Minister for Immigration v Jia

[2000] HCATrans 162

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P34 of 1999

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Applicant

and

JIA LE GENG

Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 14 APRIL 2000, AT 2.29 PM

Copyright in the High Court of Australia

MR R.R.S. TRACEY, QC:  If the Court pleases, in this matter I appear with my learned friend, MR P.R. MACLIVER, for the Minister.  (instructed by the Australian Government Solicitor)

MR H.N.H. CHRISTIE:  If the Court pleases, I appear with my learned friend, MS A.E. HANLEY, for the respondent.  (instructed by Legal Aid Western Australia)

GAUDRON J:   Yes, thank you, Mr Tracey.  We think it might be appropriate to hear first from the respondent in this matter, Mr Tracey.

MR TRACEY:   If your Honour pleases.

GAUDRON J:   Mr Christie, are you ‑ ‑ ‑

MR CHRISTIE:   Yes, your Honour.

GAUDRON J:   Yes, thank you.

MR CHRISTIE:   Your Honour, the respondent’s case is that this application for special leave does not involve any real question of law, much less the question of law of general importance.  What the applicant managed to ‑ ‑ ‑

GAUDRON J:   It certainly involves a question as to in what circumstances an appellate court can draw inferences contrary to those drawn by the trial judge, does it not?

MR CHRISTIE:   Yes, your Honours, yes, it certainly does.

GAUDRON J:   In a context - which question has importance well beyond this present case.

MR CHRISTIE:   Your Honour, in my submission the question arises as to whether the principles in Warren v Coombes apply ‑ ‑ ‑

GAUDRON J:   Yes, well, is that so?  That does not help you resist special leave, does it, Mr Christie?  Because that, in turn, opens up a question as to the nature of an appeal to the Full Federal Court, does it not?

MR CHRISTIE:   Yes, your Honour.  That is whether an appeal to the Full Federal Court under section 24 of the Federal Court Act is the same as an appeal by way of rehearing.  Your Honour, in my submission there are three answers to why this is not an appropriate matter to proceed on a special leave application.  Firstly, there is no dispute in this particular matter, in my submission, that the majority justices, Justice Spender and Justice Nicholson, accepted the key passage in the case of the Minister for Immigration v Hamsher.  They both quoted that passage at appeal book, page 60, for Justice Spender and appeal book, page 104, for Justice Nicholson.  Secondly, both justices specifically determined that the trial judge had either mistaken or reached an incorrect view of the facts so that they met ‑ ‑ ‑

GAUDRON J:   Was that correct?  What they said was that he had erred in drawing that inference.

MR CHRISTIE:   Well, Justice Spender, your Honour, at page 56 of the appeal book, if I could refer your Honour to that, stated in paragraph  44, having quoted the conclusion of the primary judge stated:

In my respectful opinion, this conclusion crucially misstates the view of the Minister.

Then, in paragraph 47, again having quoted the passage from the primary judge again stated that this:

is not simply a case that the Minister had strong views about Mr Jia’s case:  the position was that the Minister’s statements reveal his view that Mr Jia was a person of bad character –

and at 48:

This is not an expression of a preliminary view, capable of alteration, nor the statement of a general rule subject to exception in the particular circumstances of a case.

GAUDRON J:   But at a later time, the Minister had before him, did he not, a Federal Court judgment which alerted him to the possibility that a person with a conviction could nonetheless be a person of good character?

MR CHRISTIE:   Indeed, your Honour, that was the finding of Justice Cooper.

GAUDRON J:   That was a matter of some significance in the judgment at first instance, was it not?

MR CHRISTIE:   Yes, your Honour.

GAUDRON J:   To what extent was it taken into account on appeal?

MR CHRISTIE:   In my submission, it was a matter that was open to the Full Court to reach a number of conclusions on because that judgment was, in fact, available to the Minister before he made any of his statements or, in the respondent’s submission, had formed his view of the matter in March and April 1997.  That judgment had been available to the Minister since it was given in December 1996.  Further, it was a judgment that the Minister had, in a sense, initiated a second appeal from because the matter had gone back to the Tribunal on other grounds.  The Tribunal had then reached the same conclusion and the Minister had commenced a further appeal alleging unreasonableness under the Wednesbury test and that was something that had been previously dealt with in Mr Justice Carr’s decision in the Federal Court in December 1996.

