NAIS & Ors v MIMIA & Anor
[2005] HCATrans 651
[2005] HCATrans 651
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S73 of 2005
B e t w e e n -
NAIS
First Appellant
NAIT
Second Appellant
NAIU
Third Appellant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 30 AUGUST 2005, AT 3.22 PM
Copyright in the High Court of Australia
__________________
MR C.T. BARRY QC: May it please the Court, I appear for the appellants with my learned friend, MR B.M. ZIPSER. (instructed by Campbelltown City Lawyers)
MR S.J. GAGELER SC: If the Court pleases, I appear with MR G.R. KENNETT for the respondent. (instructed by Australian Government Solicitor)
GLEESON CJ: Yes, Mr Gageler.
MR GAGELER: Your Honours, can I say in accordance with what your Honours have said in recent cases it may be that the Refugee Review Tribunal ought be a respondent.
GUMMOW J: Yes, that is right.
MR GAGELER: In those circumstances, my instructing solicitor has instructions to enter a submitting appearance.
GUMMOW J: As the second respondent.
GLEESON CJ: Thank you. Do you want us to add the Refugee Review Tribunal as the second respondent?
MR BARRY: Yes, your Honour.
GLEESON CJ: All right. We will make that order.
MR BARRY: Your Honours, the issue in these appeals is whether the 4½ year delay between hearing the evidence of the appellants in relation to their claims of persecution and the decision refusing protection visas rendered invalid that determination by the Refugee Review Tribunal. We have three points that we wish to
argue in relation to the matter. I will just identify what they are and then if I may take your Honours to the appeal book to indicate how we say these points arise.
The first point is in relation to the significance of demeanour to the process that was being undertaken and in that respect we will be submitting to your Honour that Mr Justice Finkelstein, in the Full Court of the Federal Court, was correct in his analysis of the significance of that matter. He of course, as your Honours are aware, was in the minority.
The second point relates to what section 425 of the Migration Act requires. Your Honours will recall that section 425 has undergone some amendment but the short point is that if there is to be a hearing, and if evidence is to be taken, then one of the ordinary incidents of that would be that whatever facilities a decision‑maker has available to him, such as observing and seeing the witnesses, are an integral part of the process, and a four and a half year delay prevents that part of the process being effectively implemented. It really is related to the demeanour point.
The third point, which is of a more general nature, relates to public confidence in the administration of justice insofar as it relates to decision making of this kind. We will develop that point as we take your Honours through the sequence of events. I have already indicated there was a four and a half year delay and our submission will be in relation to that, that the principle that justice not only be done but must be seen to be done, has application in administrative law ‑ ‑ ‑
GUMMOW J: We are talking about efficient administration, I think. We are not talking about the administration of justice.
MR BARRY: We are, your Honour. In our submission, principles of that kind are also relevant in relation to appeals of this nature.
KIRBY J: Is not the logical way to start with the section of the Act. Is not that the way we should approach a statutory jurisdiction of an administrative tribunal and see what Parliament has provided and then the common law insofar as it survives, builds itself around the statutory provision.
MR BARRY: Yes, your Honour. But I would like, if I may, to identify what has actually occurred during the course of the way in which this matter was dealt with before I come to ‑ ‑ ‑
KIRBY J: There is no common ground on the delay period, is there? There is no dispute as to the facts but there is a dispute as to what is the relevant delay.
MR BARRY: There is. Our submission is the relevant delay in relation to the decision making is the delay between the time when the evidence, relevant to the issue of persecution was given and the decision was made, not the time between the final, as it were, adjournment for the purposes of writing a decision and when that decision was given.
Can I just take your Honours through the sequence of events and explain what we submit is the significance of various matters. The starting point is the time at which the application for review was made. Your Honours will find that at 79, line 45, as being 30 May 1997. The application was received by the Tribunal on 5 June 1997 - that is at 77, line 15 and then on 15 April 1998 the Tribunal invited the applicant to appear – that invitation is at 91 to 92.
HEYDON J: Is there any explanation for that delay?
MR BARRY: No, your Honour.
HEYDON J: That is very unusual, is it not?
MR BARRY: I will just find out. I cannot assist your Honour whether that is ordinarily the kind of delay that occurs or not.
GUMMOW J: Your client is upset, not by the delay, but by the adverse outcome. Did your client have a bridging visa during this period? What was the situation?
MR BARRY: The answer, I think is, yes. Is upset obviously by the outcome but, in addition of course, by the ‑ ‑ ‑
GUMMOW J: He was not coming along to complain and seek mandamus.
MR BARRY: I notice that argument. Seeking mandamus may not have been a realistic option for somebody in his position.
KIRBY J: Why would he complain? He has made an application. He has a visa. He is living in the country, so why would he complain. There is no incentive for him to do so.
MR BARRY: That is so, and the complaint of course about the result arises when having waited a significant period of time, on any view of it, to find out what is to happen to himself and his family, he then receives the notification that he received, which I will take your Honours to in due course. I indicated, your Honours, before that there has been an amendment to section 425. Section 425 was amended ‑ ‑ ‑
KIRBY J: Have you finished your chronology? It is not better to give us what the chronology is?
MR BARRY: I will take your Honours through it, yes.
KIRBY J: I am sorry, I do not want to take you off your track but it seems better to get the basic facts.
MR BARRY: Yes, as I indicated, your Honour, the invitation to appear was on 15 April 1998. The hearing was on 6 May 1998. Your Honours will find that at page 95. Could I just ask your Honours to note at line 27 on that page that there is recorded times as to what was taken for the purposes of hearing the evidence at about line 30 and it looks as if the whole of the proceedings during which the appellant’s evidence in relation to persecution occupied two hours and 25 minutes on that occasion and that was the subject matter of the findings that were subsequently made.
Can I then indicate, your Honours, what those findings were. There were a number of particular incidents which were relied upon in support of the application and there were findings then made in December of 1992 in relation to those particular matters. Can I take your Honours to those and explain the significance of them.
