NACB & Anor v MIMIA

[2004] HCATrans 358

[2004] HCATrans 358

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S580 of 2003

B e t w e e n -

NACB AND NACC

Applicants

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 14 SEPTEMBER 2004, AT 2.11 PM

Copyright in the High Court of Australia

MR R.W. KILLALEA:   I appear for the applicant, your Honours.  (instructed by Rob Makin & Associates)

MR J.D. SMITH:   If it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Killalea.

MR KILLALEA:   Your Honours, it may be in the course of questioning that reference might be made to some other material.  Might I pass your Honours a second bundle of material in anticipation?  My friend has a copy.

GLEESON CJ:   Thank you.

MR KILLALEA:   Your Honours, the two special leave questions are identified in the applicant’s summary of argument.  Could I take your Honours to the first of those questions.  I will just repeat that question and add a little more detail on the end of that.  The principal special leave question is whether judicial review of an administrative decision is available where the requisite satisfaction of the decision‑maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds.  If I may add this, your Honours, more particularly, what are the criteria to be addressed when the decision is impugned for jurisdictional error based on such findings?  That is the case in this matter. 

What was alleged in the Full Court below in the Federal Court, if I can take your Honours to the application to the Federal Court – it is at folio 24 of the application book.  If I can take your Honours to folio 25, the second page of that, and ground 4:

The decision under review was made in usurpation of, or excess of, jurisdiction and is reviewable on the grounds of:

(a)      jurisdictional unreasonableness –

I can take your Honours to that reference in BC v MIMA, but that goes to the concept of reasonableness review which came out of the obiter dicta of his Honour Justice Gummow in Minister v Eshetu, where his Honour at paragraph 145 said words to the effect that judicial review is available where there are no logical grounds or probative material to support a decision. 

That was in the context of a decision purported to be made under section 65 of the Migration Act 1958. Such a decision under that section provides essentially that where the Minister is satisfied as to certain things, then the Minister must grant a visa, or, if not so satisfied, must refuse to grant.

His Honour Justice Gummow was concerned to consider whether or not that satisfaction must be arrived at reasonably as a matter of law.  In the obiter dicta, his Honour indicated that, of course, in many instances it would be very difficult to draw a line between cavilling with facts and getting to a point where one could say that facts have been arrived at in error of law.  His Honour said at paragraph 145 it may be otherwise different where there were no logical grounds or probative material to support the decision.

The error of law was raised in the court below at paragraph (a) and in the alternative at paragraphs 4(b) and 4(c).  On the same particulars, which are set out at paragraph 4(a), the applicant said that there was: 

[a] failure, or constructive failure, to attain jurisdiction, or . . . 

failure, or constructive failure, to exercise jurisdiction –

Can I take your Honours to the notice of appeal at folio 41.  I take your Honours to ground 3 of that:

In respect of His Honour’s findings. as above, His Honour should have held that the RRT’s decision was wrong for the reason that its decision was based on findings or inferences of fact that were not supported by probative material or logical grounds and was, accordingly, reviewable on the grounds of:

(i)       jurisdictional unreasonableness

(ii)      failure or constructive failure to attain jurisdiction; and/or

(iii)     failure or constructive failure to exercise jurisdiction.

I have taken your Honours to those grounds of appeal because it must be the case if the applicant is to succeed where he alleges illogicality or lack of probative material in impugning a decision ‑ ‑ ‑

McHUGH J:   But that in itself is a problem, is it not?  I know the Full Court regarded what was said by the Tribunal as illogical.  Speaking for myself, I am not convinced it is.  What the Full Court says fails to take into account the advantages that the Tribunal has in seeing and hearing these witnesses and the other findings of fact adverse to your client. 

For instance, the Tribunal found that the letters produced by the first applicant were fabrications, that the story that the applicant’s son had witnessed the meeting between the Russian and Chechen soldiers was a fabrication.  The Tribunal rejected the first applicant’s evidence that she had failed to raise the claim about fear of persecution from the Russian authorities in her original application because she was in a state of shock. 

Now, these are all matters that the Tribunal was entitled to take into account when it said it was self‑evident that if the applicant genuinely believed this and expressed such views in the letters she claimed to have written to the Commandant’s office, this would have been relevant to her original claims.  How is it illogical?  You may disagree with it, but I cannot see how it is illogical.

MR KILLALEA:   I submit, your Honour, that it is a fair reading of the Tribunal’s decision.  If I could take your Honours to folio 18, the impugned passage begins there at about line 5, “It is self‑evident”.  I submit that that is the finding of the Tribunal, “It is self-evident that if the Applicant genuinely believed this”, and so on.  The point your Honour raises, as I understand, arises in the following paragraph, but I submit that those findings of the Tribunal merely follow from its prima facie position set out in that passage:

It is self-evident that if the Applicant genuinely believed this, and expressed such views in the letters she claims to have written to the Commandant’s office and the Prosecutor‑General’s office, this would have been relevant to her original claims that she and her son were being threatened by the Chechens.

