Minister for Immigration and Multicultural Affairs v Israelian M13/2000

[2000] HCATrans 678

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M10 of 2000

B e t w e e n -

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Appellant

and

FATHIA MOHAMMED YUSUF

Respondent

Office of the Registry
  Melbourne  No M126 of 2000

In the matter of –

An application for a Writ of Prohibition or for an Injunction or for orders in the nature of Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

THE REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte –

FATHIA MOHAMMED YUSUF

Prosecutor/Applicant

Office of the Registry
  Melbourne  No M13 of 2000

B e t w e e n -

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Appellant

and

OGANES ISRAELIAN

Respondent

Office of the Registry
  Melbourne  No M127 of 2000

In the matter of –

An application for a Writ of Mandamus or Prohibition or for an Injunction or for orders in the nature of Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

THE REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte –

OGANES ISRAELIAN

Prosecutor/Applicant

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 NOVEMBER 2000, AT 10.19 AM

Copyright in the High Court of Australia

__________________

MR R.R.S. TRACEY, QC:   If the Court pleases, I appear with my learned friends, MR A.L. CAVANOUGH, QC and MR P.R.D. GRAY, for the Minister in each of the matters named.  (instructed by the Australian Government Solicitor)

MR J. BASTEN, QC:   If the Court pleases, I appear with MR J.A. GIBSON for Ms Yusuf in both the matters relating to her claim, M10 and M126.  (instructed by Victoria Legal Aid)

MR B. KEON-COHEN, QC:   If the Court pleases, I appear with my learned friend, MR J.A. GIBSON, for Mr Israelian, being the appellant and the proposed applicant/prosecutor in both matters.  (instructed by Armstrong Ross)

GLEESON CJ:   Is it convenient to all counsel if we hear all these matters together?  That is, hearing argument from Mr Tracey first in relation to both his appeals and then

arguments from Mr Basten and Mr Keon-Cohen in relation to their responses to the appeals and also their applications for prerogative relief?

MR KEON-COHEN:   Your Honour, from our side of the Bar table, it is.  We are comfortable with that course.

GLEESON CJ:   Very well, we will proceed on that basis.  Yes, Mr Tracey.

MR TRACEY:   If the Court pleases, these appeals raise questions as to the construction of section 430(1) of the Migration Act and its relationship, if any, with section 476(1) of the same Act.  At relevant times the Act was in the form that the Court will have it in Reprint No 6 and the relevant parts are annexed to the written submissions that have been filed in support of the appeal.  It may be convenient to go quickly to those provisions at the outset.  Section 430(1) provides in fairly common form the requirement that the Refugee Review Tribunal, when it makes a decision on a review, is required to provide the applicant and the Secretary to the Department with a statement of its reasons for decision.

GLEESON CJ:   What is the corresponding requirement in relation to the Minister or the Minister’s delegate?

MR TRACEY:   The Minister’s delegate is required by section 66 to notify the decision but it is not as detailed a requirement as 430 and ‑ ‑ ‑

KIRBY J:   What is that section again, I am sorry?

MR TRACEY:   Section 66, your Honour.  What is required is that if the decision is to refuse to grant a visa because a criterion was not met, that has to be identified and if there was some other statutory provision that led to the refusal, then that must be identified; but there is then a requirement in respect of a certain narrow class of visa, this is 66(2)(c):

unless subsection (3) applies to the application – give written reasons…..why the criterion was not satisfied or the provision prevented the grant of the visa –

GUMMOW J:   Sorry, that is 66?

MR TRACEY:   Section 66(2)(c), your Honour.

GLEESON CJ:   The print I have must be out of date.  No, I just do not have that page.  Thank you.

MR TRACEY:   If I could then return to 430.  Section 430 requires the Tribunal to set out its decision, its reasons for that decision, its findings on any material question of fact and refers to evidence or other material on which the findings were based.

KIRBY J:   Did that follow the Commonwealth pattern in relation to the Administrative Appeals Tribunal?

MR TRACEY:   Yes, it does, and also similar wording appears in the Judicial Review Act and in section 25D of the Acts Interpretation Act applying generally to statutory requirements to provide reasons.  There is then in 476(1) the grounds upon which the Federal Court may review decisions of the Refugee Review Tribunal and the first of those grounds is that the:

procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

and what the Federal Court in the cases subject to appeal has held is that a failure by the Tribunal to comply with section 430 would constitute a procedure for the purposes of 476(1)(a) thereby allowing the court to review the decision on that ground.

By their contentions, our friends have raised the possibility that the decision might also have been supported by the grounds that are set out in subparagraphs (b), (c) and (e), and I therefore draw attention to them at this stage.  I will return to them in greater detail later.

GUMMOW J:   Mr Tracey, can you just go back for a minute to section 66, the Minister’s position under section 66(2)(c).  That would attract 25D of the Interpretation Act, would it not?

MR TRACEY:   Yes, your Honour, but only for the purpose of explaining why the criterion was not satisfied, or the provision prevented the grant of the visa.  It would not impose a more general obligation of the kind that 430 does.  I suppose in a given case it might.  It would depend on the factual position.

GUMMOW J:   Well, it would depend upon whether there were material questions of fact in order to deal with what he is dealing with under 66(2)(c), I suppose.

MR TRACEY:   Yes, it may be that somebody makes a claim that does not bring them within the reach of the Convention on any view and, therefore, the Tribunal does not go any further and nor does the delegate.

GUMMOW J:   Yes, thank you.

MR TRACEY:   It may also be convenient in opening these submissions to identify immediately the errors that were found to have been committed by the Tribunal in each case.  In other words, what was said as to the reason that the Tribunal had failed to comply with section 430(1).

In Yusuf the error that was identified was a failure by the Tribunal to consider an incident referred to by the applicant and to indicate whether or not it accepted or rejected that event as being capable of giving rise to a well‑founded fear of persecution.  The event was mentioned in the course of a narrative by the applicant and it involved an attack by some people from a clan group who attacked the family home.  Now, if I could take the Court first to what the Tribunal said about the matter.  It is in the appeal book at 113.

GLEESON CJ:   Mr Tracey, may I interrupt you for a moment?

MR TRACEY:   Yes, your Honour.

GLEESON CJ:   I should have done this a little earlier to say that there is a certificate from the Deputy Registrar to say that she has been informed by the Australian Government Solicitor in both of the matters relating to Yusuf and Israelian that the second respondent does not wish to make any representations and will abide the order of the Court, save as to costs.

MR TRACEY:   Thank you, your Honour.  The Tribunal reasons start at 107 of the appeal book and the relevant passages start at 113 under the heading, “Background and Claims” where the tribunal records the case that was advanced by the applicant.  The Court will see that in the paragraph starting at line 16 the Tribunal records that the applicant:

said that she rarely ventured outside after the commencement of the civil war, but that on two particular occasions when she did so, she was soon after attacked by members of the Hawiye clan.  She claims that the attacks on her occurred because the Hawiye clan was antagonistic to her own clan.  She said that the first attack occurred a long time ago and the second attack occurred about 20 months ago.  She claims that she received several wounds in the attacks upon her as her assailants had swords and knives.  She said that on each occasion she was assisted by neighbours who, like her attackers, were also of the Hawiye clan.  She said that her husband ran away with the help of a neighbour and she does not know where he is now.

Now, that is a reference to the attack on the house following which the husband left the family and with the help of a neighbour went elsewhere and she does not know where he is.  Then the Tribunal goes on to record that:

She said that she would be alone and vulnerable if she were returned to Mogadishu.  She claims that her Hawiye neighbours suggested that she leave Somalia as they would be unable to protect her in the future.