One of the complaints, or one of the matters that was complained about was that as a result of the inter‑religious marriage that the second appellant, the first appellant’s wife, was the subject of an attack. There is a finding in relation to that by the Tribunal when it delivered the decision at page 150 at line 8 and the finding was:
6. The Applicant, wife, was victim of an act of violence and she suffered a miscarriage following that incident.
So that was accepted but the qualification to it appears at 149 at line 15:
The Applicant, the wife, claimed that she was attacked on her way to church and that she later miscarried.
I accept that she was involved in an incident which caused her some trauma and that tragically she later suffered a miscarriage. However, having given consideration to the claims of having suffered harm for reasons of her marriage I do not accept that the incident was a consequence of her marriage to her husband but was for other reasons.
There are no other reasons identified and there are no other reasons that are apparent for the attack which was found to have occurred in the manner more or less described.
The second matter about which there was a finding, in a sense, in the appellant’s favour, related to the murder of a person in the vicinity of the appellant’s home in Dhaka. The first appellant said that he believed that the intended victim of that murder was him. The finding in relation to that is at 150, line 11 and it was a finding that:
A murder of an unrelated person occurred in the vicinity of the family home in Dhaka.
The way in which the Tribunal dealt with that when it gave its decision is at 149, line 26 where the Tribunal said:
Similarly, I accept that there was a person murdered in the vicinity of the family home in Dhaka and I also accept that this would have created concerns regarding safety. However, I do not accept that this was in any way linked to the marriage between the husband and wife.
The third matter which was accepted is at 147, line 36, and that involves the taking of the appellant’s daughter, that is, the third appellant, on at least one occasion for particular purposes. The finding is at 147, line 46. The Tribunal says in relation to her being taken away:
I accept that his behaviour –
that is, the uncle’s behaviour –
was inappropriate and that he had no right to take the child or to try to persuade her to embrace Islam. However, the “kidnapping” should be regarded in the context of a concerned uncle taking the child to his home without her parents’ consent and releasing her when they came to get her.
They are the matters about which there was acceptance. The matters about which there was rejection of the particular claims made related to a knife attack on the third appellant, the daughter. Relevantly, that is at 148, line 15. It starts with the heading “The Claimed attack on the Daughter”:
The Applicants [husband and wife and daughter] all claimed that there was an incident in which the daughter was confronted on her way to church and had a knife held to her throat.
At the Tribunal hearing the Applicant daughter, gave evidence in the presence of the parents and the representative and none made any comment on her statement.
In regard to this claimed attack I checked several times to see if she felt comfortable talking about it and she said she did. She displayed no signs of trauma or concern.
She said that as far as her memory served her she moved away from the claimed attack with no further consequences. She claimed that her mother had said to her just keep walking and that she did so.
I find it implausible that an attacker would take the drastic actions, claimed by the Applicants, to prevent a child from being baptised only to let the child walk away and take no further action.
Since the claim was that she was going to church and, at the hearing that she was going to be baptised, I am of the view that one of the two priests who claim to know the family personally and who wrote in support of the case would have referred to the claimed attack if it had genuinely occurred.
Although they make mention of hearing that the wife had been threatened after her marriage this was in 1984. If, as the Applicants have claimed, the daughter was attacked in 1996 I find that one or both priests would have mentioned this even if [it] was only hearsay.
There are two matters that we wish to identify in relation to that. The first is that the grounds for rejection were that the finding was that it was implausible that events would have occurred in the way they unfolded. The complete answer to that, in our submission, is that the mother called the bluff of the alleged attackers and kept moving as they did. The second point is that although reference is made to letters provided by two priests that made no reference to them, there was other evidence before the Tribunal, namely letters from a Regina Gomes at 48, line 10, and Elizabeth Rosario at 90, line 21, which corroborated the events that were described.
HEYDON J: What was the significance of those two points? We are looking for a jurisdictional error, are we not?
MR BARRY: That is so.
HEYDON J: Not a factual error.
MR BARRY: The significance is that when trying to identify what was the process of reasoning which led to the findings that were made, our submission is that that involves an analysis of the evidence – what there is to corroborate or not corroborate, including inferences that might be drawn from people who do not mention it, inferences that might be drawn from people who do mention it, and in this particular passage the significance that was placed by the Tribunal itself on matters of demeanour. The passage that I took your Honours to, the Tribunal said, “She displayed no signs of trauma or concern.”
Now, one must remember that this evidence was being given at what was described as a reopened hearing of the proceedings, which was in 2001. So it is plain that the Tribunal, in relation to that particular incident, was careful to watch and observe the way in which the daughter gave her evidence and relied upon that as part of the assessment of whether or not there were the well-founded fears which grounded the claims that were made. It is on that basis that I have taken your Honours to those particular passages.
The third matter which was rejected was the claim by the husband that he was attacked on the way to the bank. That was at 146, line 44. The heading starts at about line 43:
The Applicant claimed that he had been severely beaten and was bruised and bloodied when he was attacked at the bank.
At the time this claimed attack occurred the Applicant was living at the residence of his employer, a person who, by his account, was interested in and concerned with the family’s welfare and wellbeing.
However, he claimed that the employer was unaware of this incident and that he told her that he had fallen down.
I find this implausible and do not accept that he would have failed to inform her of the actual situation if it was, as he claimed. Given the Applicant’s [husband’s] demonstrated ability to fabricate together with the nature of this claim I reject it and give it no weight.
The reference to the fabrication was a reference to two other matters of evidence which, at the initial hearing, the first appellant gave evidence about, then shortly thereafter disclosed that he had given false evidence about those matters, one being that he was paraded around the village with a garland of shoes around his neck and the other that he had suffered a knife attack.
They were the, as it were, claims which were being heard and considered at the hearing in 1998. There was then, your Honours, the next event which relevantly occurred and that was on 30 November 2001. That is a period of some three and a half years after the evidence had been given in relation to those matters.
