SFLB & Anor v MIMIA

[2004] HCATrans 301

[2004] HCATrans 301

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A128 of 2003

B e t w e e n -

SFLB and SFMB

Applicants

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 12 AUGUST 2004, AT 9.28 AM

Copyright in the High Court of Australia

MR J.P. KEEN:   If it pleases the Court, I appear for the applicants.  (instructed by Refugee Advocacy Service of South Australia Inc)

MS S.J. MAHARAJ:   If it please your Honours, I appear for the Minister.  (instructed by Sparke Helmore)

McHUGH J:   Yes, Mr Keen.

MR KEEN:   Your Honours, this case raises two important issues of law requiring determination by this Court.  Firstly, what is the degree of satisfaction that the Minister or the Tribunal require before concluding that circumstances creating a well‑founded fear of persecution have changed to remove that fear.  The High Court has not looked at changed circumstances either under Article 1A or 1C of the Refugee Convention.  The second issue of law is whether there is a doctrine of legitimate expectation in Australian law and what does that mean.  Dealing with the first issue of change ‑ ‑ ‑

KIRBY J:   Do you need the second one?  I mean, your basic complaint, as I understand it, is that having told the applicant that it believed them the Tribunal then just completely changed its mind and, without further notice and giving them an opportunity to put their point of view on the matter, came back with a decision that said that they were not believed.

MR KEEN:   Yes, your Honour.

KIRBY J:   Is that the sequence of events?  Am I correct?

MR KEEN:   Yes, your Honour.  They did not accept our version of events or past persecution.

KIRBY J:   Is that not a natural justice point or procedural fairness point?

MR KEEN:   Yes, your Honour, it is a natural justice point.

KIRBY J:   Why are you infusing the rather controversial question of legitimate expectation?  This is just old‑fashioned – they said they believed, they then reserved, they came back and said, “We don’t believe”.

MR KEEN:   Yes, your Honour.

KIRBY J:   Without giving people the opportunity to put what they want to put on something which they took was accepted, it is just unfair.  It is as simple as that.

MR KEEN:   I accept that it is ‑ ‑ ‑

KIRBY J:   Why do you need to bring legitimate – that is quite a controversial question, you know.

MR KEEN:   Yes, I know.

KIRBY J:   I do not know if you have been reading the academic literature but ‑ ‑ ‑

MR KEEN:   That is what the Court can say in this case.  They can use this as a vehicle to say this may be a legitimate expectation ‑ ‑ ‑

KIRBY J:   Look, you want to get us to say about legitimate – you might get me to say it, but you are not too sure that you are going to get others to say it, so why do you have to pitch it so high?  Just pitch it at a winning point.  The point is that they effectively stopped them, as I understand the record.  They said, “Look, we believe you on this”, and then they came back with their reasons and said, “We don’t believe them.  They are not telling the truth.”

MR KEEN:   Your Honour, if the Court accepts that that is a natural justice point with sufficient prospects of success, then I accept that I do not need to ‑ ‑ ‑

KIRBY J:   Natural justice is a clear case of jurisdictional error, a breach of the rules of natural justice.  They actually came back and said:

The Tribunal finds that this aspect of the applicants’ claims has been fabricated –

having effectively stopped them earlier on, and said:

I do, I do believe what you have both told me.  I’m, I’m sure that you, you’ve told me the truth.

Unless I have the facts wrong, that just seems to be procedural unfairness.

MR KEEN:   Yes.

KIRBY J:   You do not need all the other stuff.

MR KEEN:   If your Honour accepts me on that, I do not need to ‑ ‑ ‑

KIRBY J:   I am just telling you my response.

MR KEEN:   Yes.  I believe it is a straight application of Aala and ‑ ‑ ‑

KIRBY J:   It is more Muin and Lie too, is it not?  Muin and Lie was about deciding a matter – admittedly that was on country reports, but the principle was the same.  You cannot decide a case on a point which is different from that which the party has reasonably considered to be the one that you are deciding it on.  That is just my reaction anyway.