Having recorded those claims, the Tribunal, at 114, embarked on a discussion of the evidence and findings and referred to a Department of Foreign Affairs and Trade cable of 3 March 1999, which dealt with the clan structure and the relationship between the clans in Mogadishu and, more widely, in Somalia.  Relevantly, at 115, the Department of Foreign Affairs and Trade advised that the Abaskul - that was the clan or the sub-clan to which the applicant belonged – I am reading now at about line 8:

are not the target of the Hawiye, or any other clan, because of their clan affiliation.

Then, at line 13, there is the comment:

It is unlikely that the applicant would have experienced attacks from members of the Hawiye clan for the reason that the applicant is a member of the Abaskul clan.  There is a complex relationship between different clans and to confuse the matter further intermarriage between clans is not unusual.

Then the Tribunal, at line 23, set about its own observations based on that information:

In view of the aforementioned information, and bearing in mind that on the two isolated occasions the applicant encountered problems, she was assisted by persons from the same clan as her attackers, the Tribunal concludes that the attacks against her were motivated by reasons other than race.  The Tribunal notes that the applicant has been generally free from any harm in Mogadishu notwithstanding the continuation of the civil war.  It notes, in particular, advice from DFAT that members of the Abaskul clan are not targeted by members of the Hawiye clan.  That information from DFAT and the fact that the applicant was rescued from further harm by Hawiye neighbours when she twice came under attack, leads to a conclusion that it was not the applicant’s clan membership that motivated the attacks upon her.

The Tribunal went on to conclude at page 117, line 8:

There is clear evidence, cited above, that the Abaskul clan is not targeted –

by –

the Hawiye or by other clans.  The Tribunal finds that neither the applicant’s individual circumstances nor her membership of the Abaskul clan expose her to a real chance of Convention-based persecution in Somalia now or in the foreseeable future.

On that basis the decision of the delegate was affirmed.  That decision was the subject of an application for review under Part 8 of the Migration Act in the Federal Court and that application for review did not raise the point that subsequently availed the applicant before Justice Finn.  However, it was amended in running and it was on that basis, and on that basis only, that the applicant succeeded before his Honour.

KIRBY J:   Was she legally represented before the Tribunal?

MR TRACEY:   I think not.

KIRBY J:   What is the point of complaining that she did not raise the matter at the outset?  Presumably that was raised ‑ ‑ ‑

MR TRACEY:   She was represented in the Federal Court, your Honour, and there was no ground in the application to the Federal Court that raised the point on which she succeeded before the trial judge.  That argument developed before his Honour.  An amendment was allowed in running and it was then raised.  We make no complaint about that, but what is significant for present purposes is the way that the trial judge dealt with the matter.

Could I take the Court, please, to page 133 in the appeal book.  Perhaps if I could firstly just set the background by going to 124 at the start of his Honour’s reasons.  At the bottom of 124 on to 125, his Honour sets out part of a statement that accompanied the application made by the applicant.  The relevant part is:

“About a year and a half ago members from the Hawiye clan invaded our house and attacked my husband.  My husband was able to run away with the help of a neighbor [sic].  My husband had to run away and to date I don’t know if he is alive or where he is.

If I could then go to 133 where his Honour deals with the section 430 statement of reasons.  At line 9 he says:

While that attack in terms refers only to an actual attack on her husband, in giving oral evidence to the Tribunal the applicant appears to have included herself in the objects of that attack –

Then he sets out a passage in the transcript of the oral submissions made to the Tribunal:

“I’ve had a lot of problems during my stay there … and my husband and myself were attacked and I was thrown somewhere.  I was put on something on my head, and that injure – wounded me here on the forehead, and after we have had to suffer attacks and the family who are protecting us have decided that at this time they are forced to take us out of the place where we were living because we cannot – ‘After this accident, we cannot guarantee your safety and we’ve had disputes along with the other people who were attacking you.’  So in that case my husband was taken by an armed man.  They took him out of Mogadishu, and so far I don’t know whether he’s safe or not.  I was pregnant at the time the family took my husband out of Mogadishu.  I don’t know whether he’s alive now or not.”

Then his Honour observed that it was:

important to appreciate the significance of this matter.  It is the first of the matters relied upon in her initial statement.

That is the reference back to 114.

It relates to the break-up of her own family unit and to the departure of the person under whose protection she would ordinarily be and it occurs at a time relatively close to one of the other two occasions on which a personal attack has been made upon her.  It can properly be said, in my view, to be a matter that was central to the events relied upon by the applicant as grounding her fear of persecution.

Then his Honour held:

In the circumstances, it was in my view incumbent upon the Tribunal to consider the matter and in its reasons to indicate whether or not it accepted or rejected that event in its setting as being capable of giving rise to a well-founded fear of persecution.

KIRBY J:   Could I ask you just a small preliminary matter that is concerning me, and there may be some authority which says how it is to be approached.  In both of these cases we have arguments concerning the limitations imposed by the Migration Act upon the Federal Court, but we have concurrent applications to this Court which, like a snake and ladder game, come straight into the Court and, in a sense, it seeks to outflank the problems that arise in the appeals.  Is there any authority that instructs the Court or where the Court has said that it will deal with the appeal first and then only if that is unavailing, turn to the constitutional writs, or can one say, well, whatever the position under the appeal and the complications which face the Federal Court, we have an obligation here to deal with a substantive question which is tendered to us in the constitutional proceedings, and that they should be dealt with first and whatever may be the problems for the Federal Court, they do not arise in this Court and, therefore, we can put them to one side to a case where it is absolutely necessary to deal with them.  What is the correct approach?

MR TRACEY:   Well, your Honour, can I say generally that there is no decision of this Court of which we are aware that says that one approach ought to be adopted rather than another.  Your Honour will recall that in Eshetu the Court dealt with both the appeal and the constitutional writ challenge and I think I am right in saying the same thing happened in Abebe.

GLEESON CJ:   Are you seeking to resist the proceedings under section 75(v) on discretionary grounds?

MR TRACEY:   Well, not on discretionary grounds, but what we would wish to do in the first instance is to seek to persuade the Court that orders nisi should not issue in any event because there is no arguable case.  Now, if it goes beyond that, we were going to ask the Court for leave to respond to any submissions our friends might make in writing and we have in particular in mind that your Honours are to deliver judgment tomorrow morning in Aala which may or may not have a significant bearing on the arguments that might attend the prerogative relief claims.  We have only had very short notice of the claims for relief under 75(iii) and (v).

KIRBY J:   I am not being critical of you at all, Mr Tracey.  I am just trying to get clear in my own mind what is the correct approach.

MR TRACEY:   Well, that brings me back to the answer to your Honour’s question because although there is no general rule that this Court has said ought to be followed, we would be submitting that in the context of this case, the prerogative relief issue, if it goes beyond the threshold and orders nisi would ‑ ‑ ‑

KIRBY J:   As I understand the submissions, it just says, “Set all that to one side.  We come into the Court and we claim the constitutional writs on their own footing as original proceedings in the Court”, and, in a sense, that completely outflanks the appeal question.

MR TRACEY:   Yes.

KIRBY J:   I considered this in passing in a case called Glennan and I think I there said something like one should exhaust the appellate remedies first, but I am not at all sure that that is correct.

MR TRACEY:   Well, in the context of these proceedings, we submit that it is the appropriate course and ‑ ‑ ‑

GLEESON CJ:   In any event, we are in the course of hearing your argument in support of your appeal.

MR TRACEY:   Yes, and that argument, to a considerable extent, will inform the submissions that we propose to make at the threshold of the constitutional relief application, because we submit that it will emerge from this analysis that there is no arguable case for the grant of prerogative relief and, if that is right, then it does not pass beyond the notional stage of the need to make out an arguable case.

GUMMOW J:   The problem really is that the notion that you withhold prohibition or mandamus or whatever on the ground that there is some other remedy available, it has grown up in the system where the other remedy is not in the very same court in which the other relief is sought.  This is a by‑product of Abebe really.