That matter was raised in the minute to the Minister of 23 April 1997 and the minute advised the Minister that it was unlikely that his appeal would be successful.  Notwithstanding that, the Minister still persisted in his wrong view of the law in his letter to the President of the Administrative Appeals Tribunal of 30 April.  Your Honours, in my submission, no clear cut conclusions can be reached that the Minister only had the decision of Mr Justice Carr.  Admittedly, it was amongst the papers that were delivered along with the minute of 6 June which was the basis of the decision on 10 June, but no clear cut decision can be reached that, first of all, he read that or that it changed his mind.

In my submission, the negative inference that one can draw from the previous material, particularly the statements in March and April and, of course, the fact that he did not give evidence, applying the principles of Jones v Dunkel, enabled the Full Court quite properly to conclude that there was nothing that was before the court to indicate that it was a change of mind from the previous determination to remove Mr Jia from the country.  Your Honour, going back to the general principles that apply, I would submit, your Honours, that the principles of Warren v Coombes do apply to an appeal under section 24 of the Federal Court.  This was dealt with recently, and accepted by a five member Bench of the Full Court in the matter of the ACT v Badcock, which is No 4 on my list of authorities.  In paragraph 5 of that decision, Mr Justice Einfeld states that:

The Territory’s first complaint in this Court was that the Supreme Court misunderstood its function and undertook the wrong exercise.  The appeal is said to be by way of a rehearing –

and broached the case of Rothwells v Entity Group.  Justice Einfeld notes that:

section 27 of the Federal Court of Australia Act 1976 is to identical effect –

through section 9 of the ACT Supreme Court Act and the court was asked to follow the same course.  Thereafter, the court applied the principles of Warren v Coombes in relation to the appeal.  They pointed out, in particular, that there was no ‑ ‑ ‑

GAUDRON J:   But let it be assumed that Warren v Coombes does apply.  This was not an inference that was irresistible, was it?  I mean, one can understand how Warren v Coombes might be applied by a Full Court where an irresistible inference had not been drawn.  But this was an inference to be drawn in all of the circumstances and was one that, as is clear from the course of these proceedings, might or might not be drawn, was it not?

MR CHRISTIE:   Your Honour, accepting that is the situation ‑ ‑ ‑

GAUDRON J:   It was one on which, in a sense, the applicant had the burden of proof in the court that it should be drawn, was it not?

MR CHRISTIE:   Yes, your Honour, but in my submission that is not the effect of Warren v Coombes.  The effect of Warren v Coombes is that if the court is satisfied, having assessed the matter itself, that the decision is wrong, not whether it is irresistible or not, but something ‑ ‑ ‑

GAUDRON J:   How could it be satisfied that it was wrong if it was an inference that might reasonably be drawn or might not reasonably be drawn?  If it was one about which minds really could genuinely differ.

MR CHRISTIE:   In my submission, whilst minds would differ, if it reaches the conclusion that its decision is correct and the opposite conclusion is wrong, then it is required under Warren v Coombes to make its own decision on the matter.

HAYNE J:   But that is to convert appeal from a process concerned with error to simply second hearing, second decision, and that is a point, I would have thought, of great importance in the administration of justice in the Federal Court of Australia.

MR CHRISTIE:   Well, your Honour, in my submission, that actually is the position, that it is for a Full Bench of three judges normally, or five, to reconsider the matter and, in relation to an appeal which is not restricted purely to a question of law as it is in many administrative law situations, that the court is indeed entitled, providing it is in the same position as the judge at first instance, to impose its own view as to what inferences are drawn from undisputed primary facts.  In my submission, that is exactly what has been held in Warren v Coombes and has been reaffirmed by the Full Court in the case of ACT v Badcock.

But, in addition to that, this was a case which the majority judges quite clearly considered that it was not simply a matter of where the opinions could differ.  They considered that properly drawing the inferences from all the available facts, that the primary judge had got it wrong and that there were inferences available which the primary judge had not drawn.  Your Honour, I have referred you to that passage that is from Justice Spender’s judgment in relation to Justice Nicholson – it is at page 104 of the appeal book going over to 105.  Sorry, at 104 his Honour quotes at the bottom of the page that it was approvable of the case of Hamsher, and over at 105 his Honour states:

In my opinion the inferences to be drawn from all the circumstances relied on for the appellant including particularly the respondent’s statement on radio on 14 April 1997 and his letter to the President of the Tribunal was that the respondent’s view had passed the point of strong prejudgment and reached the point where the respondent was precluded from consideration of all the relevant circumstances in relation to the appellant.