Of course, if it was self‑evident and it was the case, then it must be the case – then it would follow that she is telling lies about writing letters to the Prosecutor‑General and suchlike.  I submit that, properly read and properly understood, the critical passage and the one which sets the tone and the basis for what follows – and that takes up the point your Honour has raised with me – that is in that passage, “It is self‑evident”.  It is an unequivocal statement that she would have ‑ ‑ ‑

McHUGH J:   It is not, is it?  It is not a statement concerning her; it is a statement of what the Tribunal thinks is a proposition.  The Tribunal says:

It is self‑evident that if the Applicant genuinely . . . expressed such views . . . this would have been relevant to her original claims –

Not that she would have known it was relevant to her original claim, but this would have been relevant.  However, if you look at page 53 of the book, the Full Court seems to say this:

was an important error in the logic adopted by the RRT in framing its reasons –

That is at paragraph 21 and refers back to paragraphs 19 and 20.  When I read that, I must say I found it by no means self‑evident that it was an error of logic.  I mean, you might disagree with it, but I do not see what logic has to do with it.

MR KILLALEA:   I would submit that the passage can properly be understood in this way, that when the Tribunal has found it is “self‑evident”, the Tribunal is relying upon hard evidence rather than a perception of the applicant per se, and that evidence must stand on its own.  Now, whatever evidence it is that the Tribunal has relied upon, I submit that there is no evidence to support a finding that it is self‑evident.  As to matters of credibility, if they could be considered separately from that ‑ ‑ ‑

McHUGH J:   But it is not a question of self‑evidence.  It is a proposition.  It says: 

It is self‑evident that if the Applicant genuinely believed this, and expressed such views . . . this would have been relevant to her original claims –

Well, it is, is it not?  Is it not self‑evident that if she genuinely believed that it would have been relevant to her original claims?

MR KILLALEA:  Not to her original claims, your Honour, because her original claims were that they were being persecuted by Chechens because her son had killed a Chechen commander in escaping.  She had been approached over the telephone by Chechens, she had been attacked by persons she understood to be Chechens, and, so far as she was concerned and so far as her son was concerned at that time, it was the Chechens who were after them. 

They have come to Australia and some two years later – in the period coming up to two years later when the matter came before the Tribunal, she has received letters – two letters from her girlfriend and one from her mother, in late 2001 and early 2002 – which indicate to her and her son in their discussions between themselves that it is not the Chechens who are after them, it is the Russians.  Until they realised that, there was nothing in it for them in their original claims to say that her son had seen Russian officers contacting Chechens.  It was just simply irrelevant, with respect, your Honour.

McHUGH J:   Except the way the Tribunal seems to have used it was that she makes a claim, first of all, that her son has been threatened by the Chechens, and then she comes to the view, because of these letters written to the Prosecutor‑General’s office, that it was someone else, because they wanted her to send these letters off so that she could be murdered, or they could be murdered, and then the Chechen rebels would be blamed for it.

MR KILLALEA:  Yes, that is what they claim to understand.

McHUGH J:   Yes.

MR KILLALEA:  But, with respect, your Honour, if the Tribunal’s view is that it is self‑evident and it is not self‑evident, I submit there is no logical ground or probative material supportive of that finding and it colours the rest of the decision‑making.  What the Tribunal fails to do is to address the claims made, that is, “We are being persecuted by the Russian authorities”.  Their Honours in the Full Court, having accepted that there was an error of logic, an important error of logic, have then said at folio 55 in paragraph 29, the third line:

Nor does the want of logic which has been identified in the present case sound a “warning note” of the type referred to in Epeabaka (at 422) as to whether there was only a purported, and not real, exercise of power by the RRT.

McHUGH J:   One question is, what is meant by “this” in the passage which is condemned as being illogical?  Is it a reference back to the letters to the Procurator’s office or is it to her belief that military officers were in constant contact with the rebels, that they provided them with weapons and ammunition and that the authorities had an interest in a visible tension in Chechnya because this justified the creation of strong leadership or re‑animation of totalitarian power?

MR KILLALEA:   As I understand your Honour’s question, what is the want of logic, I understand that to be – if I can take your Honour back to paragraph 19, folio 53, and the particular point which is impugned in both the Federal Court below and the Full Court, in the close of paragraph 19:

It is by no means self‑evident that she would have referred to the meeting in the original application.

In paragraph 21:

There was an important error in the logic adopted by the RRT framing its reasons in the terms quoted.

