SGFB v MIMIA

[2003] HCATrans 311

[2003] HCATrans 311

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A26 of 2003

B e t w e e n -

SGFB

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 14 AUGUST 2003, AT 3.36 PM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC:   May it please the Court, I appear with my learned friend, MR A.L. TOKLEY, for the applicant.  (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)

GUMMOW J:   Yes, Mr Tilmouth.

MR TILMOUTH:   May it please the Court, this matter concerns section 476 of the Migration Act, which, of course, has equivalents in the AD(JR) Act in relevant respects, those equivalents being to section 476(1)(g) and section 476(4) relate to section 5(1)(h) and 5(3) respectively.

Your Honours, in this matter the issue became on review not so much an assessment of what the Tribunal had decided, but it became how to deal with evidence that had arisen or became available after the Tribunal and before the hearing before the single judge, Justice Mansfield.  At page 38 of the application book Justice Mansfield considered this matter, at least in legal terms, and at line 17 on page 38 his Honour said this:

It might suggest that, had the proposed further evidence been adduced before the Tribunal, the Tribunal might have been satisfied that the applicant is a national of Afghanistan.  But that is not sufficient to bring the case within s 476(4)(b), so that the pathway to s 476(1)(g) is successfully traversed.

Cases are cited which preceded the decision in this Court in Rajamanikkam.  Now, what his Honour said about the merits of the evidence though appears at line 28:

The proposed further evidence, in addition, would not demonstrate in any event that there was no evidence upon which the Tribunal could have reached the conclusion which it did.  If accepted as reliable evidence, it would clearly bear directly and heavily upon the conclusion as to the applicant’s nationality.

Now, when the matter came before the Full Court, your Honours, the decision of this Court in Rajamanikkam had been handed down and the exercise became one of applying this Court’s decision in Rajamanikkam. What the Full Court did appears for relevant purposes at page 56. At line 15 their Honours in the Full Court considered the judgment of Justices Gaudron and McHugh and they concluded at line 23:

If the approach of Gaudron and McHugh JJ represented the view of the Court, then it would seem clear that Mansfield J was in error in holding that the evidence should not be admitted on the balance of relevance.

Now, what the Full Court did ‑ ‑ ‑

KIRBY J:   Their Honours then went on to refer to my opinion and they counted me for the purpose of discovering the binding rule of the case. I may be wrong, but my understanding of the rule of finding the ratio decidendi of a case is that you disregard the dissenting judge.

MR TILMOUTH:   That is right, and they are the three ‑ ‑ ‑

KIRBY J:   You have to just put that judge to one side and then you look to the judges who support the order of the court and try to find the principle which they accept.

MR TILMOUTH:   That is our point, if the Court pleases.

KIRBY J:   It is very nice of them to refer to my opinion and naturally I was quite touched, but I just do not think it is the correct way to go about it.  But does it matter?

MR TILMOUTH:   Yes it does, if the Court pleases, because, as I pointed out, Justice Mansfield at first instance regarded the material as clearly significant.  The court had said, as I have pointed out, that if the relevant principles regarding the construction of these two sections was that of Justices Gaudron and McHugh, then, of course, Justice Mansfield probably was in error.  Now, the problem, in our submission, is twofold ‑ ‑ ‑

KIRBY J:   It looks awfully like an attempt to have an argument on factual merits, whereas this is, after all, judicial review and ‑ ‑ ‑

MR TILMOUTH:   Quite so.

KIRBY J:    ‑ ‑ ‑you are supposed to deal with it on the basis of the record.

MR TILMOUTH:   That is true, of course, but it depends on how one regards Rajamanikkam as dictating whether or not this sort of evidence can be received. Now, in our submission, on the approach of Justices Gaudron and McHugh it can but, in our submission, not only was the court wrong, at 58, to cobble together, if I could put it that way, a majority by recruiting your Honour Justice Kirby, in my submission, wrongly, but, in any event, despite your Honour dissenting in the outcome of the decision, what your Honour said in Rajamanikkam was the same, in our submission, for relevant purposes, to what their Honours Justices Gaudron and McHugh said.  Can I take your Honours briefly, if I may, to Rajamanikkam to demonstrate that point.

KIRBY J:   Even if I did, that does not help you, because you cannot recruit me; you cannot cobble me in, as you so indelicately put it, to make the majority.  I am out there in the land of dissent and therefore you have to just ignore me, at the moment, for the purpose of finding the binding rule.

