tribunal has taken it one step further, has it not, and said, “There is a risk.  There is a real risk, therefore you are in danger and you should not have gone back”.  It is one thing for a person to say, “I fear being discovered because I am living with this secret” and it is another thing for the Tribunal to say, “You were actually at real risk of being discovered, sufficient that you would not have gone back if you were acting rationally”.  It is a question of degree but I thought what his Honour was saying had taken it rather further.

MR GAGELER:   Yes.  I am not going back, I hope, too much into facts.  All I was attempting to do was to identify against – as a focal point for the legal submissions – the nature of the error of logic.

KIEFEL J:   I think you have to identify the facts to understand the nature of the potential error.

MR GAGELER:   What his Honour – if I can deal with this claim, then, your Honour.  The claim is, “If I go back to Pakistan there is a real risk – I fear a real risk of being found out by my family and others to be a homosexual, thereby bringing persecution and thereby bringing shame upon my family”.  That is what he is saying.  That is why he does not now want to go back to Pakistan.  Here he has just gone back to Pakistan for three weeks to make peace with his wife and to see his children.  That is what he says he has done.

CRENNAN J:   Is that the first time he went back to Pakistan since developing his ‑ ‑ ‑

MR GAGELER:   No, he had been back many times.

CRENNAN J:   But had he been back after he had commenced the homosexual relationship in the United Arab ‑ ‑ ‑

MR GAGELER:   Yes, he says that.

CRENNAN J:   It just was not clear to me that he went back many times in the period 2005 to 2007.  I understand he went back previously and to‑ed and fro‑ed between his place of work and Pakistan.

MR GAGELER:   Yes.  At the bottom of page 65, your Honour, this is his statement made as part of his application.  He says at about line 50, “During the period of October 2005 to July 2007 ‑ ‑ ‑

CRENNAN J:   Yes.  I see.  I have it, thank you.

MR GAGELER:   The Tribunal, while noting that, really focused on the last time that he went back to Pakistan which was for three weeks, immediately before he came to Australia.

So his Honour, criticising the Tribunal at page 252, is not saying that it would have been impossible for the Tribunal to find that on his own story there would have been some risk of being found out, even in a short time, but that the Tribunal made no finding.

HEYDON J:   This is a sort of no reasons point really.  It is not so much a no evidence point; it is a no reasons point.

MR GAGELER:   Yes, that is right, it is not a no evidence point, it is a no reasons point.  So he is not saying that the inference is unsupported by any material but rather saying it is not explained.  So if I was to put it as a generalisation, and the characterisation may or may not be correct, but I believe that what his Honour is saying is that there is here on the part of the Tribunal a failure to identify how the generalisation upon which it is acting applies in the circumstances of the particular case.  Even that is very difficult to couch in terms of an error or logic, in our respectful submission.

HEYDON J:   Your point is, really, there was no error of logic.  What there was was perhaps a selection by the Tribunal of some rather unconvincing major premises or even minor premises that there is no error in moving from step A to step B, but A is expressed rather unconvincingly; the idea that within three weeks something can happen or perhaps Justice Gummow’s idea that whether you go to Pakistan or not something will happen.  You make these points in your submission.  It is very common in the application of the law to the facts for triers of fact to pluck from their whole experience propositions about human nature and reason from them.  It may be that your opponent’s complaint is not at all one of logic but one of plucking the wrong type of proposition, being insufficiently rigorous about the proposition.

MR GAGELER:   Yes, your Honour is right.  The major premise is something with which one might argue, as your Honour says, maybe unconvincing to some, but the choice of a major premise is not a matter of logic, it is a matter of fixed events.

CRENNAN J:   In a way – and this does not help your opponent – the real complaint in a way is that the Tribunal did not give weight, or proper weight, to the explanations for going back to Pakistan and for not applying for asylum in the United Kingdom.

MR GAGELER:   Yes, if I am correct in ‑ ‑ ‑

CRENNAN J:   It is a bit like a variation on a plausibility opinion.

MR GAGELER:   Yes.  If I am correct in reading the Tribunal as saying, look, the major premise is not an absolute proposition, it is a provisional proposition that somebody is unlikely to go back to the country of origin if they have the fear that they claim in the country of origin, a working proposition, what is your explanation, I am afraid that explanation is not sufficient for me to reach a conclusion that I find implausible.  That is really not a matter of logic.  I am sorry, your Honour Justice Kiefel, that is not a particularly useful answer to your Honour’s question.  Your Honour is asking me to identify the illogicality that I say does not exist and the best I can do, I think, is attempting to put it in his Honour’s terms.

MR GAGELER:   What I was proposing to do, your Honours, is at this point, move to the case law as it existed before the Migration Act, and to do that relatively briefly.  It is covered in our written submissions.  In our submission, there were cases before the Migration Act where the absence of a reasonable, rational explanation for a decision was held to allow for an inference of jurisdictional error on other grounds.  Those cases can be seen centrally to include Melbourne Stevedoring to which I will turn in just a moment and, in our submission, it is really in the application in that line of cases, Melbourne Stevedoring in particular, that one can see S20, and after it SGLB, fitting nothing more than an application of that particular line of cases.

The root principle, your Honours, can be seen in the Melbourne Stevedoring Case 88 CLR 100, which was a satisfaction case, but satisfaction without reasons in that case. At page 111, your Honours will see at the end of the first full paragraph of the judgment, section 23 of the Stevedoring Industry Act set out, and it was a provision that conferred a power on the Stevedoring Industry Board if satisfied of certain things.  At page 117 ‑ ‑ ‑

GUMMOW ACJ:   I am just looking at page 111 for a minute, section 23, where, after inquiry the Board is satisfied of (a) or (b) or (c), then the Board may (a) or (b), as it were, cancel or suspend.

MR GAGELER:   Yes.  So you will see it is essentially the same structure as is adopted in section 65, save that the “may” has become a “must”.

GUMMOW ACJ:   Section 65 says “must”.  Maybe the “may” here means “must”.  It must do (a) or (b).

MR GAGELER:   Possibly.

GUMMOW ACJ:   It may cancel or suspend, not do nothing - if it is decided that it is unfit to be continued to be registered.

MR GAGELER:   Yes, that would make it closer, but certainly the structure of “if satisfied then” is what the Court was dealing with here.  If you then go to page 117 there is the question of the availability of prohibition that is discussed.  It is introduced by the first paragraph ‑ ‑ ‑

GUMMOW ACJ:   Is this not one of those cases where prohibition goes ay an earlier stage, when it might be thought to go at common law.

MR GAGELER:   In the face of a privative clause, the way around the privative clause was to stop the process before the decision was made, that was the way in which it was approached, yes, and that gave rise to part of the difficulty that I will come to in the next passage, but in dealing with the construction of the jurisdictional requirements of the ‑ ‑ ‑

GUMMOW ACJ:   They had never got to that stage, had they?

MR GAGELER:   Had not got to the point of there being a decision in existence, no.  The question was what could be inferred from what the Board was doing with the material before it.

GUMMOW ACJ:   But surely being said, they could never get to the decision, so stop now.

MR GAGELER:   Yes, that is right, they could not get there lawfully.  They could not get there if they were asking the right question.  That is what it said.  Just dealing with the question of construction without reading everything, if your Honours look about a third of the way down the page, it said:

If the board or its delegate is subjectively “satisfied” that the prosecutor company is either unfit to continue to be registered or has acted in a manner whereby the performance of stevedoring operations has been interfered with, then the power exists . . . to cancel or suspend the company’s registration no matter how erroneous in point of fact the opinion of the board or its delegate may be.  But it does matter if the opinion is erroneous in a point of law.  That is to say the board or its delegate must understand correctly the test provided or prescribed by s 23(1) and actually apply it.

So that is pretty self-explanatory, and then applying that at the bottom of page 119, and picking up where your Honour the Acting Chief Justice was coming from, it is said:

It is in this respect only that the stage at which the present application is made becomes important.

So the application was made before the decision was actually made, and what is said in that context at the top of page 120, about the fifth line is that:

The inadequacy of the material is not in itself a ground for prohibition.  But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters.

Then there is an additional sentence explaining the consequence of that.  What is being looked for is the Board correctly understanding the test it is to apply, and actually applying it.  What is not being looked for, and indeed is being distinguished, is a conclusion of fact, however erroneous that conclusion might be.

GUMMOW ACJ:   You will not know whether there are any conclusions of fact, will you?