MR KEEN:   Yes, your Honour.

KIRBY J:   Anyway, you develop your case as you want to develop it, because it may be that it does open up other issues.

MR KEEN:   Yes, your Honour.  Can I just deal with the issue of changed circumstances first and say that that is a matter which arises in the every‑day workings of the Tribunal and the Minister, as circumstances are changing in many countries today, including Iraq, Sudan and Afghanistan.  So it is an important point of law now and always will be.

KIRBY J:   Has that not been decided by the Court?  I mean, Afghanistan has been changing.  It has its ups and downs ever since I can remember.

MR KEEN:   Yes, the facts have, your Honour, but what is the principle of law about the degree of satisfaction that the court or Tribunal must have.  Now, the High Court in Chan said that you decide the issue or the circumstances at the time the application is determined, but the High Court in Chan did not decide what was the degree of satisfaction that was required, because Chan was not a case of changed circumstances.

KIRBY J:   Why would it be anything other than the civil standard of satisfaction?  It is just another civil case, is it not?

MR KEEN:   No, I do not think that in refugee cases it is the civil standard.  It is less than that.  It is a real fear of persecution which can be less than 50 per cent, your Honour, with respect.  This is an important issue.  If there is evidence of past persecution, Chief Justice Mason in Chan said that there is virtually a presumption, but his comments were definitely obiter, and as well as his Honour Justice Dawson his comments were obiter.

KIRBY J:   A presumption of what?  What did his Honour say, a presumption of what?

MR KEEN:   A presumption that there was a well‑founded fear of persecution.  If there is past persecution and then you have that finding and then you come to make the decision later, he says that there is a presumption of present persecution, unless there are compelling reasons to the contrary.  Now, that was just an obiter comment.

KIRBY J:   The problem is the “well‑founded”, is it not?  If circumstances change, does the well‑founded basis of the fear disappear?  For example, a person who was struggling for freedom or independence in East Timor who claimed refugee status and the matter was now before the court and East Timor has gained its independence and so on, well, you would say the basis of the fear has ameliorated and therefore it is not a well‑founded fear at the time of decision, or at least the Tribunal could find that.  Query whether the same would be said in Afghanistan given the fluid situation in that country.

MR KEEN:   That is why the Hathaway test, which admittedly was created for Article 1C, is a useful tool.  It says you look at how effective the regime change is, is it durable.  They are the elements in that test.  Whereas, presently, the Tribunal is just having a vague look at all the material and coming to their own conclusions.

KIRBY J:   That sounds like a merits matter.

MR KEEN:   No.  I am saying that the Court should give guidelines to the Tribunal and the Minister or say what is the presumption or burden of proof.

McHUGH J:   Courts do not give guidelines.  Every time I hear that expression my hackles rise.  We state legal principles or rules, or we state what circumstances can be taken into account.  We do not give guidelines.

MR KEEN:   I withdraw that phrase then, your Honour.

KIRBY J:   Some courts may treat our legal principles as guidelines.

MR KEEN:   I think it is more than a guideline.  I think, with respect, your Honours, you declare the law.  There is no appeal.  Well, to restate it, there should be perhaps a principle, a presumption or a degree of satisfaction which the Tribunal should go through when analysing change of circumstances.

McHUGH J:   But the common law has set its face against presumptions.  The common law was once riddled with presumptions about everything.

KIRBY J:   Justice Murphy did not agree with that approach.  He has been vindicated on that and other things.  Each case has its own circumstances.

MR KEEN:   I am not saying a presumption of facts, your Honour.  I am saying as a legal principle, the Tribunal, once that it has found there is past persecution, does it then say there is a presumption of present persecution and therefore protection, and “I need compelling evidence”, the Tribunal members will say.

McHUGH J:   But why?  Past persecution is only ever evidence of the prospect of there being a well‑founded persecution if the person is returned.  It does not establish anything.  It is just a mere evidentiary factor.