There was then a letter which was sent to the appellants which invited them to what was described as a reopened hearing. The letter your Honours will find at 105 and it is, in our submission, instructive in terms of the sequence of events in a number of respects. First is the obvious point, that it is dated 30 November 2001 and there is no apparent reason for the three and a half year delay which had occurred. The second is its content. The letter relevantly states in the first full paragraph:
The Member your case has been constituted to will shortly finalise the matter. However, as it is a considerable time since he heard your case he has decided to reopen the hearing and invites you to attend to provide any further issues you may have had since the hearing.
He instructs me to inform you that the purpose of this is only to consider new issues and not to repeat what has already been covered in the hearing.
Now, what occurred during the three and a half years, it appears, is that the Tribunal made its own inquiries. The significance of its making its own inquiries is that, given the issue that had to be determined, namely, whether or not the appellants had a well-founded fear of persecution for a Convention reason, it must have been the case that making the inquiries that were then made during that three and a half period was part of the process of assessment of what they had said or what they had claimed otherwise the decision could have been given within a short period after the evidence was given back in 1998, otherwise there would have been no point in doing what was done.
It appears that what was done during that period by the Tribunal was two things. The first there was obtained what could loosely be described as country information. Your Honours will find that at page 136 at line 36 where the Tribunal says:
I put to the Applicants that the Tribunal had undertaken investigations after the first date of hearing and had independent material before it concerning mixed marriages in Bangladesh.
Then it goes on and deals with the material that was obtained by the Tribunal from the Australian High Commission and was then put to them. Then it also ‑ ‑ ‑
KIRBY J: That was a year after the first hearing.
MR BARRY: That is so. In 1999 that information was obtained and, in addition to that, information was obtained from the United States report which apparently, I am told, comes out annually – I do not think there is any dispute about that – in relation to circumstances in Bangladesh and one will see that that is relevantly set out at 142, line 24. At line 47, the information from the US State Department Country Reports on Human Rights Practices 2001 states that:
Annual per capita income among the population of approximately 129.2 million is approximately $380 -
and it goes on and deals generally with circumstances in Bangladesh. At line 12 appears a short discussion of the significance of the Muslim religion in Bangladesh. It says:
The Constitution establishes Islam as the state religion but also stipulates the right – subject to law, public order, and morality -- to practice the religion of one’s choice, and the Government respects this provision in practice. However, although the Government is secular, religion exerts a powerful influence on politics, and the Government is sensitive to the Muslim consciousness of the majority of its citizens. Approximately 88 percent of the population is Muslim. Some members of the Hindu, Christian, and Buddhist minorities continue to perceive and experience discrimination toward them from the Muslim majority.
Further down, at the bottom of that page, is a reference to a decision by the High Court that ruled illegal all fatwas and then a few lines further down:
However, in practice village religious leaders sometimes make declarations on individual cases, calling the declaration a fatwa. Fatwas commonly deal with marriage and divorce, or mete out punishments for perceived moral transgressions. Victims are sometimes lashed, or shunned by their communities. While the Court’s intention was to end the extrajudicial enforcement of penalties by religious leaders, the January ruling declared all fatwas illegal and resulted in violent public protests. Several weeks later, the Appellate Court stayed the High Court’s ruling. No date has been set for re-hearing the issue -
That was one class of information that the Tribunal, apparently during this three and a half years, was gathering. The second class of information related to interviews with people that the Tribunal identified as being experts in relation to the matter that the Tribunal had to determine, namely, whether or not these people were entitled to protection. One finds that material at 138, line 5 where the Tribunal said:
I further put to the Applicants that the Tribunal had interviewed three people concerning the situation of mixed marriages in Bangladesh. These people were Mr Gamma, a former president of the Bangladeshi community in New South Wales, Dr Mukajee, an expert on Bengal and the issues in that regard and Dr Rosario a sociologist who was herself Bangladeshi.
At those interviews Mr Gamma stated that he, as a Muslim was married to a Christian lady and when they married he was ostracised by the Bangladeshis. However, when asked how he became president of the Bangladeshi community he stated that he was elected to this position in an open election and that they were aware of his marriage to a Christian.
I put to the Applicants that this could lead me to conclude that Bangladeshis were not overly concerned with the concept of mixed marriage or they would not have elected a person in such a marriage to the position of president.
The second person, Dr Mukajee stated that he had never been to Bangladesh and got his information in regard to mixed marriages from the media.
I put to the Applicants that the Tribunal had been unable to find any reference to mixed marriages in the media and the Australian High Commission had not been able to either.
That, your Honours, purports to be a summary of what was the result of the second aspect of the Tribunal’s inquiries. It appears from what is at 113 that what the Tribunal in fact ascertained was something quite different from what was put to the appellants.
At page 109 one sees the start of the transcript of the interview with Dr Mukajee and Mr Gamma. Can I just take your Honour to questions that were asked and what the evidence actually was in relation to the relevant issue of persecution. At 113, line 10 this question was asked of Dr Mukajee by the Tribunal:
RF Dr how frequent are mixed marriages in Bangladesh
M Not very frequent. It’s among, you see my first hand knowledge also is involved here because I know of mixed marriages among the academics but they’ve all fled the country. One of them works in Royal Bank and i/a college, a Hindu married a Muslim girl. He was in prison, false charges, now he lives in Washington in fact he’s retired from all that, he’s my age, he now lives in Washington.
RF Your view of how frequent they are is based upon the newspaper reports
M Yes and on personal knowledge of people, yeah, but that’s true that most mixed marriages are when people have married, while they are students, a Hindu married a Muslim girl. He was boycotted by both families and eventually the marriage broke up. There are all kinds of others apart from that. There is tremendous social pressure.
And at line 41:
RF What are the likely consequences of a Muslim man marrying a Hindu woman?
