SHJB v MIMIA

[2004] HCATrans 292

[2004] HCATrans 292

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A278 of 2003

B e t w e e n -

SHJB

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 11 AUGUST 2004, AT 3.21 PM

Copyright in the High Court of Australia

MR S.C. CHURCHES:   If it please the Court, I appear for the applicant.  (instructed by Boylan & Co)

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

GLEESON CJ:   Yes, Mr Churches.

MR CHURCHES:   Your Honours, the error on the part of the Full Federal Court which we submit goes to attract a grant of special leave may be seen at paragraphs 17 and 21 of the decision of that court which is at application book 44 and 45.  The error, we submit, is a focus by the court on the decision‑making process which was at stake in this visa removal process.  The court has at those two paragraphs focused on the fact that section 108 of the Migration Act  provides for a decision to be taken by the Minister and, of course, that embraces the Minister’s delegate in the shape of the Tribunal.

It is our submission that that focus on the machinery has moved away from the important and the necessary address to the objectivity of the facts to be found there.  It is the objective nature of the facts at stake that we submit should have caused the Full Federal Court to decide other than the way in which it did.  That necessity of objectivity, we submit, is clearly set out at least as far back as the decision of Justice Gibbs, as he then was, in Buck v Bavone in a passage which is in the book of authorities which I hope your Honours have received in the course of the luncheon adjournment. 

The passage is at page 20 of the book of authorities, at about point two on that page.  This is a sentence which follows very closely on the heels of the shall we say more celebrated extract from that decision which is used by Justice Gummow in Eshetu, that portion going on from the previous page to the top three lines of page 20 of this book of authorities.  His Honour Justice Gibbs was there addressing the distinction between those sorts of decisions which would be only strictly judicially reviewable and those – and he says Hughes and Vale was just such a case.  Then the next sentence begins:

Where the authority is required to be satisfied –

and we submit that that needs to be read in the sense of however, in contradistinction with those matters of subjective assessment.

Where the authority is required to be satisfied of the existence of particular matters of objective fact, the position may be very different.

The very difference is, of course, in our submission, the existence of a jurisdictional fact which will attract the eye of a court as a fact‑finder, not merely as, of course, a restricted judicial reviewer.  We submit that it is the objectivity at stake here.  What is at stake, we submit, is not just whether the Minister formed a decision or not, which is plainly what the Full Court has done below, but that what was at stake was the Afghan citizenship or not of the applicant, SHJB, because that is all that is at stake in ‑ ‑ ‑

HEYDON J:   Do you mean residency?  The question is whether he was living in Quetta or Afghanistan.  It is not really citizenship.

MR CHURCHES:   Yes, we submit the very heart of it though, your Honour, in his application is birthplace.  He gives a village, Charkh, in Afghanistan.  If that claim can be sustained, we submit that that is the bulk of his claim.  I do understand that at law there is a question then of how long a residency period might have been, but we submit that the very heart of it is a yes or no, a switch flicking, and we submit that that really is the heart of the matter, because it is a disprovable issue, as it were, and that is what distinguishes it from those cases in which a discretion is vested in a determiner.  A subjectivity or an opinion enters into the process in most of the cases in which there is a finding of no jurisdictional fact. 

I draw that distinction about being able to disprove the matter as a discrimen to draw from the reasons given by Justice Weinberg in Cabal’s Case.  I refer to the book of authorities at page 42 at paragraph 85 in the middle of that page and the last sentence in that paragraph, Justice Weinberg in the Federal Court says:

If the facts upon which the power under consideration is conditioned can be proved not to exist, there is no basis in law for the property to be retained.

That case, of course, going off on whether a preconditional fact of property having been improperly purchased with the proceeds of crime, whether that fact existed or not.  It is our submission that matters which go to opinion and subjective belief are, of course, classically those things which cannot be disproved.  They may be, as is often the case with refugee decisions, matters on which a court later comments, “We may well not have found the same way ourselves but nonetheless that was a matter for the satisfaction of the Minister or Minister’s delegate”. 

GLEESON CJ:   Is it your argument that Justice Selway should have decided whether or not – I am relating this to section 108 – there was non‑compliance by the visa holder in the way described in the notice?

MR CHURCHES:   Our complaint against Justice Selway, your Honour, is that he did not make a finding that there should have been jurisdictional fact.

GLEESON CJ:   I am terribly sorry, I want to be a little more specific than that.  Are you saying that Justice Selway should have decided for himself whether or not there was non-compliance by the visa holder in the way described in the notice?  I am quoting the words of the section.

MR CHURCHES:   Yes, your Honour, that would have been subsequent to a determination that the issue was a question of jurisdictional fact and, therefore, he was seized of that capacity.

GLEESON CJ:   The proceedings before Justice Selway were under section 39B of the Judiciary Act, were they not?