MR KEEN:   As Chief Justice Mason said in Chan, it does raise a strong presumption and, secondly, your Honour, in other ‑ ‑ ‑

McHUGH J:   If the circumstances are the same, it may be you just draw the inference.

MR KEEN:   But in other jurisdictions past persecution is a ground in itself of asylum.  Now, I am not saying that applies here, but it shows how important the issue is.  That is why we say that there should be guidelines – there should be a principle established by this Court.

KIRBY J:   Do not mention guidelines again.

MR KEEN:   I will not mention guidelines ever again.  I am going to go home and write that on my forehead.  So we say that something akin to the Hathaway test should be established by the Court.  There is a policy reason why there should be a higher degree of proof required, and that is set out by Chief Justice Mason in his comments in Chan once again.  He says because an applicant has left his country, how can he really tell what the current situation is.  He cannot provide real evidence on that.  So we say this is a matter ‑ ‑ ‑

KIRBY J:   Yes, but situations can get better and that element of the well‑foundedness can disappear in certain circumstances.

MR KEEN:   Yes.

KIRBY J:   When the war was over in Germany the well‑founded fear of the Nazi oppression had been lifted.  There will be clear cases but there will be unclear cases and transitional cases.  Afghanistan certainly is not a clear case.

MR KEEN:   What I am saying is how does the Tribunal work through those facts to come to the view ‑ ‑ ‑

KIRBY J:   But is that not, as Justice McHugh was suggesting, simply a fact‑finding matter unless they have posed an incorrect test?  Did the Tribunal in its reasons in this case pose for itself an incorrect test, in your submission, for coming to the conclusion as to whether the fear which was accepted at the time of departure was no longer well‑founded because of up‑to‑date country information?

MR KEEN:   It still used the well‑founded fear test, your Honour.

KIRBY J:   That is the correct Convention test.

MR KEEN:   It is, your Honour, but it did not ‑ ‑ ‑

KIRBY J:   What is the jurisdictional error then?

MR KEEN:   We say it did not accept that there was a presumption of a present well‑founded fear of persecution, and that is what we say should arise from a finding of past persecution.  This is the right vehicle for determination of this principle because the Tribunal found that the applicant wife was subject to past persecution.

McHUGH J:   But it just creates an artificial legal rule that would in many cases bear no relationship to the facts.  It is just similar to the presumption that operated for many years in the criminal law that a person intended the natural and ordinary consequences of his or her acts, and this Court said nearly 50 years ago that was wrong and routed it out of the law.  It is evidence.  What has happened in the past, if you do something in a criminal trial, well, an inference can be drawn that you intended to do it, but there cannot be any presumption about it.

MR KEEN:   We say that if there is not a structured way in which the Tribunal approaches this question of changed circumstances, they will lead themselves into error.

KIRBY J:   I am just doubtful that we could say very much on that point, because each case will depend on the peculiar facts of the particular country.  If you set up some sort of a structure, then that might interfere in considering all of the facts of the particular country.  You have what Justice Mason said.  The person has after all left their country, they have perhaps the fear, the subjective fear, and they have, as it were, proved what their fear was by leaving.  So that the situation must be shown to have changed from that situation.  That would be just about all that this Court could say, I would think.  That is just common sense.  It does not seem to be either a principle or a guideline, if I can use that expression.

MR KEEN:   As I said, this is a very important issue that arises all the time and there is no principle on how you judge changed circumstances.  So I say that this is a matter worthy of the High Court’s intervention.  Internationally, there is little law on it.  I do not know if your Honour has had a chance to read the article of Fitzpatrick where she basically refers only to the obiter comments of Chief Justice Mason in Chan as being the law on this subject in England and Australia, which shows ‑ ‑ ‑

KIRBY J:   Maybe that simply bears out Justice McHugh’s point that it is not a matter of law; it is just a matter of each decision‑maker, set up in different ways in different countries, weighing up the new evidence to see whether it subtracts the well‑founded element which is necessary for the definition.  One would think that if you are seeking to prove or show that the situation has changed, the person or body that asserts that has an evidential burden at least to establish that fact.