MR TRACEY:   Yes, your Honour.  The decision of Justice Finn was taken on appeal ‑ ‑ ‑

HAYNE J:   Just before you come to that, I understand Justice Finn’s reasons for judgment as amounting to the proposition that there were three relevant incidents relied on and the Tribunal dealt with only two.  Is it as simple as that?

MR TRACEY:   Yes, it is, your Honour.

GLEESON CJ:   And the way the Tribunal dealt with those two was not to reject the evidence of the applicant about what happened, but to say or to conclude that it did not happen as a result of clan-based persecution.

MR TRACEY:   That is right, your Honour, and the people who are allegedly engaged in the attack on the house were also Hawiye and so it will be our submission ultimately that nothing turned on the point.  Once the Tribunal had come to a firm view, based largely on the Department of Foreign Affairs and Trade advice, that the Hawiye were not targeting the Abaskul or anybody else, then whatever may have been the motivation for the attack on the house, it had nothing to do with a Convention‑related reason.

GLEESON CJ:   The key finding of the Tribunal, as I understand it, is on page 115, line 25, that is:

the Tribunal concludes that the attacks against her were motivated by reasons other than race.

MR TRACEY:   Exactly, your Honour.

GLEESON CJ:   Now, I suppose a question is whether, if that was the conclusion the Tribunal came to in relation to incidents two and three, it is a realistic possibility the Tribunal would have come to a different conclusion in relation to incident number one.

MR TRACEY:   Yes, your Honour.

KIRBY J:   Well, your submission may well be correct, but if a party propounds three bases for its argument, (a) and (b) and (c), and then on the grounds only of reference to (a) and (b), it is rejected; the question is left hanging in the air as to whether, had the decision maker turned attention to (c), and whether it did or it did not is not apparent on the reasons, it might have changed its opinion.

MR TRACEY:   Your Honour, we would submit, with respect, that this ought not to be analysed as grounds one, two and three in the sense that one would use the term grounds, for example, of an appeal or an application for judicial review, where some of them are dealt with and others are not mentioned.  Rather, what we would submit is that there were a series of incidents referred to in a narrative by the applicant that she mentioned in support of her claim to be a refugee within the meaning of the Convention.

Now, we submit that simply because the Tribunal in its reasons does not find it necessary to make findings about each of the incidents that are referred to in the narrative, does not constitute a breach of its obligations under section 430.

HAYNE J:   Implicit in that proposition is a proposition about what is meant by material in 430(1)(c).

MR TRACEY:   Yes, your Honour.

GLEESON CJ:   And what is meant by questions of fact, and, in particular, the level of particularity, or generality, with which you identify what you refer to as a question of fact.

MR TRACEY:   Yes, your Honour.  I want to come back in some detail to the construction of 430.  But it may be convenient just to complete the background narrative in relation to each of these matters before I do that just to set the scene.

The matter was the subject of an appeal to a Full Court.  At page 143, in a joint judgment, their Honours identified, at the bottom of the page, the finding of Justice Finn that the Tribunal:

had failed to set out a finding on a material question of fact, namely a claim by the respondent that her family home had been attacked by members of the Hawiye clan.

In the context of what your Honour the Chief Justice just mentioned, we draw attention to the formulation of that proposition because, on the one hand, what is being referred to is a claim by the respondent, and the other is the reference to a material question of fact, and we say the two things are not the same.  Then at page 152, the Full Court notes at the top of the page, about line 7, a dictum from another Full Court which had said that:

The essential task of any primary tribunal is to find the relevant facts and then to evaluate them in the light of the applicable law.

They went on:

In the present case, we discern no error in the way in which his Honour approached this aspect of the case.  When assessing the relative centrality of issues raised – and hence their materiality – a specific instance of alleged maltreatment alleged, and upon which the asylum-seeker’s fear of persecution for a Convention reason was said, in part, to be based, would usually constitute a material question of fact.  Very often the success or otherwise of a claim will turn on the credibility the RRT attaches to the asylum‑seeker’s account of such incidents.

For the reasons his Honour gives, there was a failure to make a finding on what was plainly a material question of fact.

GLEESON CJ:   Just before you pass from that, in relation to the last sentence in the paragraph, that is at line 15, there was no finding adverse to the credibility of the applicant in the present case, was there?

MR TRACEY:   Not in respect of these issues; there was in relation to another claim that she had lately made about an incident in which the home of her sister was bombed almost eight or nine years before.  The Tribunal did not believe that.  But she was believed in respect of the incidents that are the subject of the observations that I read to the Court earlier from the Tribunal.

The relevant error then, it was said, to have occurred and warranted the Court’s intervention was a breach of 430(1), and in particular, 430(1)(c), the material facts finding requirement.

GLEESON CJ:   You say that a contravention of section 430, if it occurs, does not fall within section 476.

MR TRACEY:   Exactly.

GLEESON CJ:   What do you say is the sanction for section 430?

MR TRACEY:   A mandatory order either of the Federal Court under section 481 or mandamus from this Court.

GLEESON CJ:   And do you say the same in relation to section 25D of the Acts Interpretation Act?

MR TRACEY:   It would have to be read in conjunction with some other obligation to give decisions, but yes, your Honour.  If a tribunal does not give the reasons that are required then it can be required to do so.  The problem with the Migration Act, in that regard, your Honour, is that unlike, for example, the Judicial Review Act which contains its own internal mechanism for rectifying deficient reasons, it specifically provided that you can go to the Federal Court and ask for inadequate reasons to be rectified and the Court can so order.  There is not an equivalent provision in the Migration Act.

KIRBY J:   Does not that rather suggest, by juxtaposition of the Judicial Review Act and this Act that the remedy that you propound is really not sufficient because it contemplates that the order stands and is not set aside and that all they have got to do is give a few more reasons for the decision that they made, whereas the very complaint which the respondent makes – applicant – is that had only they considered point (c) they might have reached a different decision, hence you have to set aside the order.

MR TRACEY:   No, your Honour, and I think that really highlights the difficulty.  What we submit 430(1)(c) and equivalent provisions require is the Tribunal to expose its reason.  Now, if it exposes its reasons and they do not deal with a relevant consideration then, normally, that is relied on in judicial review proceedings to establish that ground and there is no shortage of authority for the proposition that a failure in reasons to deal with a particular issue that is one that is bound to be dealt with and not dealt with provides the ground for judicial intervention and the reasons serve that purpose, they expose the deficiency.

What we are suggesting is not that the matter go back for rectification in the sense that the Tribunal gets another go at doing what it should have done in the first place.  It goes back only if it can be said that the Tribunal has not in its reasons set out one of the four things that 430(1) requires it to do.

KIRBY J:   This is a theory of a disjuncture between reasons and decision.

MR TRACEY:   Yes.

KIRBY J:   The proper theory of the right to reasons and the obligation to give them is that it concentrates the mind of the decision maker on having reasons, not whim.

MR TRACEY:   Yes, your Honour.  That is right, your Honour, and in the process may provide evidence that there has been a deficiency in that process which can subsequently be relied on but, as has been held by this Court, what is being reviewed when a matter does go to a court is the decision, not the reasons.

KIRBY J:   What would happen, on your theory, if the Federal Court ordered or found that the reasons were inadequate or the reasons be given in accordance with the section and the Tribunal came to the view that, “Considering (c), which unfortunately we have overlooked, we want to change our decision”, are they empowered to do that?

MR TRACEY:   It has to expose its reasons for its decision.