Of course, that question is of only peripheral relevance because in this case the marriage was between a Muslim man and a Catholic woman.
M Well in, depends on where you are, if you live in a village situation you have no life at all, in fact your life can be threatened by both sides, especially the Muslim side in Bangladesh. You’ll be similarly, the same thing will happen if you’re farther down in India, the Muslim life would be threatened. In the city among the intellectuals, among the other so-called ?? there are some couples, but they live a life which is not, they definitely want to get out, you meet up with them in London, Washington, New York something like that, not in downtown Calcutta. That’s exactly what you get. That’s not famous people who are so famous people can’t touch.
Then at page 114, line 23:
M Well, in the village, in Bangladesh now, the Muslim community will certainly seek out the person to be punished because they have committed something, a sinful act for which there are specific punishments in the ? and you have to follow that and that could be flogging, the minimum would be flogging, public disgrace and then reconversion to Islam, or conversion of the woman to Islam.
CALLINAN J: Mr Barry, that may all sound very persuasive and credible but there was evidence the other way, was there not, and are we not looking for some jurisdictional error?
MR BARRY: There was no evidence the other way ‑ ‑ ‑
CALLINAN J: Well, what about at page 137, the information that came from the Australian High Commission, paragraph E?
MR BARRY: That was information, as we would put it, in relation to general circumstances whereas the evidence that was being considered and the evidence that was given related to what actually had happened to these people at a village level and then when they moved into Dhaka.
CALLINAN J: Yes, but the evidence you have just read to us is said to be evidence of the general situation with respect to marriages between Muslim people and people of other religions.
MR BARRY: That is so.
CALLINAN J: The evidence you have just read to us does not relate specifically to these appellants.
MR BARRY: It was said to be evidence that had been collected by the Tribunal for purposes of the assessment of these appellants’ applications.
CALLINAN J: Yes, but so is paragraph E on page 137.
MR BARRY: It is, but it is ‑ ‑ ‑
CALLINAN J: That means it is a question of fact.
MR BARRY: It does involve an analysis but the analysis ‑ ‑ ‑
CALLINAN J: No, is it not a question of fact? No matter how persuasive we might think that evidence is and no matter how persuasively you might put it, the Court does not have jurisdiction to find the facts differently if there was evidence – and there does seem to be – upon which the finding could be made that in general there was not a problem about these sorts of marriages. It does not deal with your clients’ specific personal situation.
MR BARRY: No, and the point that I was seeking to make was that the purpose of the rehearing was said to be in effect to update what was happening. The Tribunal said it put certain matters for the appellants to deal with but what was put was not what in fact was the true position. The record, which I have taken your Honours to, identified what it was said that Dr Mukajee had said. Our point is that as a matter of procedural fairness, the appellants were not given the opportunity of dealing with this material which I am taking your Honours to now.
CALLINAN J: You submit that it was put inaccurately and incompletely. Is that what you are saying?
MR BARRY: That is so, and there is material – and I will just complete this section:
that would be maximum penalty that you can get. The minimum thing that could happen is that nobody will attend your wedding, nobody, they’ll boycott it, so you won’t get services, like from the washerman, from the barber, from the shops, you may not get your shopping done and no‑one will speak to you, and then nobody will give you a job. So it just adds up gradually and just becomes impossible. In the city situation depending again which class you come from if you are the middle class then undoubtably you are relatively free from this kind of pressure –
and on it goes ‑ ‑ ‑
HEYDON J: But this, Mr Barry, does not seem to be part of the notice of appeal or part of the written submissions. My understanding was that special leave was granted in relation to a problem about this gross delay. We seem to have swung away from that.
MR BARRY: No, because what has happened ‑ ‑ ‑
HEYDON J: We are under the heading “Demeanour” at the moment.
MR BARRY: What has happened is that as a result of the gross delay there was not, in our submission, a proper determination by the Tribunal of the applications. A proper determination would have involved observing the witnesses, hearing what they say, making an assessment of them, then at a time when that process could be undertaken in a useful and meaningful fashion then looking at other material of this kind.
HAYNE J: Implicit in the proposition cast in terms of delay, if we can take it back to the Act which might be a useful place to begin, it seems to be the proposition that is advanced that the obligation under 425(1)(a):
the Tribunal:
(a) must give the applicant an opportunity to appear –
et cetera, is conditioned upon that opportunity being reasonably proximate to the completion of the review.
MR BARRY: That is so.
HAYNE J: Notions of delay do not otherwise march across the stage, do they, unless you have first taken that step?
MR BARRY: That is our submission in relation to what I identified as our second point. That is what section 425 implies.
HAYNE J: Why is 425, do you say, to be read as conditioned in the way I have identified?
MR BARRY: Because you read section 425 with section 420 which, although not mandatory, gives an indication as to the process which is contemplated should be followed. Section 420:
Refugee Review Tribunal’s way of operating
(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
The process here, in our respectful submission, cannot be described as fair, nor just. We do not know about economical. It was certainly informal but one thing it certainly was not was quick. If you read 420 with 425, 420 gives you the objective – we concede that because of the word “objective” it is not a mandatory requirement – but then 425 if it does say in effect that evidence is to be taken, our submission is that for that to have any meaningful use it means that the evidence has to be reasonably contemporaneous with the decision making.
HAYNE J: That seems to be a proposition that might be said to find support in notions of procedural fairness, namely that if procedural fairness requires giving a hearing, the hearing itself must be reasonably proximate to the decision otherwise that which is given is not a relevant hearing, a hearing that is related to the decision that is to be made.
MR BARRY: That is the submission on our second point, what I referred to shortly as the section 425 point. I will just give your Honours the other references in this material without reading it. At 115, line 35 to 45 there is the other material from the Tribunal’s experts in relation to the matters indicative of persecution. At 116 there is an important answer:
In fact, marrying somebody without getting the woman converted to Islam is suddenly an act of apostasy, yes.