MR KEEN:   Yes, they do.

KIRBY J:   Does the Tribunal say anything different from that?

MR KEEN:   No, your Honour.  I can go on to perhaps my second point of legitimate expectation and I will now ‑ ‑ ‑

KIRBY J:   That is another way of saying procedural unfairness.

MR KEEN:   Natural justice.

KIRBY J:   This is the volte‑face point?

MR KEEN:   Yes, your Honour.  I hope you like my expression there.

KIRBY J:   Yes, I like a few foreign words thrown around as long as they are not Latin.

MR KEEN:   Yes, your Honour.  This, we say, is the right vehicle for determination of the natural justice or legitimate expectation question and the particular facts here have sufficient prospects of success.  As your Honour has accepted, we were misled.  We thought that our version of events and credibility were accepted.

KIRBY J:   Can I ask, that exchange that I read where the Tribunal said, “Now, I believe you, I really do.  I believe what you have told me and I am sure that you have told me the truth”, did that come at the end of the time where your client had had the full opportunity to put their case?  In other words, was there a real deprivation of a chance to elaborate a point which was later found by the Tribunal to have been fabricated?

MR KEEN:   Basically after that interchange the hearing stops and there is only formalities dealt with afterwards about “We will contact you later and” ‑ ‑ ‑

KIRBY J:   What do you say the Tribunal should have done?

MR KEEN:   If it was going to disbelieve us, as it did, it should have given us an opportunity to ‑ ‑ ‑

KIRBY J:   Fabricated, they said, made it up.

MR KEEN:   Yes, exactly.

KIRBY J:   False, lies.

MR KEEN:   And the word “not” is used in quite a few pages in the reasons of the Tribunal, saying he was not persecuted, he did not do this, so ‑ ‑ ‑

KIRBY J:   So that your contention is if they did after that hearing reach a different view, the least they should have done was to have sent a letter and said, “We have now read it all and we have changed our mind and what do you want to say about it?”, or, “We are worried about this or that, and what do you have to say about it?”

MR KEEN:   Yes, your Honour, that is the least they could have done.  That is a very simple denial of natural justice.

KIRBY J:   There is something in the Act, is there not?  We have been looking at it in the last few days.

MR KEEN:   Yes, 424A, I think, is the section.

KIRBY J:   Does that bite?

MR KEEN:   I do not think that bites here.

KIRBY J:   Why not?

MR KEEN:   Because that is about another ‑ ‑ ‑

McHUGH J:   It is about information.

MR KEEN:   It is about information, yes.  I think we rely upon the general principles of natural justice.  Section 424A is quite narrow.  The reason I suppose I have dressed this up as a legitimate expectation case is because on the natural justice issue it is a question on the facts which really would not warrant special leave.  The only reason ‑ ‑ ‑

KIRBY J:   Do not be sure of that.  We are here to do justice, as far as I am concerned.

MR KEEN:   Yes, and that is why I rely upon the justice of the case here, the second limb of special leave.

KIRBY J:   What did the Federal Court say about the volte‑face?

MR KEEN:   It was not examined there because it was before S157.  Before S157 natural justice, according to NAAV, was not a jurisdictional error.

KIRBY J:   So you need an extension of time and also the leave of the Court to raise new grounds that were not raised below, but you say the reason was that the then understanding of the privative clause provisions of the Act put you out of court and it is only after S157 that you were put back into court?

MR KEEN:   Yes, your Honour.  The reasons in Bhardwaj show that we should get an extension of time because if there was a jurisdictional error, there was no decision, so in many ways we do not need an extension.  We believe it is a clear case of a denial of natural justice and we should be granted that extension.

KIRBY J:   You had better say something in the last seconds that you have about the legitimate expectation.

MR KEEN:   The legitimate expectation is if the facts in Lam were a vehicle for discussing the doctrine of legitimate expectation, so must these.  This is a stronger case.  We were given this expectation that our facts were believed.  The law on legitimate expectation is at the crossroads.  Lam discredited Teoh.  We know what the views of Justice McHugh and Justice Gaudron and Justice Callinan are on that issue, but the views of the rest of the Court, and particularly your Honour was not on Lam or Teoh.  You may want to bring it back to life.