KIRBY J:   But what if ‑ I mean, you can overlook things.  I have done it myself.  What happens if you then have the Federal Court send it back and it does convince them, “Well, if only I had thought of (c), I would have come to a different view”.  They have no power to change their order or their decision.  They just have to somehow pretend that they give more reasons to patch it up, which is what you say they ‑ ‑ ‑

MR TRACEY:   No, they should not patch it up because what they are required to do is expose their reasons for their original decision.  Now, if they say, “Well, we are not going to change our reasons because that statement actually reflects what we did and the reasons we did it for”, then once that is said there is scope for the applicant to seek review on any available grounds.

HAYNE J:   Now, implicit in that again, is there not the proposition that the congruence that is to be achieved is achieved by notionally determining first that the Tribunal’s decision is not otherwise infirm, for example, for want of consideration of a relevant matter, and that having made that assumption first, if there is a remitter for deficiency of reasons, you are remitting from the premise that the decision maker has considered all relevant matters which leads to, perhaps, highlighting the difficulty in which the Federal Court is placed because sufficiency, or consideration of relevant matters and the like, is one of the excluded grounds, is it not?

MR TRACEY:   Yes, it is, your Honour, and ‑ ‑ ‑

HAYNE J:   So that the premise for this construction of the Act, is a premise which is denied to the Federal Court by the division that Part 8 compels.

McHUGH J:   This very case could throw it up.  Supposing under 481 the Tribunal was directed to give more adequate reasons according to the theory of Justice Finn in the Full Court, and complying with that direction, the Tribunal said, “I did not take into account this other incident”.  Now, the reasoning would then be complete but because of 476(3)(e) the decision would stand because, even if it was a relevant consideration, it should have been taken into account.  The Tribunal expressly says, “I did not take it into account”.  Its decision must stand because of the provisions of section 476(3).

MR TRACEY:   Your Honour, we would not submit that either of these cases would be cases in which it would be appropriate to send the matter back for rectification of reasons.  Our first point is that there has been no breach of 430(1) but, on the assumption that there may have been, we would submit that it would have had to have been a far more blatant breach than is evident in either of these cases, namely, a simple failure to make an express finding that a reviewing court thought might be appropriate.  Your Honour, the sort of case where it might be sent back for rectification of reasons might be one in which the Tribunal has not referred at all in its reasons to a Convention ground that is plainly relevant on the case put by the applicant.

HAYNE J:   But that then highlights the difficulty that may perhaps underlie your argument.  Material question of fact could be construed - as I understand it, you contend should be construed – as material to the way in which this decision maker based his or her decision, or you could construe material question of fact by reference to those matters that the decision maker should have had regard to.  If there is a dilemma there, at some point, Mr Tracey, I am going to be suggesting that you need to choose.  You may say there is no dilemma.

MR TRACEY:   We do, your Honour, and I was proposing to deal with it but I am quite happy to do it now.

McHUGH J:   Much may depend, may it not, on whether (c) and (d) are linked together?  If they are, then the material facts to which (c) is referring would appear to be the findings of fact which the Tribunal has made.

MR TRACEY:   Yes, your Honour.

GLEESON CJ:   Exactly.  The Tribunal determines the materiality.  There may be error involved in the process of reasoning but that is a factual error.  I would have thought the present case throws up the precise problem that Justice McHugh raised.  Can I take you back again to page 115 to the key finding of the Tribunal.  The Tribunal referred to “the two isolated occasions” on which “the applicant encountered problems”.  There may be some circumstances in which some people would take the view that when a woman’s husband is set to flight, that does not involve the woman encountering problems, but the finding of the Tribunal was that those were the two isolated occasions on which she encountered problems.

A possible point of view is that as a matter of substance the complaint that is being made by the applicant is that there was an error of fact in regarding the two occasions referred to as isolated from the occasion that is not mentioned.  That is the one where the husband was put to flight.  A possible point of view is that that is a common or garden allegation of error of fact as distinct from a failure to give reasons.  The reasons say, “I regarded those occasions as isolated”.

MR TRACEY:   Yes, we accept that, your Honour, and, with respect, adopt it.  The only caveat that I would put in is that the applicant’s case in the court below was not that this house attack was related in any way to the two earlier events.  So that there was no attack in the court below as to the finding about it being isolated.  The substance of the attack below was simply on the basis that there was not a finding of fact made about a third incident that might have persuaded the Tribunal that this lady was a refugee and had been attacked for a Convention‑related reason.

GLEESON CJ:   There may be a considerable difficulty, of which the present case might provide an example, in distinguishing between reasons that are said to be erroneous because they do not take proper account of the whole of the evidence and a failure to comply with a statutory requirement to give reasons.

MR TRACEY:   Very much so, your Honour, yes, and, of course, that is linked to consequences, because there is no inevitable logic that a failure to satisfy a statutory requirement to provide reasons should lead to the setting aside of the decision to which those reasons relate.

GUMMOW J:   I think, in answer to Justice Kirby you said there could be a mandamus?

MR TRACEY:   Yes.

GUMMOW J:   From what court?

MR TRACEY:   This Court.

GUMMOW J:   On remitter by the Federal Court under 39B or is that excluded by 485? 

MR TRACEY:   Your Honour, yes ‑ ‑ ‑

GUMMOW J:   We have to know the answer to that to evaluate all this.

MR TRACEY:   Your Honour, we have looked at that and our view at the moment is that it would turn upon how closely the nexus requirement of this being an RRT reviewable decision or a decision in relation to a visa, which appears in 475(1) ‑ ‑ ‑

GUMMOW J:   Exactly.  That is right.

MR TRACEY:   ‑ ‑ ‑ and can be said to touch on a decision rectifying reasons.  On balance we think the better view is that it probably could be remitted, your Honour, but I do not want to make that as a formal submission on behalf of the Minister.

GLEESON CJ:   Could I refer to the definite article in section 430(1)(c)?

MR TRACEY:   Yes, your Honour, “the” findings.

GLEESON CJ:   Yes.  If there are not any findings, you do not have to set them out presumably.

MR TRACEY:   Indeed, and there may be cases where you do not.  For example, if the person puts in a form that makes no claims ‑ ‑ ‑

GLEESON CJ:   But Justice McHugh raised with you the question of a decision maker who, in effect, says in response to an order for mandamus, “These reasons might not look much to you but they are mine and they are all I have got.”

MR TRACEY:   Yes, “They represent what I actually did and I stand by them, right or wrong”.

KIRBY J:   Yes, but is that what the purpose of the Parliament was in enacting this common provision?

MR TRACEY:   Yes.

KIRBY J:   Was not the purpose to ensure that there were more forthcoming reasons of tribunals?

MR TRACEY:   Your Honour, there is no doubt that one of the purposes was to enforce a little intellectual discipline on the part of decision makers.  But, equally, it was to enable aggrieved parties to know why they had lost and to make an informed judgment as to whether or not they ought to challenge the decision in a court.

McHUGH J:   Before 476, the fact that they did not make any findings might be a ground for saying they failed to take into account a relevant consideration, for example.

MR TRACEY:   Indeed, your Honour, that is right.  In that sense, the provisions of reasons that did not disclose that the Tribunal had dealt with a matter it was bound to take into account would, in the normal event, expose the decision to challenge on that ground.  It just so happens in the context of this Act, that ground is not available, but that ought not to, in our respectful submission, alter the analysis.

KIRBY J:   Not available in the Federal Court.

GLEESON CJ:   If an order for mandamus went to this decision maker, and this decision maker said, “Look, I have already told you that I regarded these two instances as isolated, and as the two isolated occasions on which the applicant encountered problems.  You are welcome to disagree with that if you want to, but I have already told you what my process of reasoning was”.

MR TRACEY:   We do not submit that this is the sort of case where a court would grant mandamus because there is no obvious evidence ‑ ‑ ‑

GUMMOW J:   It is conceivable there could be such a case.

MR TRACEY:   Yes, but it is not this case, and it is not Israelian.

GUMMOW J:   Quite, but one has to construct the Act.

MR TRACEY:   Yes.