MR GAGELER:   At that point, pardon, your Honour?

GUMMOW ACJ:   You will never know if there is any conclusion ‑ ‑ ‑

MR GAGELER:   In the circumstances where prohibition is sought before the decision that is correct.  I am not sure whether this Board had an obligation, or had a practice of providing reasons, but it is really the same notion that an apparently unreasonable result may lead to an inference of error of that nature that underlies the approach of the Court in the Hetton Bellbird Collieries case, to which I will not go, but which is discussed by your Honour Acting Chief Justice Gummow in Eshetu, and I will come to that a little later.

It is also the same notion that you see in Avon Downs.  Avon Downs, of course, was picked up and said to be applicable to the migration context, that is the post-1992 satisfaction migration context in Wu Shan Liang 185 CLR 259 at page 275, and your Honours have recently picked up the Avon Downs notion of reasonableness in a slightly different context, but one which should be noted, the East Australian Pipeline Case 233 CLR 229.

Your Honours will recall that in that case the provision with which your Honours were concerned was that set out at page 249, part of the Gas Code, section 39(2) – and your Honours were in particular concerned with 39(2)(a)(ii) which allowed for a particular form of review where – on the ground:

that the exercise of the relevant Regulator’s discretion was incorrect or was unreasonable having regard to all the circumstances.

Your Honour Justice Gummow, the Acting Chief Justice, with Justice Hayne dealt with that in paragraphs 79 and 80, in terms with which the other three members of the Court agreed at paragraph 13, and what is said at the end of paragraph 79 is that:

The second branch of sub‑paragraph (ii) covers the case where failure properly to exercise the discretion may be inferred from the character of the result . . . 

When seen in this light, the term “unreasonable” provides the basis for inferring the presence of one or more of the well established grounds which render a decision “incorrect” . . .  This understanding of the notion of “unreasonableness” as founding an inference (rather than itself providing a ground of review) was developed by Dixon J in Avon Downs –

and your Honours go on to distinguish that from a version of “Wednesbury unreasonableness”.

Now, if one goes in the light of that to S20 198 ALR 59, at paragraphs [36] to [37], after referring to Eshetu, which I will come to in due course, there is an invocation of Melbourne Stevedoring and in the first sentence of paragraph [37] an acceptance of the Melbourne Stevedoring criterion as sufficient for the purposes of the case.  So, in our submission, the line of Federal Court cases which see S20 as an authority that fits within the stream of treating illogicality not as itself a ground of review but as perhaps manifesting other reviewable error is the correct understanding of this case.

Then at paragraphs [59] and [60] there is, in our submission, an important observation and it is to this effect – there is a reference to Lam as emphasising that:

the distinction between jurisdictional and non‑jurisdictional error which informs s 75(v) manifests the separation between the judicial power and the legislative function of translating policy into statutory form and the executive function of administration of those laws.  In this Australian constitutional setting, there is added significance to the point that the English common law courts “always disowned judicial review for error of fact” -

In the next paragraph:

These considerations . . . caution against the introduction into the constitutional jurisprudence attending s 75(v) of broader views of the scope for consideration of factual error in “appeals” on questions of law which are created by statute, or in legislatively created systems of judicial review.

The point that we take from that - and it is an important one, it is emphasised in particular in the discussion in Lam, to which reference is made in paragraph [59] - is that review for jurisdictional error under section 75(v), or its statutory equivalence – here it was section 476 of the Migration Act – is review which is necessarily limited to the transgression of such jurisdictional limits as can be seen to be express or implied in the particular statute and a court within that constitutional and statutory setting should be slow to imply a limitation on the powers of a decision‑maker beyond that which has been traditionally recognised and which was recognised as at the date of the enactment of the relevant legislation.

GUMMOW ACJ:   We are not, in looking at this regime, looking at 75(v), are we?  We are looking at section 76(ii) creation?

MR GAGELER:   Section 76(ii) ‑ ‑ ‑

GUMMOW ACJ:   Just like the AD(JR) Act is not section 75(v) based.

MR GAGELER:   But the nature of the review being exercised pursuant to a function conferred under section 76(ii) is in the same nature as section 75(v).

GUMMOW ACJ:   It may or may not be the same as 75(v).  It may be wider.  The AD(JR) Act is wider.  It goes beyond jurisdictional error.

MR GAGELER:   The AD(JR) Act does, of course.

GUMMOW ACJ:   Yes, and that is because it is based on 76(ii).

MR GAGELER:   Yes.  Section 476 of the Migration Act is based on 76(ii) but does not go wider.

GUMMOW ACJ:   That is what I wanted to get from you.  That is your submission.

MR GAGELER:   Yes, that is our submission.  Like 39B of the Judiciary Act, the scope of the review does not go wider than section 75(v). 

Your Honours, it is important in this context to recognise that this legislation, that is the relevant form of the Act introduced by the amendments in 1992 which came into effect in 1994, was passed very shortly after Bond’s Case 170 CLR 321. There are a couple of general statements in Bond’s Case which I want to briefly draw your Honours’ attention to recognising that it was, at least at one time, the most frequently cited administrative law case emanating from the Court.  It is relevant to recognise that Bond’s Case was itself a ‑ ‑ ‑

GUMMOW ACJ:   It does not stand up too well in history, Bond’s Case, actually in the light of what happened later.

MR GAGELER:   Bits of it.  Bits of it are doing pretty well, your Honour.  At the top of page 323, this is in the headnote, your Honours may note the terms of the relevant provisions of the Broadcasting Act which, again, is cast in that language of satisfaction, that is the context, and in the course of Justice Mason’s lengthy reasons ‑ ‑ ‑

GUMMOW ACJ:   This was an AD(JR) Act case, was it not?

MR GAGELER:   Yes, but – and the “but” appears at page 341, because relevantly in the frequently quoted passages his Honour is expressing himself in very general terms.  There is a passage at page 341 which is a couple of sentences long but it is useful to read.  At about the middle of the page his Honour says:

The expression “judicial review”, when applied to the traditional review functions of the superior courts in our system of justice, exercisable by means of the prerogative writs and the grant of declaratory relief and injunction, ordinarily does not extend to findings of fact as such.  To expose all findings of fact, or the generality of them, to judicial review would expose the steps in administrative decision‑making to comprehensive review by the courts and thus bring about a radical change in the relationship between the executive and judicial branches of government.  Amongst other things, such a change would bring in its train difficult questions concerning the extent to which the courts should take account of policy considerations when reviewing the making of findings of fact and the drawing of inferences of fact.

HEYDON J:   That last sentence, what does that mean?

MR GAGELER:   I beg your pardon, your Honour?

HEYDON J:   What does the last sentence mean?  I can understand that you take policy considerations into account in developing the law, but a fact is a fact, is it not?  We do not find that the earth is flat just because we want to advance some policy.

MR GAGELER:   No.  Your Honour says a fact is a fact, but there are facts and facts.  It depends on whether the fact to be found ‑ ‑ ‑

HEYDON J:   What is the second category?

MR GAGELER:   ‑ ‑ ‑ has an evaluative element or not and did he fall or was he pushed?  It does not fall within that category, but was he well trained?  Was he exercising reasonable care can bring with it or can be informed.  The answer to that question can be informed by what can be described as a policy consideration.

GUMMOW ACJ:   Yes, but there is a difficulty with this passage.  The difficulty with the passage is it is not paying attention to the AD(JR) Act.  It is not paying attention to section 5(1)(h), “there was no evidence or other material to justify the making of the decision”, which is then supplemented by 5(3).  There are a whole lot of cases on what 5(3) and 5(1)(h) means.

MR GAGELER:   This is one of them.  His Honour is not ignoring that.  His Honour is, if I can put it this way, surveying the field before going into those matters of detail, which his Honour does, which I am not going to do for present purposes, but ‑ ‑ ‑

GUMMOW ACJ:   What is the point?  It may be you can have a specific system of administrative review that does expose findings of fact if the Parliament thinks it is appropriate.

MR GAGELER:   Yes.  That is not the inherited tradition of the ‑ ‑ ‑

GUMMOW ACJ:   The Pipeline Case is an example of a very specific regime of administrative review, a complicated one too.

MR GAGELER:   Your Honour has got the point, that is the point you can do it legislatively.  It is not part of the, if I can put it this way, the inherited general system of judicial review that his Honour is here describing, of which section 75(v) is a very particular and very important species.