KIRBY J:   I may, indeed.

MR KEEN:   I think it is suffering at the present time.  It is on the operating table.  The question is whether there is any life left in it, and this gives an opportunity for Justice McHugh to sort of bury it forever.

KIRBY J:   I do not necessarily want to give his Honour that opportunity.

McHUGH J:   He wants to delay the decision for about 18 months, so I am gone.

KIRBY J:   Exactly.  I am counting the months.

MR KEEN:   To retirement.  Well, you can go out in style.  So I think it is definitely a doctrine at the crossroads as seen by the text.

KIRBY J:   What has happened in England about legitimate expectation in public law?

MR KEEN:   I cannot help you on that, your Honour.

KIRBY J:   You would have to if you came up to the Court.

MR KEEN:   Yes.  I would definitely do it if I got special leave, but ‑ ‑ ‑

KIRBY J:   All right, you have put your two points – three points, as we have made them.  The red light is on.

MR KEEN:   Yes.  I will not say anything about an extension of time to file our application.  I think that is in our affidavit.

McHUGH J:   We only want to hear you on grounds 6 and 7 of the draft notice of appeal, that is, the denial of natural justice.

MS MAHARAJ:   If it please your Honours.  In relation to that point, your Honours, it appears ‑ ‑ ‑

KIRBY J:   How can even you defend this, Ms Maharaj?  I mean, they say, “I believe you, I really do.  I believe you.  I think you have suffered like this”, and then they come back and say it is a fabrication without giving a chance to put the case on the matter which is found to be a fabrication.  That just is not fair, is it?

MS MAHARAJ:   Yes, your Honour, I accept that there is some force in the criticism that my learned has mounted in relation to the passage on page 17 of the transcript, but could I say this in relation to that, your Honour, that that statement by the Tribunal has to be seen in the context in which it was made.  It is true the Tribunal said that, “I believe the story that you have told, but by the way”, the Tribunal says, “we will have to consider the changed circumstances”.

When one looks at the Tribunal’s decisions, one sees that the Tribunal did accept the applicants’ story substantially and found on certain aspects that there was a general subjective fear of persecution.

KIRBY J:   But in the transcript, in any part of the transcript – we do not have the whole transcript – did they at any stage say, “But I have to tell you I am concerned that this is a fabrication”, or words to that effect?  Did they ever say that?

MS MAHARAJ:   No, your Honour.

KIRBY J:   What is your submission about that?  It just seems to me that what appears to have happened was that at the time the Tribunal was reasonably happy with the story and then they went away and maybe they read the papers more carefully, but in those circumstances procedural fairness would suggest that it should be put to the applicants so that they can put their best foot forward.

MS MAHARAJ:   Yes, your Honour.

KIRBY J:   That is what we are doing to you.  Why would that not be what the Tribunal has to do to the applicants?  These are very important decisions for applicants.

MS MAHARAJ:   As a matter of ordinary principle, your Honour, I cannot quibble with what your Honour has stated, that the Tribunal cannot in a particular case mislead an applicant as to what it thinks about a certain part of the story, but the question that I raise, your Honour, is the appropriateness of this vehicle to grant special leave, because when one looks at the decision itself one sees that the decision turns substantially on the changed circumstances in Afghanistan.  So the Tribunal’s decision was that because the government had fallen and the composition of the government was different there the circumstances have changed, that in any event there would be no persecution of these applicants upon return to Afghanistan.  So there are two issues that emerge, your Honour.  One is ‑ ‑ ‑

KIRBY J:   Yes, but a decision is a composite thing, as this Court said in the case of jury decisions in Domican, and if the decision is in part affected by a view the Tribunal finds this aspect of the applicants’ claim to have been fabricated, then the composite thought processes of the decision‑maker are affected by that ingredient.