I submit that that manifestly goes back to what is set out there at paragraph 13, the indented passage which picks up and begins with “It is self‑evident”.  That was the logic of the Tribunal in refusing or declining to consider the claim which was put before it, that is, “We are at risk of persecution from Russian authorities”.  The Full Court, in referring to Epeabaka, has given no reasons as to why the want of logic – having identified it as being an important error, has given no reasons why it does not sound the warning note, the Epeabaka warning note, but that warning note is no more than a warning that there may have only been a purported and not real exercise of power.

I submit in this case that if one looks to what has happened, there has been no consideration – no consideration – of the claim of Russian persecution.  There was nothing put to the Tribunal in terms of alternative claims.  The applicants anchored themselves on the claim that they were being persecuted by Russian authorities, and that claim was not heard.  It was not heard, I submit, because the Tribunal formed a view it was self‑evident that the applicants must be lying, because they would have done something else if they had not been.  There was no evidence, no logic, which compels that conclusion.

McHUGH J:   Well, the Tribunal went on to find that the letters from the girlfriend dated in June 2001 and from the applicant’s mother in February 2002 were fabricated to suggest a spurious interest in the applicant and her son on the part of the police and the Procurator’s office, and to suggest that the Russian authorities were complicit in the persecution which the applicant and her son now claimed, which they had not originally claimed.

MR KILLALEA:  But no evidence, no logic, to compel that conclusion, unless one begins with a premise that it is self‑evident that you would have said certain things at the time you made your first claim.

McHUGH J:   Well, except that the Tribunal took the view that these matters were fabricated.

MR KILLALEA:  The credibility of the applicants was not impugned, save in respect of those matters following upon their change of heart.  The Tribunal accepted so much of what they put, and that is set out at folio 19.  There is so much of what was accepted.  There is no suggestion in any of that that, in any general sense, the applicants were anything less than credible.  The only thing that the Tribunal took issue with was the change of story.  Well, the change of story was explained, and the Tribunal’s basis for not accepting that and not considering that claim was that “It is self‑evident you would have raised this before”. 

With respect, I submit to your Honours that the Full Court was correct.  That was an important error in coming to that conclusion, and it is a critical error.  In terms of the special leave question, the Full Court having identified – in its own terms, at least – what was an important error, it must be seen, with respect, as an error going to the heart of the applicants’ claim.

McHUGH J:   You have a change of story to a story that itself does sound inherently implausible, that the applicant says that she now believes that she and her son were never genuinely threatened by the Chechens.  She believes now that the people whom she now claims to fear wanted her to make a written complaint to the police so that there was evidence that she and her son had been threatened by the Chechens, so that if they were murdered by these people whom she feared it would be easy to say that the Chechens had killed them.  It does not sound a very plausible story for starters, particularly when it is a change of story.

MR KILLALEA:  If I heard your Honour correctly, I think your Honour perhaps drew something from the Tribunal’s hearing which I had read and I submit to the contrary.  She wrote to the relevant Procurator‑General’s office complaining about what had happened to her son in service.  There was nothing indicated in the material to suggest that she was encouraged to do that in order to make out a certain position; rather, she wrote and complained because of the things that happened to her son, because he was serving in the fascist army, and because he had seen Russian officers dealing with Chechens. 

So she had put that forward as a mother, and what has come back to her, as she realised later when she got the letters from Russia in late 2001 and early 2002 – what she came to realise was that it was not the Chechens who were after them, it was the Russian authorities and the Russian authorities happily promoting the subterfuge that it was the Chechens who were after them.

In some senses, it is not a simple story, but when one looks at it I submit it is plausible, the whole scenario is plausible.  The only thing that the Tribunal has taken issue with is, “Well, you have changed your story”.  His Honour Justice Lindgren said it is a recently invented story.  With respect to his Honour’s judgment, that conclusion was open if you accepted there was a lack of credibility in the applicants, but the only basis upon which lack of credibility was demonstrated was on a presumption that you would have done something, that is, you would have raised the later claims earlier ‑ ‑ ‑

McHUGH J:   That overlooks the fact that the Tribunal sees applicants.  It is not a question, as the Full Court said, of whether it was a reasonable

submission.  That is not really a relevant matter for the Full Court, whether it was a reasonable submission, is it?

MR KILLALEA:   With respect, your Honour, if the Tribunal had said that the evidence was contradictory, the evidence put was confusing, the applicant was evasive, then I could appreciate your Honour’s point, but there is nothing, with respect, in this to suggest that the applicants were anything but credible.  They, in a sense, have been turned down on a technical approach, and I submit that that approach, the finding of “self‑evident”, grounded the ultimate result.  There was no logic to it and there was no probative material.  Those are my submissions, your Honours.

GLEESON CJ:   Thank you, Mr Killalea.  We do not need to hear you, Mr Smith.

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is dismissed with costs.

We will adjourn for a short time to reconstitute.

AT 2.32 PM THE MATTER WAS CONCLUDED