GUMMOW ACJ:   They do not see that you get from this passage at 341 to section 75(v) and then to the provisions of the Migration Act which we are construing today.  That is what you want to do.

MR GAGELER:   Yes.  I am going to get there, but ‑ ‑ ‑

GUMMOW ACJ:   Well, we will decide that.

MR GAGELER:   The only other passage, your Honours, is at page 356, where his Honour again, speaking in general terms, before getting, as he does at the next page to the specificity of the particular provisions of the AD(JR) Act, has the quotation first from Waterford v The Commonwealth, an appeal on a question of law case, but then from Justice Menzies in Ex parte White, which was a prerogative writ case, and he says in general terms:

Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law.  So long as there is some basis for an inference . . . even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

His Honour, in the light of what he was saying about judicial review back at page 341, is talking generally about the state of the inherited common law tradition in Australia as at that date, before going on to the specifics of the AD(JR) Act.  Your Honours, if one can turn ‑ ‑ ‑

GUMMOW ACJ:   The reliance in Bond was being placed on 5(1)(f), was it not?

MR GAGELER:   In Bond itself?

GUMMOW ACJ:   Yes, rather than (h).

MR GAGELER:   Yes, that is right.  In Yusuf 206 CLR 323 the argument being addressed, relevantly at page 344, is an argument that had commended itself to the Full Court of the Federal Court concerning the jurisdictional content of the duty imposed by section 430. In dealing with that argument, the joint judgment, your Honours will note, at the end of paragraph 63 invokes as a premise part of the first of the statements I have read to your Honours from Bond.  Without going to matters of detail, when one gets to paragraphs 74 and 75, which is the conclusion of the relevant discussion, what can be seen in the joint judgment is, in our respectful submission, a treatment of a statement of reasons given under section 430 in very much the same way as is indicated by Melbourne Stevedoring and that line of cases.  As is consistent with the general statements made in Bond, what is said at the end of paragraph 74, for example, picking up the last two sentences, is:

What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision‑maker has properly applied the law.  They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision‑maker acts.

Then at the end of the next paragraph, paragraph 75, again the last three or four sentences:

It is not accurate, however, to say that the Tribunal is, therefore, under a duty to make all material findings of fact, if, as seems probable, that formulation of the duty is intended to extend the ambit of judicial review beyond accepted and well‑established limits.

Those being in context, in our respectful submission, those articulated by Justice Mason in Bond consistently with those earlier cases –

If it is not intended to have that effect, it is not useful to formulate the duty in that way.  Rather, the relevant inquiry remains whether the Tribunal has made an error of law, has failed to take account of relevant considerations, or has taken account of irrelevant considerations.

GUMMOW ACJ:   All of this follows from what was said at paragraph 67, I think, on 345, the last few words on page 345:

Does it oblige the Tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make?

MR GAGELER:   Yes.  Certainly the argument was not precisely the argument that we are concerned with here, but the response to the argument, in our submission, is a response that is highly relevant to the present case and can be seen to fall within that stream of cases, of which S20 is one.  That is a case where it may be possible to infer a jurisdictional error, if I can put it this way, of a legal nature, but a mere error of fact, even one produced by illogical reasoning, is not jurisdictional error per se.

Your Honours, can I then go to Eshetu 197 CLR 611? To pick up the discussion in your Honour Justice Gummow’s judgment, which formed the basis of the argument that was put by Mr Walker for the prosecutor in S20, your Honour’s judgment – there are just two passages that I wanted to go to.  One is at page 651 where your Honour introduces the notion at paragraphs 130 and 131 of satisfaction being itself able to be characterised as a “jurisdictional fact”.

So far as we have been able to tell that was an insight articulated really in those terms for the first time by your Honour in Eshetu, later taken up in other cases, but particularly in SGLB 207 ALR 12 at paragraph [37]. What your Honour here is saying, in our respectful submission, very usefully for present purposes, is that where you find satisfaction as a statutory precondition to an exercise of discretional duty then the existence in fact of the decision‑maker’s satisfaction can be treated as a jurisdictional fact which must exist before action is taken.

Your Honour then goes on after referring to the important passage in Quin to quote, amongst other things, Hetton Bellbird Collieries over the page, where your Honour gives certain characteristics to that state of satisfaction, so that those characteristics are read by implication into the statutory reference to satisfaction, so the jurisdictional fact is, really what your Honour is saying as we understand it, the jurisdictional fact is a subjective state of satisfaction that has those characteristics.

We of course accept that as an appropriate and now orthodox analysis.  We contrast it with another well‑understood statutory formulation, the formulation that one finds, for example, in Liversidge v Anderson and in George v Rockett in this Court, where you have the jurisdictional precondition being belief or satisfaction or opinion, as it may be, or suspicion on reasonable grounds.  There you have two elements to the jurisdictional requirement.  One is the subjective belief, opinion, satisfaction or suspicion, and the other is the existence of objectively reasonable grounds established to the satisfaction of the Court.  That formulation, as I mentioned before, was an available, well‑understood statutory formulation, with very well‑understood statutory incidents that was not chosen in the present case.

The other passage that I wanted to go to, and this was really the inspiration for Mr Walker’s argument in S20, is at paragraph 145, and here after the discussion which invokes Hetton Bellbird Collieries and its subsequent cases, your Honour, having referred to an alternative view of Lord Wilberforce in the Tameside Case at the bottom of page 655, says this at the bottom of page 656:

Where the issue whether a statutory power was enlivened turns upon the further question of whether the requisite satisfaction of the decision‑maker was arrived at reasonably, I would not adopt the criterion advanced by Lord Wilberforce.  I would prefer the scrutiny of the written statement provided under s 430 by a criterion of “reasonableness review”.  This would reflect the significance attached earlier in these reasons to the passage extracted from the judgment of Gibbs J in Buck v Bavone.  It would permit review in cases where the satisfaction of the decision-maker was based on findings or inferences of fact, which were not supported by some probative material or logical grounds.

GUMMOW ACJ:   It is the last sentence, perhaps, of Justice Gibbs in Buck v Bavone which is set out at the top of 654 that is important I think.  His Honour said:

where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred –

et cetera.

MR GAGELER:   Yes.  Perhaps the sentence before it, your Honour, I think is a stronger sentence against me. 

Even if none of these things can be established, the courts will interfere if the decision by the authority appears so unreasonable –

et cetera.  What your Honour there said, of course, in the last sentence at paragraph 145 can be interpreted as saying that a lack of logical support for a decision can be a ground of jurisdictional error.  In our respectful submission, that is not the better view and we say not the better view of what your Honour was saying and certainly not the better view of the content of the jurisdictional duty imposed on the Tribunal in reaching a state of satisfaction.  But your Honour equates or at least has in mind that the standard of review that your Honour is referring to is close to the American notion of reasonableness review.  I just wanted to remind your Honour of the content of reasonableness review as revealed in the American textbook to which your Honour was referring.

It is Schwartz.  Your Honours ought have a very short extract from Schwartz.  It is a reference to the Gray v Powell Doctrine.  It is the last thing I would want to do to attempt to complicate Australian administrative law by introducing elements of reasoning from a different era from a different statutory and constitutional setting, but your Honour has referred to it and it does contain some verbal formulae which come very close to expressing the nature of reasonableness and unreasonableness as we would put it.  The extract refers to the Gray v Powell Doctrine and contains a couple of short quotes from the decision of the Supreme Court in Gray v Powell in 1941, I should say, largely overtaken by the Administrative Procedure Act of 1946 which set American administrative law on quite a different course.

GUMMOW ACJ:   Yes, that is right.

MR GAGELER:   But if this is what your Honour was alluding to as reasonableness review, it is not far from what we submit is the appropriate content of reasonableness.  At page 697 there are two quotations from the Supreme Court and both of them come close to expressing an idea.  The first is the one that is inset:

In a matter left specifically by Congress to the determination of an administrative body, as the question of exemption was here . . . , the function of review placed upon the courts . . . is fully performed when they determine that there has been . . . an application of the statute in a just an reasoned manner.

In the next paragraph a quotation within the third sentence:

The reviewing court may reverse only when it “can say that a set of circumstances deemed by the Commission to bring them within the [statutory] concept ‘producer’ is so unrelated to the tasks entrusted by Congress to the commission as in effect to deny a sensible exercise of judgment.”