Then there is the material in Mr Gamma’s evidence at 118 from line 40 and line 55, at 118A at line 15 and at 118E at line 12 to line 20.
So, in our submission, if that material was going to be used, there would be no objection to its being used, but it needed to be used properly and it needed to be used contemporaneously. I have already made the submission that the inquiries were undertaken because the Tribunal was, during this whole period, engaged in the process of assessment. Can I take your Honours to what was said by Mr Justice Finkelstein in the minority in the Full Federal Court. It starts at 182, line 49:
It is, however, clear that the enquiry was taking place in 1999 and, for reasons which will soon become apparent, may have extended into 2001. At all events, the enquiry was being undertaken at that point because the tribunal had not formed the view that the appellants’ claims should be disbelieved.
That matter was conceded. Next sentence:
So much was expressly conceded (and correctly so) by counsel for the Minister.
So that was the purpose of the inquiry that was then undertaken. I have indicated, your Honour, that the sequence, as far as we have got, that is 30 November 2001 which was the invitation to reopen. I have taken your Honours to what occurred during the process of the reopening. It included some short evidence. It included some evidence from the third appellant and including some drawings and the like. I have taken your Honours to the finding in relation to that.
The decision then was reserved after that process occurred in December of 2001. It appears that a further submission was sent in by a representative of the appellants in March of 2002. The submission is not reproduced nor does the appeal book reveal why it occurred, but some further submission was put in. Then at 155, line 14 your Honours will see the decision itself:
The Tribunal affirms the decision not to grant protection visas.
It is dated 20 December 2002, and it was handed down on 14 January 2003, a period in the order of four and a half years after the evidence was taken.
In our submission, in the Full Federal Court what was said by Mr Justice Finkelstein was correct. Relevantly his Honour’s judgment in that regard appears at 188 at 26 to 27. His Honour there says:
In the first place it is the duty of the tribunal to determine the truth of asserted facts, analyse the law applicable to those facts and determine the case in accordance with the law as interpreted and applied to the facts. If the tribunal purports to undertake this task without regard to important evidence because it has been forgotten or seeks to resolve difficult questions of fact without taking into account the demeanour of witnesses when that demeanour is important then it is not carrying out its proper function. Indeed, for the tribunal to proceed in these circumstances would be for it to act in abuse of its power.
That is what I identified as the demeanour point and then at page 190, line 6, his Honour asked the question:
Was the tribunal in a position to discharge that obligation four and a half years after the appellants gave their principal evidence? I have no doubt that the answer is in the negative. The opposite conclusion is simply fanciful. Were it not for the second hearing, I even doubt that the tribunal would have recognised the appellants if it ever saw them again.
So our submission in relation to the demeanour point is that demeanour is contemplated as an integral part of the process of evaluation and that was something that simply could not be done four and a half years later. Our point in relation to ‑ ‑ ‑
KIRBY J: Demeanour is involved but is it limited to demeanour? Is it not the whole process of decision making as the Act contemplates; that a decision-maker will make the decision, which is an administrative decision, with fair promptness, not only because of the general objectives of the Act but because the evaluation of a case passes from the mind unless it is done quickly and it is not just demeanour. Different judges have different views about the importance of demeanour. I am a bit sceptical about it but I do not doubt the importance of the evaluation of the whole circumstances of the case as part of the process of decision making which is committed by law under the Act to the Tribunal.
MR BARRY: With respect, we agree with your Honour, but we would say two things. Firstly, the demeanour is in the integral part of the decision‑making process contemplated by the fact that the statute requires the opportunity for a hearing, point number one and point number two, the significance of demeanour in relation to a particular proceeding depends upon the nature of what it is that is being considered. If the nature of the question is human response, human emotion, are these people in fear, why are they in fear, what happened to them, is what happened to them something which tells me something about whether or not the fear is well‑founded? They are, in our respectful submission, quintessentially matters where demeanour would assume a very large role in part of the process.
KIRBY J: It is unfortunate for you Justice McHugh is not here, because he is the great proponent of demeanour. But even if demeanour is not quite as significant as it used to be, it is still a relevant factor as Fox v Percy and other cases say. But I am just a little anxious that you are hitching your flag entirely to the ship of demeanour, because as far as I am concerned it is a factor, but it is better, it would seem to me, for you to hitch your flag to the statute which contemplates a hearing and a decision, and a decision is one that is made by a human being with multiple decisions to make, that has to be made with a fair degree of promptness or the whole impressions and reflection on the case that comes from the hearing is really lost.
MR BARRY: I put the three propositions, but not on the basis that they were mutually exclusive and I, with respect, adopt what your Honour says that we do not just say absence of demeanour, we simply say that it is part of the process of giving people a hearing. It is what the statute required and on this occasion it could not effectively be done in the way it was done in these proceedings.
That is all I wanted to say about the demeanour matter in the section 425 point. I should indicate, your Honours, that section 425 was amended in 1998. The relevant amendment changed the wording slightly. It changed the wording from the “give the applicant an opportunity to appear”. The new wording was, “invite the applicant to appear before the Tribunal to give evidence”. That was an amendment that was made by the Migration Legislation Amendment Act 1998. It was assented to on 11 December 1998, and by proclamation it came into force on 1 June 1998. Could I hand your Honours a copy of the Migration Legislation Amendment Act which did those things.
Relevantly, we say it does not make any difference. The reason we say that is because there nevertheless remains an obligation imposed by the statute, and the obligation nevertheless remains to provide the opportunity of evidence to be given, and again to give full force and effect to that it requires the consideration of the matter in the way that your Honour Justice Kirby identified.
The final submission we put is in relation to a matter which is touched upon by Mr Justice Allsop in NIB Health Funds Ltd v Private Health Insurance Administration Council (2001) 115 FCR 561.
GLEESON CJ: Do you have the right reference there?
MR BARRY: I have, (2001) 115 FCR 561.