MR CHURCHES:   I am sorry, your Honour, I was not present.

GLEESON CJ:   I know your client was unrepresented before him, but according to Justice Selway on page 30 of the application book in paragraph 8 he looked at the question of the nature of the proceedings before him.

MR CHURCHES:   Yes, your Honour.

GLEESON CJ:   I have not seen anything in your submissions that challenges what he says there. 

MR CHURCHES:   I can only say to that, your Honour, that we are here today with direct respect to what was taken into the Full Federal Court and dealt with by their Honours.

GLEESON CJ:   That is right.  So the very first thing we ought to be doing is identifying the nature of the proceedings in the Federal Court.  Do you accept that that paragraph accurately describes the nature of the proceedings in the Federal Court? 

MR CHURCHES:   I am sure it must, your Honour, yes.

GLEESON CJ:   Then it follows, does it not, that if, instead of applying in the Federal Court for one of the constitutional writs, your client had applied to this Court, this Court would have had to decide for itself whether there was non-compliance by the visa holder in the way described in the notice?

MR CHURCHES:   Yes, your Honour. 

GLEESON CJ:   The nature of the jurisdictional error you attribute to the decision‑maker was such that your argument here, as I understand it – and correct me if I am wrong – is that Justice Selway was not merely, as it were, reviewing in administrative law terms the decision of the decision‑maker or the Tribunal, he had an obligation to find for himself whether or not there had been an error in the conclusion made by the decision‑maker. 

MR CHURCHES:   Yes, your Honour. 

GLEESON CJ:   Whereas the argument against you is that all that Justice Selway was doing and was obliged to do was to review the decision‑making process in accordance with the principles of administrative law. 

MR CHURCHES:   Yes, your Honour.  I think that leaves my client in the position of hoping to proceed on the basis that Justice Selway, as it were, took a turn in the road or a fork in the road and headed off in a certain direction but that, nonetheless, it had been open to him at that first curial instance ‑ ‑ ‑

GLEESON CJ:   I just wanted to understand your argument and it seemed to me to go fairly fundamentally to what Justice Selway was about.

MR CHURCHES:   Yes.  Your Honours, we proceed on the basis that the error was made both at that level and at the Full Court in not adopting a process of factual review, if we might call it that.  There is some confusion in the authorities as to the expression “judicial review” and I think we ought to clearly distinguish between the two. 

The Migration Act itself, in our submission, your Honours, well illustrates the distinction that I have just been submitting to the Court, the distinction, of course, being between the process provided for in section 108, the section before us today, compared with all the other provisions that we have provided for in the book of authorities.  All of those provisions talk in terms of satisfaction.  It is not merely that they talk in terms of satisfaction, because we have already said that we think the court has focused too much on perhaps the verb “empowering” a decision‑maker, but that all the matters that are at stake, other than in section 108, the visa cancellation process, all of them go to a more abstract state of mind.  For example, 116 at page 13 of the book of authorities, we have there a state of satisfaction:

The Minister may cancel a visa if he or she is satisfied that –

and then we have non-compliance with a condition, non-compliance with a condition – that is (a) and (c).  At (e), well down the page:

the presence of its holder in Australia is, or would be, a risk –

and so forth.  On the next page, your Honour, page 15 of the book, at the bottom of the page we have 501.  Satisfaction is the touchstone followed by “reasonably suspects” with respect to the character test and when we go over the page to the character test on page 16 we have “reasonably suspects”, “not of good character”, “significant risk” and so forth.  Now, these are matters classically of individual perception.  Of course they must be reasonably formed, it would be said, in classical judicial review terms but they are matters for the decision‑taker, whereas we submit that the question of compliance or accuracy with the visa application on the part of this applicant originally is a matter that can be tested with absolute objectivity unlike risk to the Australian community, of good character and so forth. 

It is the objective nature of what is at stake here that we submit is right at the forefront of Justice Weinberg’s thinking.  Justice Weinberg was not overruled – I am careful how I phrase that.  The Full Court may be regarded as a little tepid but it appears to have been approached – it is in the book of authorities at page 44 and 45, Justices Carr and Tamberlin on page 45.  Justice Carr, paragraph 12, second sentence:

First, because it is sufficiently clear, in my opinion, that the primary judge correctly applied the principles of construction –

He says before that “not attended by sufficient doubt”, and Justice Tamberlin at 15:

the decision appealed from is not attended with sufficient doubt to warrant the grant of leave to appeal.

Now, in our submission, we have a view there in the Federal Court.  The other authority which we put in the book, the much more recent – late last year – the decision in Australian Postal Corporation v Forgie is, of course, off on quite different statutory provisions because there is a phrase there of “reasonable excuse”, a question of reasonable excuse.  In our submission, that again will be such a subjective matter for a decision‑maker that it will be inappropriate to have a court attempt to review such a matter on facts. 

