Minister for Immigration and Multicultural Affairs v Eshetu

[1998] HCATrans 75

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S83 of 1997

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Applicant

and

MOGUES ESHETU

Respondent

Application for special leave to appeal

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MARCH 1998, AT 12.45 PM

Copyright in the High Court of Australia

MR J. BASTEN, QC:   If the Court pleases, I appear with MR R.T. BEECH‑JONES for the applicant in this matter.  (instructed by the Australian Government Solicitor)

MR T.A. GAME, SC:   If the Court pleases, I appear for the respondent with MS E.A. WILKINS and MR G.P. CRADDOCK.  (instructed by Kessels and Associates)

GAUDRON J:   Yes, Mr Basten.

MR BASTEN:   Your Honours, there are two ways of characterising the approach of the majority in the court below.  In either way, we say that the error committed in the judgment of Justice Davies, with which Justice Burchett agreed, was that his Honour moved from the proposition that the court can infer from a disparity between the undisputed facts and the result that an error of law has arisen to the proposition that the court can infer from a failure to find a particular primary fact that an error of law has been committed when, on the facts as found, none appears.  That, with respect ‑ ‑ ‑

GUMMOW J:   That is an elegant way of saying they were getting into merits review, is it not?

MR BASTEN:   Indeed it is, your Honour.  What we would say is that ‑ and that appears, I might say, in the passage at the bottom of page 81 through to the top of page 82 of the judgment to which I may return in a moment.

GAUDRON J:   Is that the only matter you would wish to agitate on appeal?

MR BASTEN:   Yes, your Honour.  We put it on a number of bases as to why, but that is the matter we would seek to agitate.

GAUDRON J:   So the construction, as it were, of what has been said to be a privation clause is no longer an issue, from your point of view?

MR BASTEN:   It has a bearing on how one reaches ‑ if we are correct in saying that that is what the majority did, then we would say that that is ‑ ‑ ‑

GAUDRON J:   The end of the matter.

MR BASTEN:   The end of the matter, yes.  If it is a matter of why they did it or how they got to that conclusion ‑ ‑ ‑

GUMMOW J:   Whatever view one took of 421 and 476 ‑ ‑ ‑

MR BASTEN:   Yes.

GUMMOW J:   But there is a big problem, is there not, about 421 and 476 in the Federal Court?

MR BASTEN:   There is, your Honour, and the second ‑ ‑ ‑

GUMMOW J:   Are there any pending appeals in the Full Court raising 421 and 475 squarely, as it were?

MR BASTEN:   There is a pending appeal in relation to what I might describe as the procedural element which would only arise in relation to an error which allegedly arises under 476(1)(a), procedures not followed.  There is not, as far as I am aware, any matter pending in the Federal Court which would squarely raise the substantial justice point which is used as the basis for an error under 476(1)(e).

GAUDRON J:   We do not need to hear from you further, Mr Basten.  Yes, Mr Game.

MR GAME:   If the Court pleases, I thought that the special leave application was to be about the application of section 420 and whether section 476(2) in effect caused one to read down 476(1)(a).  Ultimately ‑ ‑ ‑

GUMMOW J:   If one were to grant leave, it would be hard to confine it, I suspect.

MR GAME:   Except that we succeeded on 476(1)(e) which was well and truly up and running, both before the single judge and the Full Court.

GAUDRON J:   But where is the error of law here?  That is your difficulty, is it not?  What was the error of law on the part of the Review Tribunal?

MR GAME:   The error of law - well, ultimately Justice Davies did not decide the case on section 420 at all.  Page 73 he said, having considered the relationship between section 476 and 420:

I therefore turn to consider whether, in the present case, the Tribunal erred in law, being an error involving an incorrect interpretation of the applicable law, a ground available under s.476(1)(e) -

and there were three amended grounds that, in effect, picked up that proposition.  It was certainly before Justice Hill.

GAUDRON J:   Now, how was it incorrectly applied, in your submission?  That is a difficulty in this case, is it not, because there is nothing that is clearly a misunderstanding of the law to be applied.  It has just been inferred, has it not?

MR GAME:   No, your Honour.  What is really being said is this.  The Tribunal said you lose this case because I cannot find any independent corroboration of your assertions about what happened in December of 1991.

GAUDRON J:   “I don’t believe you” and “I would if I could find some independent corroboration but I can’t and I don’t believe you.”

MR GAME:   “I don’t believe you” but not for any demeanour reason, and not only that, what Justice Davies is saying, it appears at 81 and following, is that the Tribunal did not address itself to the case that was put.  The Tribunal did not say, “Well, why is this man saying that he was locked up for three days?  Why is he saying he left the country?  Why is he saying all these terrible thing happened to him?  What is the source of his subjective” ‑ ‑ ‑

GAUDRON J:   The error is said to be the incorrect application of law.

MR GAME:   The error is a failure to address the issue raised by the convention.  Now, whether or not ‑ ‑ ‑

GAUDRON J:   Which is?

MR GAME:   Whether or not the applicant had a well-founded fear of persecution.

GAUDRON J:   Which can only be determined as a matter of fact.

MR GAME:   Quite, but that is exactly - how one goes about making findings of fact, if one refuses to inform oneself of the facts, if one refuses to embark upon the issue of fact finding, if one refuses to address the well-founded fear that is in fact posited ‑ ‑ ‑

GAUDRON J:   If one does embark on it, it says, “I don’t believe this man”.