GLEESON CJ: Thank you.
MR BARRY: This was a case involving matters where material was before ‑ ‑ ‑
GUMMOW J: We have recently looked at it in another case we had.
MR BARRY: The particular passage that we rely on is at paragraph 84, a bit further down, at the second sentence it says:
To a degree, as the last sentence of the passage shows –
referring to Kioa v West –
the necessity to disclose such material in order to accord procedural fairness is not based on answering a causal question as to whether the material did in fact play a part in influencing the decision, but rather on the appearance of a fair hearing and the maintenance of confidence in the administrative process and judicial review of it.
We submit that this is by reason of the delay a case where that principle applies in addition to what we have said about section 425 and the significance of demeanour. Those, your Honours, are our submissions.
GLEESON CJ: Thank you, Mr Barry. Yes, Mr Gageler.
MR GAGELER: Your Honours, most of what we want to say has been said in writing. In relation to the orally‑raised point about Dr Mukajee’s evidence as put to the applicants at page 138 not being a fair summary of what was said by Dr Mukajee at page 113, there are two responses. One is that not only is it not in the notice of appeal to this Court at page 166, it was not in the notice of appeal to the Full Federal Court at page 193, but more substantively the transcript of Dr Mukajee’s evidence that your Honours see at page 113 was annexed to a letter at page 108 to the legal adviser to the applicants and that legal adviser, your Honours will see from page 107, was in fact present at the hearing.
At page 141, line 20 – your Honours have already been taken to this – apparently a new adviser came into the picture and put in a submission on 15 March 2002, a few months later, and it was there that one had the two letters from the Catholic priests, no doubt sent in in response to the evidence of the nature given by Dr Mukajee.
CALLINAN J: Mr Gageler, I am sorry, just one matter I wanted to ask you about. At the foot of page 117, line 50, “Please take a seat”. To whom is that addressed? Do we know?
MR GAGELER: Page 117, line 50, your Honour?
CALLINAN J: Yes, right at the foot of the page, “RF Please take a seat.”
MR GAGELER: No, I do not know, I am sorry. I will see if I can find out.
CALLINAN J: It is not one of the appellants, is it?
HEYDON J: It is addressed to Mr Gamma, is it not, who was first referred to on page 109, line 9. We have Professor Mukajee, Mr Gamma and Mr Patel, and thereafter Mr Gamma is G.
MR GAGELER: Your Honour is probably right. The actual initials “RF” are more likely than not the Tribunal member, Mr Fordham, at page 120.
CALLINAN J: Thank you.
KIRBY J: Mr Gageler, we have to get down into the mine but there is a landscape here and the landscape is one of the most outrageous delays that I have ever seen in public administration of the Commonwealth. The question is: is this the sort of hearing that the Parliament of Australia has contemplated? These are delays of a French order, not the usual order that we have. These are the sorts of things that go to the European Court of Human Rights against France. They are not the sort of things we normally have in Australia. It just seems to have stepped outside the tolerable bounds of an Australian hearing and frankly I am surprised that the Commonwealth does not say so.
MR GAGELER: If your Honour wants me to say that the delay here was inordinate and regrettable, I am prepared to say that, but I am not prepared to say ‑ ‑ ‑
KIRBY J: Yes, but then you do not give it effect. We have to look at this as to how it looks and how it is to the community and to the person who is the subject of this so-called hearing – decision.
MR GAGELER: Your Honour, I do not seek to excuse the delay. I seek to defend the decision from jurisdictional error and, your Honours, can I ‑ ‑ ‑
HAYNE J: Do you say there is no jurisdictional error or do you say that relief is to be refused on discretionary bases?
MR GAGELER: I say there is no jurisdictional error. If your Honours were inclined to revoke the grant of special leave, if that is what your Honour is referring to ‑ ‑ ‑
HAYNE J: I was looking at particularly paragraph 27 and following of your submissions where it seems that discretionary considerations were being invoked.
MR GAGELER: No, your Honour, that is not discretionary at all. I do not take any discretionary point. If your Honours find jurisdictional error, then the decision is set aside. That is not our point.
HAYNE J: Do you not press the last two and a half lines and first line and a half on pages 9 and 10 of your submissions?
MR GAGELER: I am nearly with you, your Honour. Could you identify those passages again?
HAYNE J: The last two and a half lines of page 9, the first line and a half of page 10.
MR GAGELER: Those are arguments that were made as a matter of principle, your Honour. We do not press them as a reason for refusing relief in this case if your Honours found jurisdictional error.
KIRBY J: If I can say so, that is a very proper stance, because to suggest a person in the position of the applicants to be rushing around getting mandamus is just unreal.
HEYDON J: Really, the whole of paragraph 27 goes, does it not?
MR GAGELER: No.
HEYDON J: The Justice Hayne passage is integrally linked with the first part of paragraph 27.
MR GAGELER: Your Honour, it is a misreading of a point that I thought was worth making in the submissions to take it as a submission directed to the discretionary withholding of relief in the present case. That is not the point. The point is that if one accepts that as a matter of implication there is a duty on the part of a decision-maker generally to make a decision within a reasonable time ‑ ‑ ‑
GUMMOW J: It goes to your paragraph 25 at the top of page 9 and it all becomes clear.
MR GAGELER: Thank you, your Honour. Yes, that is all I was trying to say. The proper remedy in those cases is mandamus, to compel the decision to be made. The proper remedy is not usually to set aside the decision when made on the basis of jurisdictional error. That is all we would seek to say, your Honours.
KIRBY J: That may be for the ordinary case, but this is certainly not in my experience the ordinary case. I have been watching the AAT and its progeny since their inception.
MR GAGELER: It is not an ordinary case. The delay is inordinate. The delay is regrettable. It is not a delay that gives rise to jurisdictional error. Now, your Honours, I note the time, really what I want to say will probably take no more than five minutes.
GLEESON CJ: It is all right, we will sit on.