Then he cites five inferences that can be properly drawn and over on page 106 at paragraph  54, Justice Nicholson states, in my submission entirely correctly:

Conscious again of the heavy onus necessary to establish actual bias, I therefore conclude the primary judge failed to draw inferences which should have been drawn.

This is clear cut that he considered there were inferences to be drawn, that the judge had failed to do so and he imposed his own view on it in conformity with the principles of Warren v Coombes.  Your Honours, in my submission further, the decision of Hamsher is not authority for the proposition that Warren v Coombes does not apply.  Your Honours, if I can refer you to the much quoted passage at page 359 – 369 is the actual passage which is quoted by Mr Justice Nicholson at the bottom of the appeal book, 104, but that passage actually continues with the following sentence:

Where the majority judgment in Warren v Coombes states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected.

In my submission, I accept that that is the right proposition.

HAYNE J:   That may be contrasted with what was said by Justice Spender at application book 55 in paragraph  39, where his Honour identifies the “central question” as being:

whether the decision of the Minister that Mr Jia is not of good character…..is a decision made…..that was induced or affected by actual bias -

rather than stating the question as being, the central question is whether the trial judge was wrong to conclude that.  So, at least, it seems to me that the judges who constituted the majority may themselves have seen the appellate task differently.  True it is, they get to the same result, but they may have conceived the appellate task in importantly different ways.

MR CHRISTIE:   Yes, your Honour, although, of course, Mr Justice Spender does expressly agree with the approach taken by Mr Justice Nicholson.  He does not qualify.  He simply adds further reasons.  So, in my submission, Mr Justice Nicholson’s judgment can be accepted as the primary majority judgment.  I would simply refer you to paragraph  1 of Justice Spender’s reasons, your Honour. 

I have had the advantage of reading in draft form the reasons for judgment of R D Nicholson J.  I agree with them. 

He does not say that “I disagree with some parts of them”.  He simply says:

However, since I disagree with the primary judge as to the existence of actual bias…..I wish shortly to state my reasons ‑ ‑ ‑

GAUDRON J:   Yes, but it was not sufficient only for him to disagree with the primary judge’s finding, was it?  He had to find that it was wrong.  Now, the question is, was it open to him to find that it was wrong in the circumstances of this case, and if it was, was he right in finding it was wrong?

MR CHRISTIE:   Your Honour, in my submission, it was enough for him in the circumstances of this case to disagree with the primary judge’s decision because, in the context of this case, that meant that in his view the primary judge was wrong.  It is not a matter of, perhaps, a damages claim where you are sizing up whether to award $100,000 or $105,000.  In this case he clearly knew the conclusions reached by the primary judge was wrong and he came to a different conclusion.  It is not a case of where the standard is, and this is repeatedly pointed out by the judges of the Full Court

in Badcock, where the test is whether a judge was plainly wrong or whether it was open on the evidence.

Perhaps I could refer your Honours to those passages.  It is primarily in the judgment of Justice Hely at paragraph  51 and it is specifically supported by Justice Hill and Justice Drummond – Justice Tamberlin, as well, I think.  But at paragraph  51 of the Badcock decision, his Honour states he is concerned about certain statements made and he then restates the principle:

That principle does not require the appellant to establish that the Master was “plainly wrong”, nor is it…..sufficient that the evidence “is capable of supporting” the Master’s ultimate conclusion of negligence.

That statement is specifically agreed by Justice Tamberlin at paragraph 48 and by Justice Hill at paragraph 37.  Your Honour, in my submission, that is the correct test.  The majority of the judges, having formed the view that the primary judge was wrong, were entitled to impose their own view.  In this case, it is the same.  By having their own view, which is different to the judge, they obviously considered the judge’s view was wrong.  It may have been open on the evidence but they came to a different view.  Now, as to whether they were correct in that, or not, your Honours, is obviously a matter of going through the evidence.  In my submission, there are, in fact, five crucial matters which need to be taken into account ‑ ‑ ‑

GAUDRON J:   Yes, but I think your time has expired, Mr Christie.

MR CHRISTIE:   Yes, thank you, your Honour.

GAUDRON J:   Thank you.  Yes, Mr Tracey, we need not trouble you.  There will be a grant of special leave in this matter.  I take it this is a matter that can be heard comfortably within a day.

MR TRACEY:   Certainly, your Honour.

GAUDRON J:   Yes, thank you.  Call the next application, please.

AT 2.53 PM THE MATTER WAS CONCLUDED