Again, a failure to bring reason to bear, not an error in the course of reasoning, as we understand the import of those words.  So, properly understood, in our respectful submission, the passage that was the inspiration for the argument considered in S20, that is your Honour’s judgment in Eshetu, does not support a fine analysis of the steps of reasoning to determine logic or not.

So that, your Honours, really to summarise the point, if it is to be treated as in some way a distinct jurisdictional requirement, in our respectful submission, reasonableness or rationality should be seen to involve no less but certainly no more than a conscientious application of the faculty of reason to arrive, rightly or wrongly, at an answer to the statutory question.  It is not concerned with the quality of the process of reasoning.  It is, as we have sought to say in our written submissions, particularly in footnote 10, properly understood, interchangeable ‑ ‑ ‑

GUMMOW ACJ:   Footnote 10?

MR GAGELER:   Footnote 10 – and the accompanying text properly interchangeable with good faith when that term is understood in its broad and correct public law setting.

GUMMOW ACJ:   You seem to be – and I can understand it, perhaps – alarmed at the prospect of Daly’s Case [2001] 2 AC 532 taking root. Should we look at Daly?

MR GAGELER:   It has not been raised against us.  Your Honour certainly can look at Daly.  I was not going to take your Honour ‑ ‑ ‑

GUMMOW ACJ:   What does it establish?  You have put it in your footnote, footnote 11.

MR GAGELER:   Yes.

GUMMOW ACJ:   This is notions of proportionality that are said to be drawn from Europe, are they not?

MR GAGELER:   It is.  I am really not equipped to give your Honour a detailed answer to that question.  It is, as we – if I could put it in ‑ ‑ ‑

GUMMOW ACJ:   If Justice Kirby were here you would be in big trouble at this stage.

MR GAGELER:   I know I would, your Honour, and I would have to go to other jurisdictions as well.

GUMMOW ACJ:   You would be said to be deeply insular.

MR GAGELER:   Yes.  I do not want to give your Honour a glib answer.

KIEFEL J:   The strict proportionality test under German law requires – I think – no more than is absolutely necessary to fulfil the statutory duty so the discretion has to be exercised within that limit.

MR GAGELER:   Yes, as we characterise the decision without going to the detail which your Honour has caught me out on, it is an importation into the English system of administrative review of notions of proportionality drawn from the European Union context.

KIEFEL J:   It does not come only through the Human Rights Act, though.  It comes through the European Court of Justice.

MR GAGELER:   Yes.  The Wade and Forsythe text in its current edition that I have only just become aware of quite usefully distinguishes what it sees as three standards of review having emerged in the recent decisions of English appellate courts.  The Wednesbury test is the first of those.

GUMMOW ACJ:   That has gone, as I understand it.

MR GAGELER:   Not gone but not invoked very often because there are these wider tests ‑ ‑ ‑

GUMMOW ACJ:   Because it is lower.

MR GAGELER:   The second is anxious scrutiny but the third is a proportionality test which is described at page 313 of the 10th edition.

GUMMOW ACJ:   Any case that satisfied Wednesbury would be disproportionate, you would think, but there would be some cases that did not satisfy Wednesbury that would still be disproportionate, I think.

MR GAGELER:   So why would you bother with Wednesbury, in practical terms?

HEYDON J:   Why should we bother with disproportionate?  The legal system has been going for 800 years.  Why should suddenly this idea be brought into it?

MR GAGELER:   Your Honours would do it if your Honours had a legislative mandate to do it.  Absent a legislative mandate your Honours do not.

KIEFEL J:   There is a legal philosophical construct if one looks at the background to a German law that it might be based upon a notion of the rule of law similar to ours, but I do not think that has had a great airing.  That might be a little bit tangential.  Lord Justice Hoffmann has in fact written a paper where he says you do not need to go to proportionality in English administrative law while you have unreasonableness.

MR GAGELER:   He of course took a particular view of Wednesbury unreasonableness, but blended these distinct categories.

KIEFEL J:   Yes, he did – a much wider view.  I think it has to be understood in that context.

MR GAGELER:   Wider than the classically understood version and certainly wider than the prevailing view as it emerged in the 1990s before it was taken over by European notions.

KIEFEL J:   The word “proportionality” can have many colours to it.  Sometimes when it is waved around in English decisions it does not entirely mean quite the same thing as the system from which it is derived.  But that is not unusual when you transmogrify.

MR GAGELER:   That is why I was a little hesitant in going to the Schwartz passage, but the terminology, I thought, was useful.

GUMMOW ACJ:   Perhaps you might supply us in due course with the extract from the latest edition of Wade and Forsythe dealing with these European notions.

MR GAGELER:   Yes.  I will also provide your Honours with a short extract from De Smith, which usefully attracts in a page or two the drift from Wednesbury unreasonableness through the influence of the ‑ ‑ ‑

GUMMOW ACJ:   What year is that edition of De Smith?

MR GAGELER:   It is 2007.

GUMMOW ACJ:   Thank you.

MR GAGELER:   Both textbooks we came across in their current editions after we had produced the written submissions.

Your Honours, finally, and this is the final point, there is a passage in an extempore judgment of Justice Allsop which we wanted to take your Honours to because it really captures in a couple of sentences the essence of the argument that we are putting.  The case is SZDFOv Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192. Your Honours should have it.

KIEFEL J:   I think it is at tab 10 of the bundle that you provided.

MR GAGELER:   Yes.  I was not sure if the bundle was tabulated, but it is at tab 10.  The sentence that I just want to take your Honours to, or the couple of sentences, are quoted with approval in Aronson Dyer and Groves 2009 edition at page 272.  I mention that for what it is worth.  Paragraph 10 contains the two sentences usefully introduced by a discussion of the broad structure of the Act.  What his Honour says in the last two sentences of paragraph 10 is:

There may be circumstances where findings of fact are such as to demonstrate that the Tribunal has misunderstood its task.

That is the Melbourne Stevedoring, Avon Downs, S20 line of case –

There may be circumstances where the findings of fact are so irrational or capricious as to display a failure of the Tribunal to attend conscientiously and appropriately to its statutory obligations.

If there is content to be given separately from legality to the element of reasonableness it is a requirement for the Tribunal, in his Honour’s language, to attend conscientiously and appropriately to its statutory obligations, that is, to go about its task serving the purposes of the statute through the application of reason.  If your Honours please, those are our submissions.  If I have anything more intelligent to say about Daly I will say that in reply.

GUMMOW ACJ:   Yes, Mr Game.

MR GAME:   Could I first take your Honours to the Migration Act and just bring to the foreground the three, as we would see it, critical statutory provisions in relation to the question of satisfaction.  Section 36, which your Honours are all familiar with, requires that:

the Minister is satisfied Australia has protection obligations -

Section 47(1) ‑ ‑ ‑

GUMMOW ACJ:   Whereabouts in 36?

MR GAME:   Section 36(2):

A criterion for a protection visa is that the applicant for the visa is:

(a)a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations -

There is no need to chase it through, but that takes you to the regulations and there is a regulation that deals with protection visas and that takes you to the treaty and the terms of the treaty that we are concerned with here are set out at page 3 of the appeal book, but they are well known to your Honours – Article 1A(2).  So that is the question upon which the Minister and in turn the Tribunal must be satisfied.  Now, section 47 then says:

The Minister is to consider a valid application for a visa.

The word “consider” is something of substance, and I would just remind your Honours, you may have come across it before, but in discretionary powers, section 418, there is a provision that says:

the Minister does not have a duty to consider -

So one can see “consider” contrasted with no duty to consider - I think it is 418 ‑ ‑ ‑

GUMMOW ACJ:   Just a minute, 418?

MR GAME:   Section 418, subsection (7).  I think there had been a few misfired attempts to get 418 – 417, sorry.  My mistake, sorry, it is section 417(7).

GUMMOW ACJ:   Yes.

MR GAME:   I do not think that has ever been actually ‑ ‑ ‑

GUMMOW ACJ:   That has been quite critical in mandamus cases.

MR GAME:   Yes, your Honour, absolutely.  So when you come to section – that connotes an earlier step, “consider”, “not consider”, then we are in an obligation to consider under section 47.  Then when you come to section 65:

After considering a valid application for a visa, the Minister is satisfied . . . 