GAUDRON J:   Well, I have some difficulty with a notion that mandamus will lie any way in the context of these provisions, that is, mandamus to give reasons.  The Tribunal, it does not seem to me, can change its decision.  There is no provision for a different decision to be made, on your theory, by the Tribunal.  All there is is the possibility that some error might be disclosed or corrected.  So, what is the point of mandamus?  What does that achieve?

MR TRACEY:   Well, your Honour, it would work in some cases.  Let me furnish this example:  a case in which the Tribunal, in its reasons, did no more than record the claims of the applicant and then its conclusion that the applicant was not a refugee, and said nothing in between about its reasoning process, that it got it from the facts as they were alleged to have been, and the conclusion to which the Tribunal came.  Now, we would have thought that that was a case in which 430(1) plainly had not been complied with.  Sending it back would serve the purpose of requiring the Tribunal to provide the reasons that provided the link between the facts as claimed and the conclusion as reached.  That may or may not disclose reviewable error, but it would ensure that the Tribunal had complied with its obligation to provide reasons.  It is that sort of case we have in mind when we say that mandamus or a mandatory order under 481(1)(d) might have work to do, but we do not say that it operates in a case like this.

GAUDRON J:   Now, they are the powers of the Federal Court.

MR TRACEY:   I am sorry, your Honour?

GAUDRON J:   Section 481(1)(d).

MR TRACEY:   Yes, your Honour.

GAUDRON J:   How would that come about?

MR TRACEY:   Your Honour, given 478, that you would have to lodge a protective application within the 28 days of being notified of the decision and you would, in the context of that application, seek an order from the Federal Court directing the Tribunal to ‑ ‑ ‑

GAUDRON J:   It sounds like an almost improper purpose argument.

MR TRACEY:   I am sorry, your Honour?

GAUDRON J:   I mean, making a protective application seems to me almost like an abuse of the processes of the courts, but so be it if that is what this Act ‑ ‑ ‑

MR TRACEY:   Your Honour, it happens all the time in judicial review applications and the first directions hearing in the Federal Court, the first order that is made is that reasons for decision be provided.

GAUDRON J:   Well, that may well be because under the AD(JR) Act you can review conduct, and there is a specific provision in there about ordering reasons, but here we have a very strange statutory scheme which, on your submissions, is even stranger than it would at first sight appear, I think.

MR TRACEY:   Well, your Honour, I concede the unusual nature of this scheme and even if it be the case that it would not be appropriate to use 481, there would still be relief available under 75(v) against the Tribunal if it did not comply with its obligations under section ‑ ‑ ‑

GAUDRON J:   So you concede it would be jurisdictional error?

MR TRACEY:   Yes, if it has plainly not done something that it is statutorily obliged to do, then there would be a failure to exercise its jurisdiction.

GAUDRON J:   Yes.

KIRBY J:   You treat the Tribunal as an officer of the Commonwealth for the purposes of section 75(v)?

MR TRACEY:   Yes.  The member constituting it, yes, your Honour.

KIRBY J:   That would be so even if the member has retired or resigned?  Because many of them do I gather.

MR TRACEY:   Yes, there has been some cases, your Honour, not in this particular context, but of equivalent provisions under State legislation, where a rectification order has been made and somebody who has retired has been required to think back as to why he or she made a particular decision and provide reasons for it.

GAUDRON J:   Now, I think you are right to say there would be constructive failure to give reasons.

McHUGH J:   Yes.  In Reg v Cain; Ex parte Evatt 133 CLR 37, and the Commissioner of Taxation, was an application to this Court by way of mandamus for the Commissioner to give more adequate reasons than he had given complying with his duty under regulation 35 of the Income Tax Regulations, and although the application failed on the merits, no member of the Court seemed to think that the remedies were misconceived, they discharged the order nisi.

MR TRACEY:   I am indebted to your Honour for that.

GAUDRON J:   Now, Mr Tracey, once you accept that it as a constructive failure to give reasons, there may well be cases – and at some stage I might need to hear you why this is not one – why you do not infer from a constructive failure to give reasons a constructive failure to consider the application as put.

MR TRACEY:   I am happy to deal with that and I will in due course ‑ ‑ ‑

GAUDRON J:   That may come up in reply to the submissions to be put by Mr Basten and Mr Keon-Cohen.

MR TRACEY:   Yes, your Honour, we will bear that in mind.

GLEESON CJ:   The related problem may be raised by what Justice Finn said at page 135, lines 28 to 31.  He concluded:

that the statement of reasons of the Tribunal is deficient in its failure to address –

the particular –

matter.

There may be a difference, may there not, between a deficiency in a statement of reasons as being an inadequate account of your reasons and a deficiency in a process of reasoning?

MR TRACEY:   Very much so, your Honour, and it has never been the law that one necessarily infers from a failure to mention a particular matter in reasons, that it was not brought into account.  In fact, there are decisions to the contrary and we have referred to them in our submissions in reply, but there is a significant difference, your Honour, between the two concepts.

KIRBY J:   Why would one not construe 430(1)(c), given the very important reforms that were introduced by the Judicial Review Act, and the Administrative Appeals Tribunal Act, and Acts Interpretation Act of this Act as meaning that there is an obligation on the Tribunal to set out the findings which it makes on any material questions of fact?  That is to say any which are objectively material, it must set out the findings of the Tribunal on them, those material questions of fact.

MR TRACEY:   Your Honour, we accept that there is an obligation imposed on the Tribunal by 430(1)(c) to set out its findings on any question of fact that it regards as being material and ‑ ‑ ‑

KIRBY J:   You say that “it regards” but it just does not say that.  It says “on any material questions of fact”, that is to say objectively.

MR TRACEY:   I accept – and objectively in the sense of imposed by the legislation as a material question of fact – no difficulty with that at all, your Honour.  But the critical thing and the difference we have with the decisions below is that it is the Tribunal’s findings on those material questions of fact and that this does not impose a freestanding obligation to deal with all material questions of fact that might later be regarded objectively as being material by a reviewing court whether or not the Tribunal has considered them or not.

KIRBY J:   I think we just have to be a bit careful chipping away and narrowing the scope of these sections given that they are in common form.  They are a template that were intended, as I recall it, serving at the time on the Administrative Review Council, to introduce a very radical change in administrative law.

MR TRACEY:   Of course, but what we are proposing does not involve any chipping away, your Honour.  The principal purpose of these provisions, and there were many, but the principal and relevant one was to expose error if it existed.

McHUGH J:   It had to set out the findings that it made, it did not have to set out the findings that it did not make.

MR TRACEY:   Exactly, and if it did not make them and should have made them, then there may be a ground of review.  It just happens that in the context of this Act, there is not.  But under the Judicial Review Act, the requirement to give reasons would have done its work because you could then have claimed judicial review on the basis that there had been a failure to have regard to a relevant consideration.

KIRBY J:   Well, I repeat, there is no remedy in the Federal Court, there is remedy in this Court.

MR TRACEY:   Under this Act, yes, your Honour, but more generally - and your Honour raised the question of provisions like this which operate far more widely than in the context of this Act, then the remedy does lie in the Federal Court.

KIRBY J:   It is a question, in a sense, of whether you put the emphasis on the definite article or on the word “any”. 

MR TRACEY:   Yes.

KIRBY J:   If you put the emphasis on the definite article it is the findings, good or bad, strong or weak, adequate or inadequate of the Tribunal.  If you put the emphasis on “any material” “findings of fact” then it is the findings which the Tribunal makes on any material questions of fact upon which material questions of fact it shall make findings.

MR TRACEY:   Well, your Honour, we say it must be the definite article when read in context.  In (a) “the decision” can only be the decision made by the Tribunal in the given case; (b) can only refer to “the reasons” for the decision in the particular case and (d), as his Honour Justice McHugh earlier observed, must be linked back to (c), and plainly, refers to the evidence on which “the findings” – the definite article - findings made by the Tribunal were based.