MR GAGELER: Yes. Your Honour, let me say this, that we fully accept that the existence of a delay between the hearing and the making of a decision forms part of the factual matrix within which one – when I say “one”, a court – comes to scrutinise the decision in fact made by the Tribunal. We fully accept that as a matter of common experience the longer you leave it the harder it gets and the possibility of delay creeps in with the passage of time. We therefore accept that a heightened degree of scrutiny is, as a matter of proper judicial approach, warranted the longer the delay.
We understand that to be nothing more than the approach that is taken, not as a matter of law, but as a matter of common sense, by courts in cases where there is an appeal by way of rehearing from a decision of a judge where there has been inordinate delay. The delay itself is not a ground. The delay itself forms part of the circumstances within which one has a close look at what has been done.
HAYNE J: In this context, page 8 of your submissions, there would be a breach of natural justice if the delay “denied an interested party a proper opportunity to present his or her case”.
MR GAGELER: We would accept that, your Honour. We would accept that it is possible that delay could give rise to jurisdictional errors of a number of kinds.
HAYNE J: Because “proper opportunity to present his or her case” involves proper in the sense of useful to the decision-maker.
MR GAGELER: Yes, your Honour. What we dispute is that delay without more constitutes jurisdictional error and we dispute that delay without more gives rise to a presumption of error. Let me say something very briefly about the scheme of the Act and then about this decision. There is in section 414 no doubt a duty imposed on the part of the Tribunal where an application is made to conduct a review. That is a duty that arises by implication every time you have a decision that is to be made upon application. Doubtless there is a duty to make that decision within some reasonable time. All we were seeking to say, and it was really my point in the written submissions, was that relief for breach of that duty is ordinarily mandamus to compel the decision to be made. Now, we fully accept that.
We fully accept that section 425 when it refers to a hearing for the adducing of evidence is referring to a hearing where the evidence adduced, to the extent relevant, is to be given proper, genuine and realistic consideration in the decision to be subsequently made. If there is an implication to be made, we fully accept that implication.
What we dispute is that there is some additional implication as to timing to be drawn out of section 425 itself and we dispute that in part because the implications to which we have already referred seem to be sufficient to cover what might reasonably have been contemplated on the part of a fair‑minded Parliament in enacting legislation of this nature, but also because section 420, your Honours, speaks directly to timing amongst other things and section 420 in speaking directly to timing amongst other things was considered in Eshetu in this Court and it was said to be facilitative, not restrictive, so timing is dealt with but in a way that is not jurisdictional. That language I have drawn from your Honour the Chief Justice and Justice McHugh’s judgment 197 CLR 611 at paragraph 49.
So, in our submission, one does not get out of the scheme of the Act itself any jurisdictional limitation that would result in the invalidity of the decision by reference solely to time, nor does one, in our respectful submission, get it out of any notion of procedural fairness, which again we accept is to be implied into the scheme of the Act. It is not part of a hearing rule. It is not part of the bias rule, and if there is some overriding principle that one draws from the rules of natural justice, it is one of avoiding practical injustice.
Again I borrow your Honour the Chief Justice’s language in Lam 214 CLR 1 at paragraph 38, and delay per se again, in our respectful submission, does not give rise to practical injustice. It may, but one needs to have a close look at the reasons of the Tribunal. Where one does have a close look at the reasons of the Tribunal, you cannot find a problem, and that is why this appeal, which has wound its ‑ ‑ ‑
KIRBY J: Yes, but they are the product of a mind that has been contaminated by a very long period of time and therefore the applicant for whom this is a very important issue loses the opportunity of a mind that is affected by submissions, representations, argument, appearance in the court, demeanour, justice, assessment, all of those things. It is the process that is wrong.
MR GAGELER: Your Honour, let me repeat. There may be, because of (a) a problem that emerges, I fully accept that, but when you look at this decision it is a meticulously put together decision and there is simply an inability on the part of the applicants through several stages of the appellate process to put their finger on anything that is actually wrong with the decision.
KIRBY J: It is a meticulously prepared decision which has not the benefit of contemporaneity or near contemporaneity.
MR GAGELER: Your Honour, that may result in ‑ ‑ ‑
KIRBY J: It sounds as though you are arguing a discretion at the end of the process.
MR GAGELER: No, no, no. I am just asking your Honours to look at the decision. If your Honours find error in the decision that is of a jurisdictional nature, your Honours would set it aside. But if your Honours look at the decision taking into account the delay that has occurred and your Honours cannot find error of the traditional nature, then that is it. The mere delay does not give rise to the jurisdictional error. That is the only point.
If your Honours look at the decision itself, what you see is, at pages 128 through to 135 of the appeal book, you see a pretty much verbatim account of the first hearing on 6 May 1998 which means that the Tribunal must have been working from a recording, from a transcript or some extremely extensive notes. You then look at pages 136 through to 141 and you see the same verbatim account of the hearing on 19 December 2001, again transcript or ‑ ‑ ‑
KIRBY J: Yes, but it is all reconstructed years after the event. It is not ‑ ‑ ‑
MR GAGELER: Well, your Honour says reconstructed. If there was something to indicate that what was recorded did not reflect what actually occurred ‑ ‑ ‑
KIRBY J: We do not know whether he took the advantage of reading or listening to the recording.
MR GAGELER: We do not.
KIRBY J: I do not think that should necessarily be assumed.
MR GAGELER: Nor should it be assumed that something has been overlooked which could be proved by evidence.
KIRBY J: I would have thought he would have said that he – to explain this gross delay. There is neither apology nor explanation.
MR GAGELER: I accept that, your Honour, and I cannot give you a reason for the delay. But having set out the evidence so meticulously, you come to the reasons, and I will not go through the reasons, your Honour. We have attempted to analyse those in our written submissions. Demeanour does not come into it except in one place, and your Honours have been taken to that, page 148 at line 20, which is in relation to the daughter at the second hearing, more recent, more proximate to the decision. I will not say more but, your Honours ‑ ‑ ‑
KIRBY J: You cannot emphasise the proximity of the hearing, the second hearing and the decision. The whole story is really ‑ ‑ ‑
GLEESON CJ: Mr Gageler.