(ii)     the other criteria . . . have been satisfied -

So it is the combination of the obligation to consider, be satisfied - there are preconditions for the exercise of the obligation, not discretion, but obligation in section 65 that, as it were, gives meaning to what is the nature of jurisdictional error, or what are jurisdictional facts that ground in the Tribunal’s consideration and the Court’s review of it.

Now, the answer to the argument which has been put against us can be seen, in our submission, in the joint judgment in SGLB, which I would like to take your Honours to.

GUMMOW ACJ:   Just tell us what the answer is without quoting words at us.

MR GAME:   I am going to, your Honour.  The answer is that the satisfaction that is required is not the satisfaction of the kind that says that the Tribunal believes it is satisfied, or the Tribunal is bona fide as to its satisfaction that the Tribunal – for example, the Amalgamated Collieries Case – that the Tribunal has an opinion that something is reasonably likely of that kind.  It is more grounded in the substance of consideration and the substance of satisfaction.  Your Honour’s judgment in Eshetu shows this.  It is not that the Court makes its own, shall I say, factual investigation, but because they are characterised as jurisdictional facts, the jurisdictional fact being the question of satisfaction in respect of the criteria.

Because they are jurisdictional facts, one must read into that what was described in S157, applying Hickman, as imperative duties, or inviolable limitations.  The inviolable limitations and imperatives duties, the satisfaction be, shall I say, reasoned upon logical grounds, and there is no heresy in that.  That actually is pretty much what Chief Justice Latham said in the Hetton Collieries Case which was referred to before.

GUMMOW ACJ:   Just a minute.  The legislation does not say upon reasonable grounds or anything like that.  It is not like Liversidge v Anderson.

MR GAME:   It does not say on reasonable grounds, but ‑ ‑ ‑

GUMMOW ACJ:   The question is, what freight is carried by the word “satisfied” ‑ ‑ ‑

MR GAME:   Yes, what freight is carried by the two notions, “consider” and “satisfy”?

GUMMOW ACJ:   Having regard to a diverse range of constitutional and other considerations, I suppose.

MR GAME:   Yes, your Honour, but at the back of this it is to be recalled that the argument in Plaintiff 157 which failed was that there were only three preconditions for the, shall I say, valid exercise of administrative power, one of which was that the decision was a bone fide decision, and that is the only relevant one for this situation, because the other two are really concerned with delegated legislation and that kind of thing.  One would only be left with the bona fides of the decision.  Plaintiff 157 rejected that notion and it was attaching to that question in SGLB that your Honour, in the joint judgment with Justice Hayne, adopted that which was said by Justices Gaudron and Kirby in Applicant S134, which ‑ ‑ ‑

GUMMOW ACJ:   Which was a companion to the other one.

MR GAME:   Yes, which was that it is not correct to say that the statutory question of whether or not there has been true satisfaction by the Tribunal is found in satisfying oneself that a bone fide attempt was made.

GUMMOW ACJ:   Is that not a starting point?

MR GAME:   That is the starting point.  The whole case is what is inherent in the idea of satisfaction in this statutory context.

HEYDON J:   You said reasoned upon logical grounds.  Does it have to be impeccably reasoned upon wholly consistent logical grounds?

MR GAME:   No, your Honour, there are qualifications and the qualifications are that it is only, shall I say, the jurisdictional fact of satisfaction which must be reasoned on logical grounds.  It is not anterior reasoning.  It is not reasoning along the way.  It is the ultimate reasoning that takes – in SGLB the language used in the joint judgment is not based on findings or inferences of fact supported by logical grounds.  The authority given in that decision is actually the decision in S20 which was put by the Solicitor‑General as really a case that took one nowhere in this particular discourse, but it does take one somewhere because it is really a decision of this Court now unless the Court declined ‑ ‑ ‑

GUMMOW ACJ:   What is the citation of S20, Mr Game?

MR GAME:   SGLB is the case I wanted to take you to, your Honour, which is (2004) 78 ALJR 992 and the passage I wanted to take you to is at paragraph [38] and the footnote is footnote 13 to the proposition:

the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

The footnote 13 is to S20.  Now, the judgments referred to there at paragraphs [37] and [52] are the Acting Chief Justice with Justice McHugh, and Justice Gleeson is put as “cf at 1168 [9]”, but if you go to Chief Justice Gleeson’s judgment in S20 at that paragraph, he appears to have accepted Justice Deane’s judgment in Bond on the very subject which is a very broad ranging view of irrationality and illogicality.

GUMMOW ACJ:   I think Justice Deane would be wider still.

MR GAME:   Yes, your Honour.  So this passage here ‑ ‑ ‑

GUMMOW ACJ:   What is the citation in the Commonwealth Law Reports of S20?

MR GAME:   None of them have been reported in the authorised reports.  Now, the point I began with is in that part of the joint judgment in SGLB at paragraph [47] and following where this question is considered in the context of the privative clause.

MR GAME:   As we would see it, it is really finding what is the content of the imperative duties and what is the content of the inviolable limitations found in the Act and the Solicitor‑General would say there are none, there are no further ones, because the only thing taken out of the strict three limitations ‑ ‑ ‑

GUMMOW ACJ:   I am not sure he would say there are none.  Justice Crennan was asking about this.

MR GAME:   Why would he say there is none?  Well, he would say there are none because he says all that you have to do is have a bona fide decision, but that is in the three, shall I say, strict principles in Hickman.  It is the rejection of those, shall I say, three strict principles as the limit of judicial review that was marked by S157 that is picked up in SGLB as applied to this statutory scheme.  So when you come to paragraph 51 you see that the satisfaction of the conditions is a satisfaction that goes beyond a bona fide attempt to determine the criteria, which is the passage referred to in applicant S134. 

That consideration goes on for some paragraphs, but the other idea that I was contrasting it with is the reasonably likely question which really would take a finding in Amalgamated Collieries which would really take away from the ability to, as it were, go behind a determination if all a Tribunal had to do was satisfy itself if something was reasonably likely.  We would see that this case effectively starts and finishes – the question that is raised by this case starts and finishes in what we would submit must be an acceptance that jurisdictional facts – and the jurisdictional fact here is whether or not the Minister is satisfied the statutory criteria are satisfied.  That ultimate inference must be based on logical or rational grounds.

CRENNAN J:   How do you factor in two distinct people looking at a set of facts and each on logical grounds coming to differing conclusions, that is to say, one person looking at a set of facts may find explanations plausible and another find them not plausible.  How do you deal with that in the schema of what you are saying?

MR GAME:   If it is just about credibility findings and it is open to find something is or is not, then, in my submission, you would not find that it was not based on logical or rational grounds.  So if it was a question of choice as to whether or not one accepts or rejects an account, then, in our submission, you would not get past the privative clause in respect of findings of the kind under consideration in this case.  Whether or not you have a statutory obligation to give reasons may not ultimately be determinative, but it is very important, but because you have reasons you are taken further than you are in the situation such as in Avon Downs where you have the exercise of a discretion and no process of giving reasons.  If you have an exercise of a statutory power or a discretion but you have no obligation to give reasons, just as in Wednesbury, then you will have nothing, apart from the extremity of the result or, to use the language, the unreasonableness of the result to determine the question on.  So you will be driven back to Wednesbury unreasonableness.  You will have nothing else.

Now, the big thing in Eshetu was that unreasonableness in the context of section 75(v) had to be jurisdictional error, was not error within jurisdiction, which fits very well with the line of cases, Australian Stevedoring and Avon Downs, and it fits well within the constitutional structure in which these questions are examined.  On the other hand, when you have a statutory obligation to give reasons and there is, shall I say, an ultimate statutory question to be determined such as whether the criteria are satisfied, it is unlikely that you may - but it is very unlikely that you would, under normal circumstances, have recourse to Wednesbury unreasonableness, the reason being that because you have the reasons you can ascertain whether or not they are logical or irrational.

In the context of an exercise of a statutory obligation like this you are unlikely to have no failure in logic or reason but Wednesbury unreasonableness in the conclusion.  It is possible but unlikely.  The circumstance in which that could occur is if the unreasonableness lay way back in primary findings of fact which were not jurisdictional facts but, as I say that is – so, in our analysis of how this scheme works and how irrationality and illogicality work in this situation is that irrationality and illogicality should be distinguished from unreasonableness, that unreasonableness should be carved out basically for the exercises of discretion that do not involve the giving of reasons.  Irrationality and illogicality should be applied in a statutory context such as this but only to jurisdictional facts and that sits well with the fact that there is a privative clause that limits the resort to jurisdictional – to identification of jurisdictional error.