GLEESON CJ:   Well, that gets back to the question of what would be the practical consequences of an order for mandamus.  Unless the consequences of an order for mandamus would involve reconsidering the decision and perhaps amending the decision, you could not order a tribunal to give reasons for findings that it never made.

MR TRACEY:   I know.  And, the answer may be, your Honour, that in an unlikely case - and as we keep stressing, your Honour, this is not the sort of cas where mandamus would be appropriate because the Tribunal has covered all the bases that are prescribed by 430(1) but if, in the example that I cited a little while ago in answer to her Honour Justice Gaudron, there has been a wholesale failure to set out the reasons for decisions, for example, then when you send it back by way of mandamus then what the Tribunal has to do is to give its reasons.  It has come to a decision.  It must have had some reasons for doing it and it rectifies the reasons accordingly.

GLEESON CJ:   But if section 430 imposes not merely an obligation to state any findings you made but imposes a substantive obligation to make findings on any material question of fact then an order compelling someone to comply with that requirement would have to be able to compel them to reconsider their decision, would it not?

MR TRACEY:   Yes, and that is one reason why that does not impose the general obligation.  It does not pass beyond an obligation to expose its reasons, that is all.

GUMMOW J:   Or lack of them.

MR TRACEY:   Or lack of them, but as his Honour the Chief Justice rightly said, with respect, a minute ago, you could not by way of mandamus require them to state reasons that they did not have.

KIRBY J:   The problem I have with your theory of that paragraph is that it is equivalent to saying “sets out the findings on questions of fact which it finds to be material” whereas, that is not what the Parliament has enacted.  It has said:

sets out the findings on any material questions of fact ‑ ‑ ‑

MR TRACEY:   No, “the findings” – “the findings” – its findings.

KIRBY J:   “Material” is an adjective that qualifies questions of fact.

MR TRACEY:   What it has to set out, your Honour, is its “findings on any material questions of fact”.  It is not an obligation to make findings on all questions of fact that might be material.  That is not what it says.

KIRBY J:   Did Justice Brennan examine this in the early days of the Administrative Appeals Tribunal?

MR TRACEY:   Yes, he did as a member of this Court in O’Brien’s Case.  He held that ‑ ‑ ‑

GUMMOW J:   That is what, a repatriation case?

MR TRACEY:   Yes, it was, your Honour.  What he held in substance was that a failure to comply with a provision such as this did not, without more, constitute a ground of judicial intervention.  It is Repatriation Commission v O’Brien 155 CLR 422. The relevant passages are at 445 to 446. He records at the bottom of 445 that the Federal Court had held that:

a further ground for setting aside the AAT’s decision to affirm the Commission’s refusal to grant the respondent’s claim, though their Honours would have remitted the matter to the Tribunal if this had been the only error of law that they had perceived.  Their Honours thought that the AAT had failed “to expose a satisfactory process of reasoning which led to the rejection of [Mr O’Brien’s] claim” and that the court “should regard a failure to comply adequately with the obligation to give reasons as itself constituting error of law, at least when a claim to a pension is rejected”.  It is not clear to me that the AAT did fail to expose its reasons for rejecting Mr O’Brien’s claim but, in any event, a failure by a tribunal adequately to fulfil its statutory obligation to state the reasons for making an administrative decision does not, without more, invalidate the decision or warrant its being set aside by a court of competent jurisdiction.  If a failure to give adequate reasons for making an administrative decision warrants an inference that the tribunal has failed in some respect to exercise its powers according to law (as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts), the court may act upon the inference and set the decision aside.  In such a case, the exercise of the statutory power to make a decision is held invalid not because of a failure to state the reasons for making the decision, but because of a failure to make the decision according to law.  An obligation to give oral or written reasons for a decision is cast on the AAT by s.43(2) –

that is the equivalent provision –

but the remedy for a failure to fulfil that obligation adequately is a mandatory order by the court to do so.

Justice Murphy in that case agreed generally with the decision of Justice Brennan, although he did not expressly refer to this issue.

HAYNE J:   Can I then follow out something that his Honour says there in the context of this Act.  Assume a case where the applicant claims refugee status on two bases, one founded in race, one founded in religion.  Assume the Tribunal deals only with one of the two grounds and says nothing of the other.  What remedy would the applicant have in the Federal Court – any?

MR TRACEY:   No, would not have a ground of review in the Federal Court.

KIRBY J:   That is a pretty serious result, is it not?

MR TRACEY:   Your Honour, it is the result that occurred as a result of this Court’s decision in Abebe and Eshetu.  There is no remedy for breach of natural justice.

KIRBY J:   Please do not blame this Court.

MR TRACEY:   I beg your Honour’s pardon?

KIRBY J: It occurs on your theory of the Act as a result of the enactment by Parliament and the exclusion provisions, but it does not arise in this Court under the Constitution.

MR TRACEY:   That is so.

McHUGH J:   It is a serious error, but if the Tribunal had expressly said in its reasons, “I am not taking that matter into account”, you would still get exactly the same result.

MR TRACEY:   There may be good reason for doing that.  It may be, in a given case, your Honour, that the way in which the Tribunal deals with the ground, both grounds emerge out of the same factual position, and in dealing with the first ground it says or finds something that would be determinative of the second ground and it does not then turn its mind in any detail to it.  It cannot be said, as a general proposition, that just because a particular claim is made and not expressly dealt with in Tribunal’s reasons that there has been a failure that would lead to judicial review, assuming the full panoply of judicial review grounds were available.  It must depend on the circumstances of the particular case.

HAYNE J:   And the narrowing occurs in a way which may perhaps bolster your argument in section 476(1)(e) with the reference to:

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 –

et cetera.

MR TRACEY:   Indeed, your Honour.  The facts as found – one does not get to the ground in (e) until the fact-finding exercise has been done.

KIRBY J:   But that, on one view, would mean the facts as lawfully found by, ie, in accordance with this Act, ie, depending on one’s interpretation of section 430(1)(c).  I think we have been through the debate and I do not wish to reopen the debate.

MR TRACEY:   Yes, I would only be repeating myself in responding to your Honour.

GLEESON CJ:   Am I right in thinking, am I not, that Justice Finn decided this case on the basis of section 430(1)(b)?

MR TRACEY:   He referred generally ‑ ‑ ‑

GLEESON CJ:   I am looking at page 135 line 28.  He concluded that:

the statement of reasons of the Tribunal is deficient –

MR TRACEY:   Yes.  He does not precisely identify (1)(b) and, indeed, in the passages from Thevendram that he quoted immediately before that, the emphasis is on (1)(c) and (1)(d) and then he says, in that paragraph to which your Honour the Chief Justice has just referred:

As the Full Court indicated in the quotation from Thevendram to which I have referred, a breach of section 430 may in a sense be technical.  Nonetheless, it is important if public confidence ‑

and so on.  So it may be that he was thinking of (b), (c) and (d).

HAYNE J:   Well it must be read in the light of page 133 line 32, must it not?  The reference to:

a growing body of jurisprudence on what constitute “material questions of fact”

MR TRACEY:   Yes, your Honour, that would certainly pick up (1)(c), your Honour.  May I go quickly to Israelian ‑ ‑ ‑

McHUGH J: Some support for your general approach, I think, to 430 is obtained by looking at section 13 of the Administrative Decisions (Judicial Review) Act, because there the decision is made and after the decision is made the person is entitled to request for the reasons to be given and section 13, instead of segregating them into (a), (b) or (c) just simply says:

any person who is entitled to make an application to the Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

In that context it is pretty difficult to think that you have got an obligation to set out the findings that you did not make.  There is no change at all really; it is the identical language.