MR GAME:   No, but your Honour, that is the whole point of Justice Davies’ judgment is that is not this kind of case and that is exactly what his Honour said.  Now, it would not be an appropriate to grant special leave for the purposes of determining whether Justice Davies was right or wrong about that, but he has said quite specifically, “This is not that kind of case.”  Now, the way in which the case is now put just does not throw up the question of principle which it is said to be.  His Honour was at pains to point out that that very exercise - and his Honour - probably no more experienced judge in the matter of dealing with administrative appeals that Justice Davies - was at pains to point out that that was not the approach that he was taking to the issue.

GUMMOW J:   Where does he make that clear?

MR GAME:   He says that at the top of page - he says through page 81:

The Tribunal was the decision-maker of fact.

Then it goes on about what he said and there is nowhere in the Tribunal’s decision where what he actually said is addressed, other than it is said:

In my opinion, the Tribunal erred in its understanding of the issues which the definition poses.  I think that the trial Judge would not disagree with this analysis -

and you recall that his Honour found that the decision was Wednesbury unreasonable.  Then:

I do not suggest that attention may not be given by a tribunal to the objective facts or that the applicant’s claim may not be rejected as being inconsistent with objectively known facts......There have been many decisions of Refugee Review Tribunals which have come before the Court where a tribunal has rejected an applicant’s story as implausible in the light of known facts.....declined to interfere, taking the view that the facts are for the decision-maker of fact.

The present, however, is a different type of case.

GAUDRON J:   Only in the sense, surely, that the steps were not spelt out.

MR GAME:   His Honour’s decision is the case was not addressed. 

GAUDRON J:   That is a matter of inference from what?

MR GAME:   Because the Tribunal said nothing about those issues, other than to say “I think it would be improbable that this incident wouldn’t be reported.”

GAUDRON J:   So are you saying that there was a constructive failure to exercise jurisdiction?

MR GAME:   Yes, in effect, in substance.

GAUDRON J:   But that is not what his Honour found, is it?

MR GAME:   But that is in effect what his Honour is saying.  She has not gone about the very exercise which she is required to do.  Now, in our submission ‑ ‑ ‑

GAUDRON J:   But that is a big proposition, is it not?  That is a very large step, when all you have got is the failure to address individual aspects of the evidence, particular aspects of the evidence.

MR GAME:   Your Honour, when one says that is a big call, I mean it is not as though - I have agreed with you.  The case was not quite put on that high basis.  The basis it was put on was that there was a failure to satisfy section 476(1) - that section 476(1)(e) was breached in the sense that there was a failure to address the facts to the law or failure to make findings of fact that were required for the purposes of the exercise under the application of the convention.  Now, that is the way his Honour approached the issue. 

In our submission, it just would not be appropriate to grant special leave for the purposes of asking whether or not, in the purported application of established principles, Justice Davies has in fact fallen into error, when those principles themselves are both acknowledged, recognised and regularly applied, and recently revisited by this Court in Wu.

GAUDRON J:   That is really the worry, is it not, that notwithstanding that the principles have been stated by this Court, not only in Wu but in a number of other cases, whether in fact those principles are being applied.

GUMMOW J:   Maybe one has to say it all again.

MR GAME:   Wu is a very different sort of case to this case.  Wu is a thousand miles from this case in terms of the nature of the exercise that was conducted by the Court in that case.  All of the principles that my friend has asserted, the notion of judicial deference, which I thought was also the second leg of his case, has really been addressed in Wu and by the Federal Court in Posniak and by this Court in Bond and in many other cases.  So again, really the question of principle which might warrant a grant of special leave, in our submission, which is the section 420 point, just does not arise in the result because we succeeded on a higher basis.

GUMMOW J:   But suppose that is wrong, what would happen then?

MR GAME:   Suppose the higher basis is wrong, then we come back to section 420 naturally, because we say that the case was not determined in according to its substantial justice and merits.  Now, the reason why the court got dragged into the section 420 question was, of course, the case was, in one respect, put forward as a section 420 case but because Justice Hill determined - there were really three issues to be determined under section 420.  The first was, was it a procedure under the Act?  Secondly, was it a constraining procedure and, thirdly, was it to be read down by virtue of section 476(2)?  Before Justice Hill, we succeeded on the first two but not the third.  But he found that the decision was Wednesbury unreasonable and that ‑ of course, if the construction that is put forward by the applicant is correct, then that leaves only section 75(v) of the Constitution for review of those kinds of decisions.

In a case called Abebe very recently, after an unsuccessful litigation in the Federal Court, a matter has been referred to the Full Court of this Court for the determination of that issue after the Federal Court litigation is all over.  So there are many reasons, practical and interpretative, as to why the Court would not conclude the section 420 in the way in which the applicant posits.

I think really in light of the way in which the application is put and the issues opened, I am not certain that there is a great deal more that I can offer.  If your Honours please.

GAUDRON J:   Thank you, Mr Game.

Mr Basten, there will be a grant of leave in this case.  It will be a general grant of leave but in granting leave we indicate that that is not intended to inhibit the Full Court of the Federal Court from determining any matter that is pending that raises much the same issues.

MR GAME:   We would seek an order that a condition of the grant be that the costs of the respondents of the appeal be met by the applicants.

GAUDRON J:   In any event?

MR GAME:   In any event.

GAUDRON J:   Yes, that would seem reasonable in the circumstances.

MR BASTEN:   My instructions are to accept that condition on the basis that it is limited to reasonable costs of no more than two counsel.

GAUDRON J:   I do not think you can resist that, Mr Game.  I am sorry for one of you.

MR GAME:   I will stay home.

GAUDRON J:   I can understand that view, too.  Thank you.  The grant of leave will be conditional upon meeting of reasonable costs.  It need not go beyond that.  Is there need for them to be met in advance or anything of that nature?  That can be resolved, can it?  Thank you.

AT 1.00 PM THE MATTER WAS CONCLUDED