All that is left, shall I say, hanging in such an approach is whether or not there is a reserved case for Wednesbury unreasonableness and we would not wish to exclude that possibility but it would be unusual, in our submission, for there to be need to recourse to such an approach.

GUMMOW ACJ:   It is no doubt correct for you to refer to the probative clause which is in the Act in the form that governs this case, is it not, in section 454?

MR GAME:   Yes, it is in the form in which it was.

GUMMOW ACJ:   In a way, that is the starting ground as to how is it that the probative clause does not apply?

MR GAME:   That is exactly – how does it come about that section 474 does not apply and we say we adopt that which is – and I do not mean in a hagiographic way, but we adopt that which was said in SGLB and the reason, in our submission, that that is correct is that you are not latching on to irrationality or illogicality at any antecedent point.  You are latching on to it at what ‑ ‑ ‑

GUMMOW ACJ:   It does not apply because a decision was not made under the Act within the meaning of 474(2) and that follows from Plaintiff 157, does it not?  Is that not the starting point?  Then you ask yourself, why is it not made under this Act?

MR GAME:   That is correct, and then you say it is not made under this Act because there is content in the language of consideration and then satisfaction and that fits well with the language of S157 because it gives place to imperative duties an inviolable limitation.  Why is it not a decision made under the Act:  because the jurisdictional facts did not have a grounding in logic or reason.

GUMMOW ACJ:   No.  Because some other provision was not complied with, namely ‑ ‑ ‑

MR GAME:   Because sections 36, 47 and 65 were not complied with.

GUMMOW ACJ:   What about 430?

MR GAME:   Section 430(1).

HEYDON J:   What was not complied with in subsection (1)(b)?

MR GAME:   What was not complied with was ‑ ‑ ‑

HEYDON J:   Is the argument that there must have been some reason for this conclusion, but no reason is there?  Or there are reasons there, but the key reason is not there?

MR GAME:   I am going to answer that question by just deflecting Yusuf first because in Yusuf it was said that the Court had to identify its material findings and it did not have to identify matters that were not material findings, but the reasons for the decision, in our submission, the material reasons must have a quality to them of logic in respect of the ultimate question.  We would say, however, that we do not need that to make our argument succeed because the obligation to give reasons, that is to say to set out the material reasons, combined with the obligations in sections 36, 47 and 65, will give you all that you need because you have the reasons.  You can ascertain from them whether or not the ultimate findings are rationally or logically based.

GUMMOW ACJ:   I think you are saying paragraph (b) may be read as imposing an obligation upon the Tribunal to set out what it says are its reasons.

MR GAME:   Yes, your Honour, what it says are its material ‑ ‑ ‑

GUMMOW ACJ:   And if what it says are its reasons do not then measure up to what you say is required by satisfaction in section 65 and the other sections, then those sections have not been engaged, and for that reason there is not a decision under the Act.

MR GAME:   That is correct.

HEYDON J:   Rather than saying it has got to be reasoned upon logical grounds, that is to say, convincingly reasoned on wholly consistent logical grounds.

MR GAME:   Yes, your Honour, but section 430(1)(b) is not doing the work.  Section 430(1)(b) is doing the work of telling you that the Tribunal has to give its reasons for why it decided.

HEYDON J:   What is the difference between your position and a section which simply said there is a right of appeal from the Tribunal on an error of fact or law?

MR GAME:   Your Honour, the recent reading that we put which I am actually saying was adopted by this Court in SGLB, but the reason I am putting is that an error of fact or law would not get you there unless – an error of fact would be far wider than that which I am putting here.  It is not an error of fact.  It is an illogical process of reasoning at the point of satisfaction.  So, in fact, we are not actually talking about findings of fact in the ordinary sense, we are talking about ultimate inferences.  It is no doubt that he did go back for three weeks to Pakistan and it is no doubt that he did go to – sorry, I am interrupting your Honour.

HEYDON J:   I am interrupting you, for which I apologise, but Justice Moore, where he speaks of an absence of findings – now if you have failed to make a finding, you are making an error of fact.

MR GAME:   The absence of findings that support reasons is very close, if not the same thing, as illogical findings that support reasons because one could be a gap and the other one could be partly a reason and partly a gap.  So those two things, in our submission, are very, very close to each other to the point in a practical instance of being indistinguishable.  So I am saying nothing like, or I hope I am saying nothing like this was the same as an appeal on the question of fact or law. 

The other point which I have not brought out, but is – and I am sliding away a bit from your Honour’s question – but S20 made clear that in the realm of jurisdictional facts it is not really to the point to speak about errors of law, the discourse is different, and it is not necessary to establish what is described as an error of law when one is looking at, shall I say, the wantonness of findings in respective jurisdictional fact.  S20 in that respect was taken up in SGLB.

Now, the other part of the argument is that there is this line of Federal Court cases which says that one must go so far as to show there is error of law, but there is really, in our submission, a short answer to all of that and it is found in the case which is relied on throughout that line of cases which is a decision of the Federal Court in a case called Epeabaka 84 FCR 411 and if I may take your Honours to that case. This is the case which is said to, shall I say, found the line of cases, and one finds the critical passage in the court’s judgment at 420 and following, paragraph 20 and following. Now, the trick in all of this is that what was being considered in Epeabaka was Part 8 of the Migration Act before it was amended, so it was necessary under 476(1)(e) to show error of law, so the illogicality had to get to be an error of law.

GUMMOW ACJ:   Sorry, you had just better take us through this legislative jungle step by step.

MR GAME:   The Migration Act was largely amended in 2001 and Part 8 went in its original form.

GUMMOW ACJ:   Let me see what the relevant print would be.

MR GAME:   They have not cited the provision, but I am confident that when the court is considering at page 420 “Whether illogicality constitutes error of law?”, I am confident that they are doing that because at the relevant time Part 8 was a form of what was called bifurcated relief.

GUMMOW ACJ:   I think it is Reprint No 7 of the Act.

MR GAME:   I have not brought it, but I have unpleasant memories of it.

GUMMOW ACJ:   What do you say is the relevant provision?

MR GAME:   Section 476(1)(e).

GUMMOW ACJ:   Section 476?

MR GAME:   Section 476(1)(e).

GUMMOW ACJ:   Yes.  Wait a minute, 476(1)(e) said an:

application may be made for review by the Federal Court of a judicially‑reviewable decision on any one or more of the following grounds:

. . . 

(e)      that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision –

Is that what they were construing?

MR GAME:   Yes, your Honour.  So, your Honours, the Court will actually have this section in its copy of Eshetu 197 CLR 611 at 621. So your Honours who do not have the earlier reprint, it is there set out in the joint judgment of Chief Justice Gleeson and Justice McHugh. There is no other candidate in Epeabaka for that question to be posed in 476(1)(e).  I will not take your Honours through all the cases, but a number of those cases were after S20 and before SGLB and they do not consider it. 

In our submission, what has happened is that there has been a slide or a failure for it to be sufficiently taken into account and realised that the regime had changed and the earlier decisions had to be understood on the basis that they were considering a different and much more limited regime.  What had happened was that since 1992 Part 8 limited review and there was a cut-down version of AD(JR) relief in the Migration Act.

GUMMOW ACJ:   Section 430 was there at this time.

MR GAME:   Yes, 430 was there, your Honour.

GUMMOW ACJ:   And 65, I think?

MR GAME:   Section 65 is at the heart of your Honour’s reasons in Eshetu so yes, it was there.  But, of course, section 476 was not a privative clause.  Section 476 cut down relief, but you would have to go to this Court if you wanted relief that gave you jurisdictional widths that fell outside of section 476.  Now, what I wanted to do now was to take your Honours to – I wanted to move away from the statutory context to the reasons in this case.

GUMMOW ACJ:   So under the system applying at the time of this case the Federal Court did not have section 39B jurisdiction.  That was taken away by section 485?

MR GAME:   That is correct, your Honour.

GUMMOW ACJ:   What they did have were grounds in 476 ‑ ‑ ‑

MR GAME:   That is correct.  They had nothing but 476.

GUMMOW ACJ:   ‑ ‑ ‑ which is a revised AD(JR) system?

MR GAME:   That is correct.  So if you wanted prerogative writs you had to come here and if you wanted the full breadth of section 75(v) you would not get it under section 476.

GUMMOW ACJ:   Yes.  Some of them may not have amounted to jurisdictional error, but we do not need to explore them.