MR TILMOUTH:   If we take it on that basis, if the Court pleases, the problem that single judges in the Federal Court have, when they consider these sections or their equivalents in the AD(JR) Act is that they have a split decision, effectively of 2:2, in Rajamanikkam, which makes it unworkable.

The other point is, your Honours, in the decision of the Full Federal Court in NALF of 2002 v Minister, which I have had handed up to your Honours, a differently constituted coram of the Full Court of the Federal Court, three different judges, at paragraph 19, also in the context of a Migration Act matter, said that:

Gaudron and McHugh JJ regarded the words of s 476(1)(g) “as having introduced a new and discrete ground of review, with its precise content identified in s 476(4) of the Act”:  see par [53] –

in Rajamanikkam.

Kirby J, ultimately dissenting, expressed a similar view at paragraph [111].

So what we have, if the Court pleases, is on an everyday basis single judges of the Federal Court are faced with the problem of trying to extract a ratio from Rajamanikkam and, in our submission, the Full Court in this case has taken a different view of Rajamanikkam than the Full Court in NALF, both of these decisions being handed down within a month of each other in late 2002.

That creates, in our submission, clearly a significant practical problem in the context of this Act and in the context of the Administrative Decisions (Judicial Review) Act and, of course, in terms of section 35 of the Judiciary Act, in our submission we have, for relevant purposes, two conflicting decisions of the Full Federal Court, which leaves single judges clearly in an impossible position.  By looking at both courts binding on them, they have a split decision in one case, and three judges in one case and three in another in the Full Court saying different things about the effect of Rajamanikkam which, in our submission, makes it unworkable.

Now, the reason why we submit that this is a suitable vehicle to clarify this everyday practical problem is, of course, as I have already put it to your Honours, that Justice Mansfield regarded the evidence as clearly significant, perhaps highly significant.  The Full Court clearly accepted that if our reading of Rajamanikkam and these two provisions is right, then Justice Mansfield was wrong.  Of course, the Tribunal below accepted that the applicant had a well-founded fear of persecution.  The problem was the underlying fact which they found in the end result, they were not satisfied his origin was from Afghanistan.  But, otherwise, they regarded the matter as meritorious in terms of well-founded fear of persecution.  The only problem was what his nationality was.  So it is a suitable vehicle on the merits as well as agitating clearly a point about which appeal courts are divided.

GUMMOW J:   Just looking at the earlier decision of this Court in Rajamanikkam again and putting aside the dissenting judgment, how do you articulate the 2:2 division within the remaining Judges?

MR TILMOUTH:   In this way.  Chief Justice Gleeson and Justice Callinan, in our submission, came to the view that the second section did not add to section 476(1)(g), it restricted it, whereas the other two Judges - in fact we would say three Judges - regarded section 476(4) as a separate ground of appeal.

GUMMOW J:   As separate?

MR TILMOUTH:   A separate basis for judicial review.  Now, how that translates to the facts is, on the view of Chief Justice Gleeson and Justice Callinan, if there was any evidence on the point in the Tribunal below, you were precluded.  However, in our submission, on the basis of the way the two sections were interpreted by the other three Judges, it is possible to call evidence to demonstrate that the particular fact on which the Tribunal relied did not exist, and that is the practical difference between the two.

GUMMOW J:   Now, the continued significance of that case is probably in the AD(JR) Act.

MR TILMOUTH:   More so, but I cannot give your Honours any numbers ‑ ‑ ‑

GUMMOW J:   I am not saying that against you, but is in the AD(JR) Act.  Now, how, if at all, did the four Judges divide in this Court as to the continued significance of Curragh Mines, which is a decision of the Full Court of the Federal Court, which dealt with the relevant provisions in the AD(JR) Act, and which I thought was the controlling judgment in the Federal Court when I left it?

MR TILMOUTH:   Yes, but that rather relates to – the other case, of course, is the case of Yilan ‑ ‑ ‑

GUMMOW J:   Yes.

MR TILMOUTH:    ‑ ‑ ‑which Justice Mansfield referred to but the Full Court did not.  Now, they both say, in our submission, on the separate topic of whether evidence can be received after the Tribunal, that it can be, and that it can be received in order to show that the particular fact in question did not exist.  That of course is the question which Rajamanikkam did not touch.  Rajamanikkam was an appeal or review without there being any question of evidence called before the single judge or fresh evidence between the single judge’s decision and the Full Court decision.