McHUGH J:   And there may be an even more fundamental point, Ms Maharaj.  The accepted doctrine is the breach of the rules of natural justice goes to jurisdiction.  If there is a breach of the rules, it may be the jurisdiction of the Tribunal is spent, so that any decision is of no effect whatever.  If that is the case, why should the matter on the hypothesis not go back to the Tribunal to reassess the matter?

KIRBY J:   After all, that is all we do.  We do not decide the case.  We just correct the error, remove the error of jurisdiction and send it back to be redetermined uninfected by that jurisdictional error.

McHUGH J:   By hypothesis the decision was made without jurisdiction.  How can you support it by saying, notwithstanding they had no jurisdiction, nevertheless they reached the right conclusion?

MS MAHARAJ:   As a matter of principle, again, I cannot quibble with what has fallen from your Honour, that if a decision is found by your Honours to be tarnished by that sort of a natural justice or lack of procedural fairness then the decision is vitiated or infected, as your Honours have found in numerous other cases.  But I do query, your Honours, as to the appropriateness of this vehicle for grant of special leave because the principles have been well settled by your Honours as to when natural justice is breached when there is an instance of misleading.

KIRBY J:   Yes, but we are not only a court to settle high principles; we are also a court of justice. It is in the Constitution and it is in the Judiciary Act.  Therefore, if you see a very clear indication on the transcript of an apparent change of mood and opinion, then how can we just be blind to that fact?  These are people seeking refugee status, they have invoked the law of this country, they are in migration detention and these are very important decisions for them and for the Australian community.

MS MAHARAJ:   Yes, your Honour.

McHUGH J:   I would put it on a higher basis than Justice Kirby.

KIRBY J:   Justice McHugh always sees things on a higher basis.  I am just a practical, working judge.

McHUGH J:   …..could get most of the prerogative writs because there is a public interest in tribunals staying within their jurisdiction and not acting without jurisdiction.  If the Tribunal has acted without jurisdiction and it is a 75(v) officer involved, there is a public interest in ensuring that that person stay within jurisdiction.  In my view, there can be few cases that this Court could on discretionary grounds even say, “Well, you acted without jurisdiction, but nevertheless we are going to uphold the decision”.  There may be rare cases where because of delay and other reasons, as in McBain’s Case, but they have to be very rare.

MS MAHARAJ:   Yes, I think the point that is expressed by your Honour Justice McHugh, if I could call it a knockout point, in the sense that if your Honour is convinced that there has been misleading or breach of procedural fairness in the decision ‑ ‑ ‑

McHUGH J:   No, I have not made up my mind at all about it, but it seems to me there is a reasonable argument on behalf of this applicant that there has been a denial of natural justice, therefore, a denial of jurisdiction, and that the decision was made without jurisdiction.

MS MAHARAJ:   Yes, your Honour.  Looking at the statement which was made on page 17, in the first part of it, I do not think that I can credibly put any arguments to your Honours that that could not possibly have misled.  It is possible it may have.  The decision of the Tribunal, the arguments that I have been putting to your Honours that the vehicle is not appropriate because the matter was disposed of because of changed circumstances, loses its momentum in view of what his Honour Justice McHugh has expressed, which is that the decision would fall in the ‑ ‑ ‑

KIRBY J:   Well, you have put the position of the Minister very fairly.  Perhaps after you have considered what fell from Justice McHugh in the exchange, it may be that the Minister, in order to cut the time that these people are spending in migration detention, may simply consent to the setting aside of the order – that has been done in the past – and then the matter goes back to be redetermined.  But if need be I must confess that I am inclined to grant special leave and hear the case and determine it on its merits.

MS MAHARAJ:   I am in your Honours’ hands as to how you wish to proceed.  I have no further submissions.

McHUGH J:   Thank you very much.  In this matter there will be an extension of time in which to lodge the amended notice of appeal and there will be a grant of special leave on grounds 6 and 7 of the draft amended notice of appeal.

The Court will now adjourn to reconstitute.

AT 10.01 AM THE MATTER WAS CONCLUDED