MR GAME:   No, some of them may not have, and your Honour may recall that subsection (1)(d) had an extended definition but then a constraining principle within it under section 476(3).

CRENNAN J:   You had (2)(b) too, which might explain resort to an argument about illogicality.

MR GAME:   Yes.  What happened in the cases was an attempt to get away from arguing unreasonableness, an attempt to bring irrationality and illogicality in under section 476(1)(e) because by its explicit terms, subsection (2)(b) chopped out what was thought to be Wednesbury unreasonableness, but until Eshetu there was no actual consideration by this Court of the interrelation of these provisions.  Your Honours have been referred to it, but there is a useful discussion of this in Aronson and you do have the pages supplied to you by us.

Now, I wanted to return to the Tribunal’s reasons and it is either page 175 or page 14, depending on where one looks.  At page 175, the line shortly before line 51, has findings and reasons.  At this point there has been a great deal said about what occurred in respect of the person, R, and the person, Mr H, and all that had occurred in the United Arab Emirates.

When one then comes to page 175, “FINDINGS AND REASONS”, one sees the question posed beginning “The applicant essentially claims” and if one feeds into that that which appears at page 164 which is the statutorily picked up definition of Article 1A(2), namely, whether or not he had a “well‑founded fear of being persecuted for reasons of” and here it is “social group” and the particular social group would be homosexual men in Pakistan.

It is worth observing that nowhere, not even in its consideration of what goes to make up a social group, does the Tribunal refer to S395 and the essentially individual nature of determination of whether or not a person is a member of a social group which would be at the very heart of consideration of whether or not the respondent to this Court satisfied the criteria and therefore was entitled to a visa.

Now, what the Tribunal then does at page 175 and following, under that paragraph I just took you to, is it does not assess the first respondent’s claims, it does not even consider his claims in the context of those things which occurred, nor does it assess his credibility in any larger sense, nor does it ever get to consider the question of entertainment of fear in itself because the Tribunal decides that he is not homosexual.  It elevates to what we would describe as two uncontested facts.  It then draws an inference in respect of both of them, an inference which can be seen at the top of page 176:

the applicant was genuinely fearful of serious harm as a result that his homosexuality may become known in Pakistan, he would not have travelled to Pakistan, even for a short period –

Now, this is not something about which minds may differ and it is not a situation in which you can elevate deductive reasoning and say, as a matter of human nature, he would be unlikely to go back, because if you are going to take this single factual thing and, shall I say, crucify the entire case, then this thing has to be grounded in logic and reason and this thing does not have the support to do that work; first, because there is no consideration of whether or not he would be willing to take the risk nor is there nothing to show how a return to Pakistan for three weeks would bring about knowledge or how it would change the circumstances.  So we are not talking about minds differing and preference of one view over the other.  We are talking about the elevation of a single unsupported inference to wipe everything that this man has to say.

So this paragraph wipes everything that happened with Mr R.  This paragraph wipes everything that happened with Mr H.  Once you get to that point, the Tribunal, however one reasons it, illogicality or irrationality, the Tribunal has thrown away, in our submission, a proper consideration of this man’s claims.

GUMMOW ACJ:   Well, I suppose there is an implicit – it has to be implicit – rejection of the first sentence in the last paragraph of page 175 for what happened in the UAE.

MR GAME:   Yes.  He is saying “I am not satisfied any of it happened because he would not have gone back to Pakistan for three weeks”.  I will come to the second, but this also shows quite well why the extremity of the irrationality is not to the point.  Once you have irrationality or illogicality you can determine its significance by a close examination of what occurred and the significance is, shall I say, how close it is to the ultimate finding, not how extreme or ridiculous it is because, as the Solicitor‑General more or less conceded, once something is illogical or irrational it is difficult to talk about some further quality to it.

GUMMOW ACJ:   The answer that would be given to the UAE evidence would appear on page 176, about line 18, would it not, “the applicant’s claims are directed at Pakistan”?  It is the fear of persecution in Pakistan.

MR GAME:   Yes, your Honour.  Is your Honour coming the second part concerning the trip to the United Kingdom in 2006?

GUMMOW ACJ:   I am looking at about line 15, “Further, the applicant had indicated”, it is that sentence beginning “However . . . are directed at Pakistan”.

MR GAME:   Yes, your Honour.  This is another piece of what the Solicitor‑General calls deductive reasoning, which is that if he was homosexual, he would have sought protection earlier even although on his account he had nothing to worry about because things were going fine in the UAE at that particular time and none of the problems arose with Mr H until four months later the next year.  So he is being crucified for not making a claim for refugee status in the United Kingdom when he visited in late 2006 at a time when, according to him, he had no problems living in the UAE and having no problems in the UAE meant that he did not have to consider or return to Pakistan.

Shall I say the lifting up of the general is again another instance of a failure to consider the specificity of this man’s claims.  One has to consider you could take into account a fact like that, but what has happened here is completely different.  You are not just taking into account, you are using it as the fulcrum to destroy the case.  That is what the next paragraph means.  It does not mean inconsistent in the, shall I say, “does not sit well” proposition.  It is inconsistent in the sense, “Well, I reject his claims”. 

GUMMOW ACJ:   That must be what is involved in the sentence at line 34, “The Tribunal does not accept”.

MR GAME:   Exactly.

GUMMOW ACJ:   It seems to be a denial or a rejection of the claim on page 175 at line 60, or thereabouts.

MR GAME:   Yes, but there is a further, shall I say, tack on at the end where the Tribunal says that he would not have had – the Tribunal damns him because he did not seek out sexual partners in Australia and then it damns him for having a one‑night stand because he would have feared disease if he did.  So, again, this is 176, line 50.  So again it is a prediction about human behaviour when the man is living in a one‑room unit in Wiley Park and is being criticised for not seeking out sexual partners in Australia.  The individualness of it is critical because people might not exercise their sexuality for years and years and years for various reasons.  They may or they may not.

Shall I say, the fundamental defect in the findings and reasons is borne out by a consideration of the whole of them in the way in which it appears.  I wanted to take your Honours back to page 173.  There is a consideration of the evidence on these subjects at lines 22 and following, but one sees at 173 the kind of reasoning I was talking about before.  At about line 48 it talks about:

whether or not his relationship with [R] was good, people may have found out about such a relationship and that indicates that he should have sought protection when he had the opportunity to do so before coming to Australia.  He said that he only had fear when something happens, if nothing happens ‑

So, I am really just making the point here that the defect in reasons may have a deeper underlying problem, which is that the actual substance of the specificity of his claim has not been considered.  I would add to that, your Honours, that although in his own written submissions at page 33 of the appeal book at line 12 he more or less put that case, although that case got completely lost because what happened was he was unrepresented before the magistrate and then he had the pro bono assistance of my learned junior at the Federal Court, but he has kind of put his finger on the problem, we would submit, at line 12 on page 33 of the appeal book.

GUMMOW ACJ:   Line 12?

MR GAME:   On page 33 of the appeal book:

That the tribunal did not properly [attend] his evidence, his circumstances ‑ ‑ ‑

HEYDON J:   You are making it, with respect, I think rather hard for the Solicitor‑General.  Partly you talk in the language of bias and partly you talk in the language of basic inattention, just did not take any notice of what was happening in front of her - the Tribunal member.  I think Mr Gageler is entitled to know what these relatively new points are.

MR GAME:   I am not changing the grounds.  I am just trying to show how deep set the irrationality is, in those passages at pages 175 and 176.

HEYDON J:   There is a difference between concentrating really hard and then making a number of blunders in reasoning and, on the other hand, not properly attending to evidence or circumstances.

MR GAME:   Yes, your Honour, but when one sees findings and reasons, and there is – can I put it this way?  It is possible that in a particular case you could have a series of factual assertions and yet you might not need to consider any of them because there is one circumstance over here which demolishes them.  For example, there is an air ticket that shows the person was in Sri Lanka at a time they said they were in India or something like that.  But that is the kind of exercise the Tribunal has tried to do here, but it does not work, and if it does not work, then you are back on the fact that there is nothing there, once that irrationality has gone, and that is my point.  There is nothing there apart from this irrational reading.