MR GAGELER: Yes, your Honour?
GLEESON CJ: My memory might be playing tricks with me, but I thought that we had a case, and it may have only got to the special leave stage, concerning the District Court sitting at Newcastle. I cannot even now remember whether it was a civil or a criminal case. I think it was a civil case. Newcastle or Gosford, I forget which, but there was a long delay. It was an appeal for an appeal or an application for special leave to appeal to this Court from the Court of Appeal of New South Wales. Could you just have a look and see if there is any decision of the Court of Appeal of New South Wales?
HEYDON J: I think the case is Hadid v Redpath (2001) 35 MVR 152, and the Full Court in Western Australia considered all the authorities it could find up to 2004 in Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273.
MR GAGELER: Thank you, your Honour. We have given your Honours a relatively recent reference in the Court of Appeal to Monie v The
Commonwealth of Australia [2005] NSWCA 25. That is quite a good distillation of the authorities in that area.
KIRBY J: The parties have helpfully collected some overseas Canadian and English authority. If there are any writings on this subject, there must be scholarly writings on when does delay constitute jurisdictional error. You would think there would be.
MR GAGELER: We have not found any. It has been suggested to me there may be something in the European human rights jurisprudence, your Honour.
KIRBY J: There have been a lot of cases in that, mostly from France where they have delays of five years. We do not normally have that in Australia.
MR GAGELER: And what is the result of that, your Honour, that they get set aside.
KIRBY J: I am afraid so.
GLEESON CJ: You get due process cases in the United States, do you not?
MR GAGELER: Yes, we had a look at those and it is hard to extract a meaningful or analogous ‑ ‑ ‑
GUMMOW J: The due process is pretty slow if you look at death row.
HAYNE J: Then there are the capital cases from the Caribbean as well.
KIRBY J: French cases, of course, do not have to grapple with the mysteries of jurisdictional error, a matter that I am never quite sure when it exists. It is like an apparition. It just appears and disappears like a ghost, like Hamlet’s father.
MR GAGELER: It is not here, your Honour.
GLEESON CJ: Thank you, Mr Gageler. Yes, Mr Barry.
MR BARRY: Just a couple of points. In our submission, delay is a more serious problem with administrative decision making than it is with judicial decision making because in the case of judges, one hopes that the process of their background and training is different from administrative decision making.
GLEESON CJ: I am not sure about that. My recollection of that Court of Appeal case that we looked at was that the judge in the District Court did not have a transcript. It may be that the facilities for recording evidence are better in the Refugee Review Tribunal than they are in the District Court of New South Wales. As you know, in that court, unless a case goes more than about a week or so there is not going to be any transcript of the evidence.
KIRBY J: But I think the point you are making is that at least with a court you have rights of appeal on the merits to courts of appeal which have a large power, whereas here you do not, and therefore the plaintiff really suffers the disadvantage of having to try and squeeze itself into jurisdictional error which is ‑ ‑ ‑
MR BARRY: And you have better trained decision‑makers which means that the rigidity in terms of rules of procedural fairness, in our submission, should be higher in relation to administrative decision‑makers than judicial decision‑makers because you need to make sure they get the process right. If they do not get the process right they have no chance of getting the result right.
GLEESON CJ: Do we know whether in the Refugee Review Tribunal as a matter of routine they record the evidence in some particular fashion?
MR BARRY: I will ask Mr Zipser who knows more about it than I do.
CALLINAN J: One of the judges on appeal said something about that.
MR BARRY: Mr Zipser tells me they do record it.
GLEESON CJ: What, audio?
MR BARRY: Audio, yes.
GLEESON CJ: As in Magistrates Courts in New South Wales?
MR BARRY: I do not know what they do in Magistrates Courts.
GLEESON CJ: Well, I do from sitting on the Judicial Commission for 10 years. Everything that goes on in the Magistrates Court is sound recorded.
MR BARRY: Yes.
KIRBY J: A new peril to judicial life.
GLEESON CJ: In Hong Kong it is all video recorded and you can actually buy a tape or you can buy a video of your cross-examination.
MR BARRY: If that had happened ‑ ‑ ‑
GLEESON CJ: If you did not go too well you could buy all the videos.
MR BARRY: If that had happened my demeanour argument may not be as strong as it otherwise it might be. That is one point I wanted to make in relation to administrative decision-making. The second is in relation to delay. In the case of delay it may be possible in some cases to actually demonstrate positively that this is what the result is. Mr Justice Finkelstein in the minority of the Full Federal Court, in our submission, has done this because he said you would have expected a finding in relation to demeanour. There is no finding. The absence of such a finding indicates that in that respect the process miscarried in relation to demeanour.
We would put that and we would also say that in relation to delay it becomes a question of drawing a line. At some stage the inference must be drawn that given the amount of time that has been taken and given the sequence of events, the only inference that could be drawn, bearing in mind the nature of the process that was required to be undertaken, was that the process has miscarried, and we say this is such a case.
We reject the argument, or we invite your Honours to reject the argument that it must follow that you have to be able to demonstrate some particular identifiable error no matter how long the delay is, but a case such as this, the inference, we submit, is overwhelming that the process has miscarried simply by reason of the amount of time that passed. Those are our submissions in reply.
GLEESON CJ: Thank you, Mr Barry.
CALLINAN J: Justice Hill says at page 174 that the proceedings are taped, the proceedings of the Tribunal.
MR BARRY: Yes, your Honour.
GLEESON CJ: We will reserve our decision in this matter and we will adjourn until 10.15 am tomorrow.
AT 4.37 PM THE MATTER WAS ADJOURNED
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