MR TRACEY: Yes. The only difference, of course, was that the draftsman of section 13, I think it is in subsection (7), provided the remedy in the event that the obligation was not satisfied.

GLEESON CJ:   Does section 25D of the Acts Interpretation Act apply to section 66?

MR TRACEY:   Yes, but only in a limited way.  We would submit that it applies only for the purpose of identifying the relevant facts and other material ‑ ‑ ‑

GLEESON CJ:   Well, to the extent to which section 66 imposes an obligation to give reasons, it picks up section 25D.

MR TRACEY:   Yes, we would say it did, your Honour.  Can I just take the Court quickly to Israelian and, again, identify the error in the way that has been treated at various levels below.  The starting point here, if the Court pleases, is some written submissions were made to the Tribunal by the applicant, and they appear at page 87 of the appeal book.  The Court will see at line 30 that Mr Israelian’s advocate, his solicitor, who was making these submissions on his behalf, said:

For these reasons and others, Mr Israelian seeks refuge in Australia.  With regard therefore to the assessment of this application, we request that you look to:

a)   the applicant’s political opinion (ie opposed to the completion of military service in defence of Armenian territorial claims in NK) –

that is Nagorno-Karabakh –

b)   the applicant’s membership of a particular social group (ie persons regarded as deserters and/or draft evaders).

What he had done was come to Australia and stay at a time where, if he had been in his home country, he would have been liable for military service.  Then at the top of page 88, in the first full paragraph, there is a reference to the situation in Armenia:

Subsequent to the disintegration of the USSR, the former Soviet republics of Armenia and Azerbaijan had been in dispute over NK, an area situated within Azerbaijan, but populated mainly by ethnic Armenians.  As stated previously, we maintain that this territorial conflict between sovereign states was more akin to a civil war, in that persons who had previously shared a common nationality, now fought over perceived differences of ethnicity and culture.  With the collapse of the unifying Soviet state, the two small states lapsed into open and violent conflict.  Though the conflict reached something of a stalemate in May 1995, we stress that no firm political resolution has been reached as to the future of the territory.

Then they go on to say that Mr Israelian continues to fear return to his homeland and that the:

various forms of discrimination, persecution, prosecution and enforced conscription being practised against young Armenian men regarded as deserters and/or draft evaders…..maintain that such a perception is likely to be held of the applicant, given that he has failed to respond to call-up notices in January 1993 and that authorities have made several enquiries as to his whereabouts over the past five years.

Aside from disputation as to the severity of discrimination encountered by persons such as the applicant in Armenia (ie whether or not such discrimination is significant enough that it can be regarded as persecution), perhaps the most difficult aspect of Mr Israelian’s review application is determining under which Convention ground his claim to refugee status might be deemed to fit.  We of course acknowledge that the drafters of the UN Convention and Protocol specifically enabled sovereign states to conscript their citizens for military service and that simple objection to such service was not a ground for refugee status.  With regard to Mr Israelian’s specific circumstances, we acknowledge also that he has previously completed military service with the Soviet Army and that this – at first glance – would appear to contradict his stated position that he is a conscientious objector.

MR BASTEN:   If I have not said it, your Honour, may I do so now?  I thought that the written submissions did in a rather difficult and no doubt complex way say that.  That is certainly the proposition I would seek to make, your Honour.  The reason, perhaps, why it does not come through as clearly is that until the reply when, for the first time, we were told we did not know that there was a failure or it has not been shown, we had assumed that the notice of appeal was raising grounds which were simply concerned with the categorisation of the error, that we need now to address it expressly, and if I may adopt what your Honour has said we would do it in those terms.

GAUDRON J:   It may be that you can say because the Act requires that claims be considered, going back to section 415(1) and via it back through, if you come to the view that it is to be inferred that a part of the claim was not considered, then the procedures required by the Act were not considered.

MR BASTEN:   Yes.  Well, that is our primary ground, your Honour, and that may not even depend upon a notice of contention, but if it does, because it may require one to go outside 430, then we seek to rely upon the notice.

Your Honours, I think with the written submissions that covers what we seek to say about the appeal.  In a sense there are questions arising in relation to the original jurisdiction relief in this Court, which of course we say just do not arise.  If it is necessary to rely upon the original jurisdiction, it is necessary to deal with two provisions, namely, sections 75(iii) and 75(v).

KIRBY J: Can I just ask you to pause. You say “if it is necessary to rely on it”. Is that the correct approach where a party comes to the Court by way of an appeal and also invoking original jurisdiction, do we only look at the original jurisdiction if it be necessary or, because it is an invocation of the Constitution, do we give that primacy and deal with that first? What is, first of all, the authority of the Court, if anything, on that? What is the logic of the Constitution?

MR BASTEN:   I suppose it is a problem which has first arisen because of the bifurcated jurisdiction under Part 8, so I do not know of any authority which would assist your Honour.

KIRBY J: What in terms of principle is the correct approach? Both processes are under the Constitution. One comes here, there is an appeal under the constitutional appellate provision. The other comes here, you having invoked the original jurisdiction. As you say, it would not ordinarily arise but it does here. I think we just have to get some principles clear.

MR BASTEN:   Unless an issue is raised as to discretionary refusal of relief on the basis that we went successfully in the first instance to the Federal Court and did not seek immediately to invoke the jurisdiction of this Court, we would say that it does not matter.

KIRBY J:   It is unlikely that we would hold that that was a very big discretionary consideration, otherwise we would be inviting on ourselves even more disasters than we have.

MR BASTEN:   That would invite everyone to file first or contemporaneously in both courts and that, one would think, would not be desirable.

KIRBY J:   But the fact that it is desirable that the ordinary course of litigation should be followed in courts that are available suggests that one should first deal with the appeal.

MR BASTEN:   Yes, and there may be another reason for that, namely, that this is in effect, although not in the appellate jurisdiction, in the nature of a cross‑appeal.  It is only the notice of appeal, ground (2), in the first instance which suggests that the relevant considerations put us outside the Federal Court’s jurisdiction, that characterisation of the error and, secondly, the possibility that there may be procedural error which does not fall within 476(1)(a).

GAUDRON J:   One matter which may provide some guidance at least is this:  theoretically at least under this system, the legislative scheme that exists, one may be able to deal with it simply by allowing or dismissing an appeal but one might then get into trouble if one takes section 75 procedures first of granting a remedy and leaving what appears to be an inconsistent decision on the record of the court below, which at least is a pragmatic way of dealing with the matter.  You deal with the appeal first and see if you can deal with it to finality.  If not, so be it.

MR BASTEN:   Yes.  With respect, that may be right your Honour.  The question had arisen in our minds as to whether if the Court thought that other relief were available and that it might have been appropriate to revoke special leave on the basis that if the reasoning in Singh were thought to be correct, that has resolved the matter of dispute between two separate Full Courts and the Federal Court, so the issues on the appeal could be said no longer to be truly alive, but that would mean one would not need to address the prerogative relief at all either.  But I think the considerations that your Honour raises are probably the correct answer to his Honour’s question and we do not invite the Court to embark upon its original jurisdiction unless that is necessary because we are unsuccessful in maintaining jurisdiction of the Federal Court to deal with the matter.

What I was going to say in relation to the issues though that then arise are that at least in theory one needs to go back to consider the scope of section 75 relief.  Mr Tracey has suggested that perhaps that might be done in writing, at least given the imminence of the possibly relevant decision in Aala tomorrow, we would accept that proposition and also noting the time today.  It may also require reference to section 75(iii) which, of course, would be a separate issue, but which will not, I presume, be addressed in Aala, but we could deal with that in writing too, if that were thought appropriate.

GAUDRON J:   You have not filed in this Court, have you?  You have just simply asked in your submissions.

MR BASTEN:   No, there is a matter in 126 which is commenced by notice of motion and we have filed an order nisi.