The additional problem, in our submission, we have here, is the question of the construction of these two provisions when evidence arises after the Tribunal has considered the matter, whether it be admitted on the general review exercising the original jurisdictions of the Federal Court or it is fresh evidence following a review by a single judge when the matter comes before the Full Court.

GUMMOW J:   Well, as Justice Kirby says to you, this does seem to be an attempt to get into merits review.

MR TILMOUTH:   Well, if the Court pleases, that is always the problem, the heart of the problem in these cases, but ‑ ‑ ‑

KIRBY J:   Yes, but if it is a problem, it is your problem, because it is not what is intended to be the operation of the provisions of the Migration Act.

MR TILMOUTH:   Quite so, but our submission is that before Rajamanikkam you could call evidence under those two previous Full Court decisions with a view to showing that the particular fact did not exist.  Rajamanikkam, in our submission, has not altered that and three Judges in that decision support the view that you can.  That is the point and, in our submission, clearly an important matter because it not only affects those matters which are still before the Court in the old section 476, but also, of course, it affects the AD(JR) Act.

In our submission, the decision of the Full Court of Curragh supports the view – and this was an AD(JR) Act decision, of course, under 5(1)(h) and 5(3)(b):

that the requirement of establishing that a particular fact did not exist is to be satisfied by admissible evidence in court, where of course any ground must be made out, and that the evidence on the issue was not limited to material that was before the decision-maker.

That is at page 224 of 34 FCR.  And what has not been decided is whether Rajamanikkam affects the other provisions relating to the reception of evidence after the Tribunal has concluded its exercise but new material arises.  In our submission, that is the important matter and, as I have already pointed out, this ‑ ‑ ‑

KIRBY J:   It is a pretty hard for you to overcome the fact that the Tribunal disbelieved that your client as a matter of fact was from Afghanistan and that was based on some interpreters who had spoken to him and therefore were presumably able to converse with him in Pashtu, or whatever the language of his ethnic – he claimed to be a Hazara, did he not?

MR TILMOUTH:   Yes, that is right.

KIRBY J:   And, you know, it would be like an Australian pretending to be a speaker of Bahasa.  I mean, you can just tell the difference, unfortunately.

MR TILMOUTH:   Yes.  Your Honours, in this sense, this decision was quite familiar; it was based upon the linguistic analysis and it was based upon some ‑ ‑ ‑

KIRBY J:   That is right, but that is a merits matter.  I mean, look at how many cases we are getting in this Court in this area.  You can be sympathetic as much as you like, but they often are attempts to really get the courts to rehear the merits of cases.

MR TILMOUTH:   Your Honours, we are not seeking to reargue those matters.

KIRBY J:   It sounds a bit as though you are.

MR TILMOUTH:   No.  If the Court pleases, the question of linguistic analysis and the question of those inconsistencies are not part of this appeal.  The point is, had the Tribunal known about this evidence which was not before it, of people saying that they knew this applicant from Afghanistan, it might well have changed the Tribunal’s view about his nationality, could have affected the result of the decision in the Tribunal.  That is the point and, as I have endeavoured to emphasise, it appears that both courts have accepted that but for this interpretation issue, that may well have been the case.  So it is not re-raising those matters, if the Court pleases; it is raising fairly and squarely the issue of how does the court go about dealing with

evidence which arises post the Tribunal?  And that is an important matter, in our submission.  If the Court pleases.

GUMMOW J:   Thank you, Mr Tilmouth.  We do not need to call on you, Ms Maharaj.

We do not necessarily agree with everything that the Full Court of the Federal Court of Australia said in this case.  In particular, we have reservations about the way in which the Full Court at paragraph 20 of the reasons approached the task of deriving the binding rule of this Court in Rajamanikkam v The Minister (2002) 76 ALJR 1048. It is fundamental that the ratio decidendi of a court’s decision for the purposes of the law of precedent must be derived from the reasoning of the Judges in the majority of the case in question.

Nevertheless, whilst this Court may one day return to a consideration of the ratio decidendi in Rajamanikkam, we are not convinced that this present litigation provides a suitable occasion for that to occur.  Rather, we regard it as an attempt to engage the Federal Court in a merits review in an unpromising case in which the Tribunal disbelieved the applicant on the central fact as to whether he was from Afghanistan.

Accordingly, special leave is refused and refused with costs.

AT 3.55 PM THE MATTER WAS CONCLUDED