Pollocks v MIMA

[2002] HCATrans 173

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M81 of 2001

B e t w e e n -

MICHAEL ANGELO POLLOCKS, CATHERINE POLLOCKS, CHRISTINA POLLOCKS, MARY POLLOCKS and MYLES POLLOCKS

Applicants

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 MAY 2002, AT 10.41 AM

Copyright in the High Court of Australia

MR A.F.L. KROHN:   May it please the Court, I appear for the applicants.  (instructed by Pushpa Hettiarachi & Associates)

MR A.L. CAVANOUGH, QC:   If the Court pleases, I appear with my learned friend, MR P.R.D. GRAY, on behalf of the respondent.  (instructed by the Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Krohn.

HAYNE J:   This is an even factually harder case than Tedella, is it not?

MR KROHN:   In some respects that is correct, your Honour.  In my submission, this case raises two main questions about the manner in which this Tribunal below did its work and the way in which tribunals in general should operate.  The first relates to the power which may be enlivened as an obligation to take corroborative evidence when that lies to hand.  In relation to that, I simply draw your Honours’ attention to the passage quoted in the applicants’ reply at page 82 of the application book, A passage from his Honour Justice Merkel’s judgment in Paramananthan.

GLEESON CJ:   Justice Finkelstein decided this case against your clients.

MR KROHN:   That is correct, your Honour.

GLEESON CJ:   That would tend to suggest that at least he saw it as raising an issue different from the issue in the case in which you talk of special leave…..granted.

MR KROHN:   I accept that that is true.  As your Honour the Chief Justice says, this was a case which his Honour Justice Finkelstein analysed differently.  It is correct that his Honour Justice Finkelstein did not advance the same considerations of want of logic or enter into the same discussion as he did in Tedella.  However, the Full Court in this matter ‑ ‑ ‑

GLEESON CJ:   In Gamaethige?

MR KROHN:   Yes, that is so, your Honour.  The Full Court in the present matter noted that his Honour Justice Finkelstein at first instance had engaged in quite extensive logical analysis of what it was he said that the Tribunal had done, the making of underlying findings and then drawing conclusions on the basis of those.  The Full Court considered it unnecessary to assess whether his Honour’s logical analysis was correct or not and rather approached the matter upon what might be said to be a fairly simply robust understanding of what is required by the obligation on the Tribunal to refer to evidence under section 430.

GLEESON CJ:   But in this case the Tribunal examined the detail of the story being presented by the applicants and, for reasons that the Tribunal gave, came to the conclusion that the story was implausible in a variety of respects.

MR KROHN:   That is so, your Honour.  The only thing that I can add to supplement the written submissions are perhaps these two propositions:  first, that there can be and is sometimes an important distinction between a finding which rejects the credit of an applicant or of a witness and a finding that a particular proposition or thing said by the witness is implausible.  In my submission, it is the second which occurred by the Tribunal here.  The Tribunal was saying, “Some of the things that you say are not plausible”.  It is true, as your Honour the Chief Justice said, that the Tribunal then explained that it thought, for example, that Mr Francis would not have heard within the space of an hour of the extent of damage and know that it was important for him to seek refuge somewhere.  Nothing is said by the Tribunal referring to the basis for that asserted implausible fact.

To that extent, in my submission, it comes back to the stronger area of logical flaw in Tedella because at the heart of the Tribunal’s decision there is a simple assertion that, without explaining by reference to any evidence about the situation in Colombo at the time, there are some things which are inherently unlikely or not to be believed.

GLEESON CJ:   In this theory about logical flaws, the word “logical” must be being used in a broad and rather inaccurate sense.  Nobody is saying there is the fallacy of an undistributed middle term here; nobody is saying the syllogism breaks down.

MR KROHN:   It has not been analysed in that way, your Honour, but I would submit that in both cases what is involved is ‑ ‑ ‑

GLEESON CJ:   Whether or not there is an error of logic, strictly speaking, is something about which it is impossible to disagree.  In other words, if there is an error of logic, that is capable of demonstration by pointing to the syllogism that is imperfect.  If it is possible for two minds to disagree, there cannot, strictly speaking, be an error of logic, can there?  Logic is a mechanical exercise.

MR KROHN:   In some cases there may be wide diversity between minds as to whether there is or is not a want of logic.

GLEESON CJ:   That is because when people say, “That process of reasoning is illogical”, what they usually mean is, “That process of reasoning is one with which I do not agree”.

MR KROHN:   Indeed, your Honour, and I am aware of ‑ ‑ ‑

HAYNE J:   Perhaps more often, “It’s one which gets a result I don’t like”.

MR KROHN:   Perhaps, your Honour, motives are frequently mixed and a criticism of a logical flaw may nevertheless be correct even though it agrees with one’s desires.  Your Honours, I am aware that there is strong judicial authority for the proposition just put that a complaint about logic is often nothing better than a complaint that, “I disagree with this and reasonable minds might disagree”, yet to characterise this strictly as a flaw of logic, in my submission, it comes down to a synthetic a priori, that is a synthetic proposition, one which is not simply analysing an entity into necessary predicates that must go with that entity but rather a process of reasoning that aims to get you from A to B and you must have some form of evidentiary or other foundation to make those steps.

The want of logic that is complained of here is that when one looks at what the Tribunal says, they come down simply to blind assertions about things of which it must be inferred the Tribunal knew nothing.  At least, there is nothing referred to in the Tribunal’s reasons beyond, in my submission, bald assertions of implausibility.  I think that is all I can usefully put to your Honours in relation to the logical flaw and the rationality aspect of the application.

In relation to the obligation of an inquisitorial Tribunal to exercise its power to take evidence, and in this case to take evidence from the other applicants when a question of belief of the central clan was at issue, I have referred your Honours as an example to his Honour Justice Merkel’s discussion of the incidence of an administrative tribunal.  I would simply put strongly that the Tribunal is not adversarial and, with or without legal advice, with or without a number of reasons why an applicant might or might not wish to call somebody, it is the Tribunal which is in charge of the process and the Tribunal that has the ultimate obligation to determine how it should go about assessing a claim.

If as in the present case there is a claim where obviously the evidence of some of the other applicants must either strongly corroborate or strongly undermine the claim, then, in my submission, it is a case where there is an obligation on the Tribunal to take that step and call that evidence.  Unless your Honours have anything further, they are the submissions in support of the application.  May it please the Court.

GLEESON CJ:   Thank you, Mr Krohn.  We do not need to hear you, Mr Cavanough.

The Court is of the view that the decision of the Full Court of the Federal Court is not attended with sufficient doubt to warrant a grant of special leave to appeal, and the application is refused with costs.

AT 10.50 AM THE MATTER WAS CONCLUDED