GAUDRON J:   Yes, thank you.  And you filed the order nisi?

MR BASTEN:   Yes.

GAUDRON J:   Has that been  ‑ ‑ ‑

HAYNE J:   You have asked for an order nisi.  There is no order nisi, is there?

MR BASTEN:   Well the application has been filed.

HAYNE J:   Which leads to the next question, what is it that you are now moving for, an order absolute in the first instance or what are you - - -?

MR BASTEN:   Well, I think my friend suggested that the Full Court should decide whether the point was arguable, but it seems to us that the Full Court, if it were minded to deal with it – may I say that I understand it is listed for directions, as it were, before the Full Court in the first instance, so we are not seeking to jump the gun.  If it were thought necessary that it be referred back to a single judge, we would accept that procedural step.

HAYNE J:   It is a matter of some interest to me, given the prefix of the number, Mr Basten.  What is it that you are, in fact, asking?

MR BASTEN:   Does your Honour have – maybe the Court has not been provided with the material.

GLEESON CJ:   We have a notice of motion, and a supporting affidavit.

MR BASTEN:   And an affidavit?

GLEESON CJ:   Yes.

MR BASTEN:   Well, the relief is set out in the notice of motion, the relief that is sought – perhaps not terribly well.  But the grounds which are set out in paragraph 1 are intended to be the grounds on which relief is sought under the other grounds too.  It is, in a sense, as I said, a response to the suggestion that this was really a case of a failure to consider a relevant consideration which was excluded from the jurisdiction of the Federal Court, or, if it were a procedural error, it was one which was not to be found within 476(1) because of the terms of 476(2)(a).

GAUDRON J:   What you require, I suppose, is a direction from someone that the notice of motion be referred to a Full Court and heard with the appeal matter.

CALLINAN J:   Order 5.

GAUDRON J:   Yes.

MR BASTEN:   Yes.  Part of that is dealt with in paragraph 2 of our outline of submissions in the matter, because we note that, in some respects, the relief may not properly be sought by way of a notice to show cause.  But, what your Honour says is correct in relation to so much of it as is properly undertaken by way of order nisi.

GUMMOW J:   But your ultimate objective is to have the 75(v) matters dealt with by us at the same time as we deal with the appeal, is that right?

MR BASTEN:   Yes, your Honour, on the basis that if we are wrong in thinking that the Federal Court’s jurisdiction was properly invoked, we nevertheless seek relief on the same grounds within the original jurisdiction of this Court.  We would think it inappropriate that this Court would need to reconsider, in a procedural sense, at a preliminary stage, whether the arguments were arguable.  The grounds have succeeded before four judges unanimously in the Federal Court; we would have thought that was at least arguable.  The question of the characterisation of the errors has been dealt with fully in this Court already on the appeal.

GUMMOW J:   Justice Hayne refers you to Order 55 rule 4.

HAYNE J:   Rule 4, at least on one view of it, suggests that you can move in the Full Court without direction from a single Justice under 55 rule 2.

MR BASTEN:   Yes, we are happy to ‑ ‑ ‑

HAYNE J:   But then are you moving for order nisi?  Because if you are moving only for order nisi ‑ ‑ ‑

MR BASTEN:   No, no.  I think I simply reiterate what I said to his Honour the Chief Justice, but, no, that is so.  If we are here we are here and we would hope that the matter could be dealt with without procedural ‑ ‑ ‑

GAUDRON J:   Well, you simply move on the notice of motion.

MR BASTEN:   Yes.

GAUDRON J:   But that still says show cause.  You may need to amend that.

MR BASTEN:   All right, well, if we could have leave to – what we have said in the outline of submissions is that it may not be appropriate to – that the relief sought under 75(iii) may require an originating application in this Court, too.  If that were thought necessary with a statement of claim then we would do so, but we seek a waiver of that procedural requirement if that were thought to be otherwise applicable.

GAUDRON J:   Well, all of these seem to be good reasons why one could deal with the appeal to finality to a point where it could be ascertained, at least, whether any of this is necessary.

MR BASTEN:   Yes.  That is so.  Yes, we would agree with that proposition, your Honour.

GLEESON CJ:   All right, thank you, Mr Basten.

MR BASTEN:   Yes, thank you, your Honour.

GLEESON CJ:   Yes, Mr Keon-Cohen.

MR KEON-COHEN:   If the Court pleases, may I address the issue raised in the last few minutes.  Does the Court have the document that we have filed which is in the matter Israelian in the proposed order nisi matter and it is headed, “Prosecutor applicant’s submissions”.  I understand from a discussion with the Registrar on Friday that it was circulated.

GLEESON CJ:   Yes.

MR KEON-COHEN:   Your Honours, you will see there the materials filed in both matters by my client, Israelian, in the appeal and in the original jurisdiction.  In the order nisi proposed proceedings the position is as we have just described.  There is an order nisi, there is an affidavit in support sworn by my instructing ‑ ‑ ‑

GLEESON CJ:   You mean there is an application for an order nisi?

MR KEON-COHEN:   An application for an order nisi, I am sorry.  There is a notice of motion seeking to bring on for hearing and determination of the application that an order nisi issue, and as has just been discussed by Justice Gaudron, perhaps that should be amended or added to to require that the order absolute be brought on for determination.  Then there was a notice of a constitutional matter and I understand there has been no responses.  That touches upon the order nisi grounds which go to 75(iii) and 75(v) and there have been written submissions and a list of authorities.

GLEESON CJ:   We will hear tomorrow morning what Mr Tracey says about this but it was my understanding that he has come prepared to meet applications for final relief under section 75(v).

MR KEON-COHEN:   Yes, your Honour, that is as I heard my learned friend this morning, with the caveat that he may wish to file written submissions later on, if he is given leave to do that.

GLEESON CJ:   Yes.  He mentioned, and Mr Basten mentioned, that there might be something in Aala, for example, that might have a bearing on it, to which they would wish to respond.

MR KEON-COHEN:   And, your Honour, perhaps it is useful whilst we are on this topic to clarify it this way, if you look at those, if you like, three items listing grounds, that is to say, the original appeal, the notice of contention which seeks to add grounds and the order nisi, it comes down to this that in the appeal we have the fundamental issue under 430 as it relates to 476(1)(a) and the issues touched on there.

Secondly, in the notice of contention, that is mentioned, plus three others, not authorised under 476(1)(c), error of law under 476(1)(e) and proper exercise of power in so far as that ground of review is available, in so far as there is, if you like, a residual element available, taking into account 476(2) and 476(3)  ‑ ‑ ‑

GLEESON CJ:   All this based upon an underlying contention, whether it is right or wrong, that the Tribunal failed to deal with your social group.

MR KEON-COHEN:   Yes, your Honour, and the first thing I wish to do is to indicate that Justice Hayne’s comment that this is a “two group” case is correct and, secondly, to take the Court to the materials in the appeal book in Israelian, to put the proposition that my learned friend is incorrect when he says, and that Justice Emmett in dissent was incorrect when he says, that there was only one straw in the wind to found a threat of persecution and to found an inquiry or an attempt to understand what is the nature of the social group alleged.

GLEESON CJ:   All right, well, perhaps you can do that tomorrow morning ‑ ‑ ‑

MR KEON-COHEN:   Your Honour, could I just finish with the final list of grounds which is the third process, if you like, before the Court, which is the 75(v) order nisi?  There are two extra grounds added to those I have mentioned so that we end up with a total of seven, as I count them up:  constructive failure to exercise jurisdiction under 414, 415 and failing to take into account relevant considerations and, seventhly, failure to exercise jurisdiction conferred by the Act.  That is the totality of the three processes.

GLEESON CJ:   We will adjourn until 10.15 am tomorrow morning.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 16 NOVEMBER 2000