CRENNAN J:   Just on the irrationality, if I take you back to 173 for a moment, at line 55, do you see there is a sentence there:

The Tribunal noted that it seemed unreasonable –

this is in relation to the United Kingdom –

the applicant would not apply for protection ‑

In a sense, the Tribunal finds implausible that aspect of the account that is given.  I am raising this in the context that you are saying ipso facto in a sense the decision is an irrational one.

MR GAME:   The noting of it that it seemed unreasonable is – “I was happy to keep things to myself”, is what he says.  “I was happy to keep my relationship with R to myself, but the whole thing blew up”.  Then in that passage a quality of unreasonableness is brought to the applicant because he did not think sufficiently long term, that is to say, that one day people would find out.  That very sentence, in my submission, bespeaks the kind of ipso facto assumptions about how people will behave without considering the specificity of his case.  That is the kind of thing that I would rely on in showing that once the logicality and rationality of these critical passages on 175 and 176 have gone ‑ ‑ ‑

GUMMOW ACJ:   The difficulty is the word it seemed “unreasonable”.  What the Tribunal has to say was it seemed incredible or implausible.

BELL J:    If you put “implausible” in there, what is irrational or illogical about a view that it is surprising that a person would choose to keep an important part of his life secret for many years rather than availing himself of protection.  You can see minds might differ about that very strongly.  It is a rather modern view from the Tribunal but, nonetheless, what is irrational about it?

MR GAME:   Your Honour, you have changed the word to “unreasonable”, but if you do change the word to – “implausible” is too strong, but it seemed a little unlikely.  It might be something that one could say in the context of, shall I say, a reasoned decision about his claims, but we do not have a reasoned decision about his claims in this case and, in my submission, one cannot look elsewhere to find that reasoned decision.  That is my answer to that.

GUMMOW ACJ:   How are we going for time?

MR GAME:   I have finished, your Honour.  Mr Gageler, I think he will be very quick.

GUMMOW ACJ:   We will adjourn until 2.15 pm.

AT 12.53 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

GUMMOW ACJ:   Yes, Mr Solicitor.

MR GAGELER:   Your Honours, there are five or six things to mention, some of them strictly in reply.  The first is that we have provided your Honours with extracts from De Smith and Wade.  The second is that I have looked again over lunch at the decision of the House of Lords in Daly [2001] 2 AC 532 which discusses, not for the first time in the House of Lords, the tests of proportionality, and introduces or endorses a test of heightened scrutiny of judicial review in cases involving human rights, as recognised by the European Convention.

There is a suggestion in the speech of Lord Steyn that what is being engaged in is a contextual application of traditional grounds of review - if you like, a development of Wednesbury.  That is perhaps a view - in our respectful submission, the better analysis of what has occurred in the last decade or so in the United Kingdom is that given in Wade and Forsyth at page 313.

GUMMOW ACJ:   What is the year of that edition?

MR GAGELER:   That is 10th edition 2009.  De Smith was 2007.

GUMMOW ACJ:   Thank you.

MR GAGELER:   That is, what has emerged in the United Kingdom is at least three standards of review.  That is mentioned at the bottom of page 313.  The question is asked at the top of page 314 whether it is time to say goodbye to one of the traditional grounds of review applicable, at least, to an exercise of statutory discretion.

I think the practical position is that, at least in most cases that come before the courts, the other standards of review will render Wednesbury redundant.  The notion, I should add, that in a case involving the migration status of an individual there should be a heightened or an anxious scrutiny, something that comes through the United Kingdom cases, is inconsistent with the approach of this Court in Wu Shan Liang.  That is the second point. 

The third point getting closer to reply is that our learned friends have sought to explain the post‑S20 Federal Court cases which reject illogicality as a ground of jurisdictional error, as an unthinking application of Epeabaka which was decided under a different statutory regime concerned only with error of law.  We have collected the relevant cases in footnote 5 and if one goes to them – and I am not asking your Honours to turn to any of them except one – you will see that is really not an adequate explanation of what those cases were saying. 

The one case I would ask your Honours to turn to is the interestingly named W404/01A of 2002, the joint judgment of Western Australian members of the Federal Court which at paragraph 35 rejected a ground of illogicality and did so on the facts and added, even if the reasoning were illogical, the authorities show that this is not in itself a ground of review though it may on occasion manifest other reviewable error citing S20, that is, explaining S20 or giving an understanding of S20 entirely consistent with Avon Downs and Melbourne Stevedoring.

The next point, again, in reply, is to deal with our learned friend’s reliance on SGLB.  SGLB 207 ALR 12, your Honours will recall is a post‑S20 case where your Honours were taken, in particular to paragraph [38].  What is to be said about paragraph [38] are a couple of things.  One is if you look at footnote 13 it is nothing more than an application of S20, and if you look at the last sentence, it is clearly enough an allusion back to the Melbourne Stevedoring type analysis, and the statement sandwiched between those two things, the statement ‑

If the decision did display these defects, it will be no answer that the determination was reached in good faith ‑

has to be understood as an answer to the argument which I was putting in that case, and which was essential to the effect that there was a residual role for the Hickman principle, and your Honours, the Acting Chief Justice with Justice Hayne, really dealt with that argument at paragraph [51].  So the argument, if it had prevailed, would have been to the effect notwithstanding that the irrationality or illogicality allows for an inference that the Tribunal asked the wrong question, it was enough that it was making a bona fide attempt to ask the right question.  That is the argument that is being squashed. 

Next your Honours were referred by my learned friend to a number of provisions of the statutory scheme and he invoked in particular section 47, that the Minister is required to consider a valid application and suggested that the requirement to consider, repeated in the opening language of section 65, added something to the nature of the satisfaction that was to be formed after consideration.  The question, however, becomes, what does it add, but in any event, the relevant provision for the purposes of the Tribunal is not section 47 which deals with the Minister.  It is section 414 which requires the Tribunal to review the decision in respect of which an application for review has been made and then section 415 allows the Tribunal, for the purposes of the review, then to exercise the power conferred by section 65.  Your Honours, so far as section 430 is concerned, I think I gave what could only be described as an unclear answer to the question of its jurisdictional status.

Section 430 provides that:

Where the Tribunal makes its decision . . . the Tribunal must prepare a written statement that –

has certain characteristics.  I had described that as a procedural provision.  I accept, we accept, that it imposes a duty on the Tribunal.  Failure to provide a written statement of that nature would result in a failure to comply with the statutory duty and could be compelled by mandamus.  We would, however, dispute that it does have any effect on the decision in respect of which the statement of reasons must be given.

If you look at section 430 and then look at the procedural provisions which at the relevant time followed, section 430A through to section 430D, you can see that it was possible for a decision to be given orally, section 430A(1)(a), and section 430D contemplated that the written statement could come up to 14 days after the decision was made.  There is a distinction, in our respectful submission, between the decision and the reasons for decisions, and a failure to give reasons for decision does not of itself vitiate the decision.  I should add that sections 430A to D were repealed by Act No 85 of 2008, but they were in the Act at times relevant for the present appeal.

Finally, your Honours, my learned friend went to page 33 of the appeal book to a letter of the applicant and to the allegation that the Tribunal did not properly attend to his evidence, his circumstances and so on.  All I have to say about that is that is not the error which Justice Moore found at pages 252 and 253.  Depending on quite what is meant by “failing properly to attend to his evidence in the circumstances” it is possible that a failure of that nature by the Tribunal would amount to jurisdictional error, and that is a failure conscientiously to attend to answering the statutory question.  But that is not the way in which his Honour found the error to exist and there is no notice of contention.  If your Honours please, those are our submissions in reply.

MR GAME:   Could I mention one very short thing, your Honour.  When I referred to Epeabaka I was not direct enough.  There is a case called NACB [2003] FCAFC 235. That adopts Epeabaka in explicit terms at paragraph 22 and then concludes at paragraph 30.  What you will find is that all of these other cases, if they do not refer to Epeabaka they do refer to NACB, and the origin of NACB is in Epeabaka.

GUMMOW ACJ:   What is the citation of NACB?

MR GAME:   NACB [2003] FCAFC 235, paragraphs 22 and 30 are the critical paragraphs. You will find that if cases do not refer to Epeabaka they do refer to NACB as the source of the proposition.  If the Court pleases.

GUMMOW ACJ:   Does anything follow from that, Mr Solicitor?

MR GAGELER:   No, your Honour.

GUMMOW ACJ:   Very well.  The Court will consider its decision in this matter.  We will adjourn until noon tomorrow.

AT 2.31 PM THE MATTER WAS ADJOURNED