Forgie goes off on very complex statutory interaction with the Administrative Appeals Tribunal but that phrase alone in section 37(7) of the SRC Act, the reference to “reasonable excuse”, provides again the distinction with where we are with the sort of clear facts which are at stake in a claim for a visa application – in this particular case, citizenship, perhaps also where he lived, if he lived outside the country of origin.  But it is that distinction, we submit, is really what is at stake. 

Further in Justice Weinberg’s decision in Cabal, your Honours, at page 35 of the book of authorities it is notable that his Honour extracted a whole page of what Chief Justice Black had to say in the Australian Heritage Commission Case, the point being that his Honour, in dissent in the Full Federal Court, was allied, as it were, with what this Court had to say in the final round of that litigation. 

GLEESON CJ:   Are the grounds of appeal that were before the Full Court of the Federal Court those appearing at pages 38 and 39 of the application book?

MR CHURCHES:   Yes, your Honour.

GLEESON CJ:   Which of those grounds raises the point that you are now on?

MR CHURCHES:   Presumably it must be paragraph 3, your Honour.

GLEESON CJ:   Thank you.

MR CHURCHES:   There is probably also a picking up in paragraph 2, the reference there to “jurisdictional facts”. 

GLEESON CJ:   I think that is consistent with what I put to you earlier, that is to say the essence of your argument is that Justice Selway should have found for himself whether there was non-compliance.

MR CHURCHES:   Yes, your Honour.  If I could just note at the book of authorities at page 35 that extract from Chief Justice Black, the point being that his Honour there talks about the matters which were at stake in the National Heritage Commission statutory provisions, the point being there in the middle of the page his Honour talked about:

the task of determining whether a place is part of the national estate may be a difficult and complicated one, involving the careful assessment of complex facts and the formation of opinions and value judgments on a potentially very wide range of matters.  Questions of science, history and aesthetics may well need to be considered.  Many branches of science, from biology to geology, may be involved.  A wide range of historical and cultural issues –

The following paragraph is probably also extremely important, your Honours, because there we have the reference to parliamentary

intention.  His Honour there said that the matters he had raised above and just how broad they were, how general, how perhaps apt for a particular fact‑finder as opposed to a general court to address.  He says that was:

suggestive of an intention that the body established by the Parliament with the function of identification is to have the power –

We would submit that if the matters at stake were as abstract as that listing there, matters of aesthetics, matters of science and so forth, that might well be appropriate for a particular fact‑finder set up by Parliament.  But, in our submission, the intention of the Parliament is made all the more clear by the amendments to section 36 of the Migration Act in the course of 2001.  In our search – my friend might have better knowledge on this – the remaining process of determination left in – the only time that satisfaction is now not imposed as the standard throughout the Migration Act is in section 108 and that related material around 107, 108, 109.

GLEESON CJ:   Before you conclude, there is some reference in your application papers to new evidence.  What is the status of that in these proceedings?

MR CHURCHES:   We are not relying on the legal argument to obtain special leave, your Honours, but I think the Court has before it a book of new material that has been gathered ‑ ‑ ‑

GLEESON CJ:   Yes, but what is the relevance of that to us?

MR CHURCHES:   We had contemplated running an argument for special leave on the question of whether this Court could take in new evidence at this stage.

GLEESON CJ:   But you are not doing that.

MR CHURCHES:   But we will not rely for special leave on that.

GLEESON CJ:   All right.  Thank you very much.

MR CHURCHES:   Thank you, your Honours.

GLEESON CJ:   Yes, Ms Maharaj. 

MS MAHARAJ:   It is please your Honours, the submissions we make are in addition to what we have done in our written submissions.  In relation to my learned friend’s submissions regarding jurisdictional fact, the definition of it, your Honour, we would say that that is against the precise terms of the provisions under consideration and, secondly, we would say that there is no

ambiguity about the legal principles that are applied in order to determine whether a particular provision is a jurisdictional fact or not.  We have collected for your Honours in footnote 17 at page 70 of the application book the relevant authorities and most of them have, in fact, fallen from this Court.

We would say that the consequence of holding the particular provisions as entailing a jurisdictional fact would have consequence as to the nature of the question which would be before the Court, which is it would have to determine for itself on a fact‑finding mission as to whether those jurisdictional facts had been made out or not.  So, in short, your Honours, it flies in the face of the statue itself, secondly, it flies in the face of the legal principles which have been clearly enunciated by this Court and has an undesirable consequence which we cannot say, respectfully, would have been visualised by the legislature for provisions like this. 

In relation to the second argument, your Honour, where in his written submissions my learned friend is advocating a gloss on the Wednesbury test of unreasonableness, we would say that there is no precedent in the Australian law for importing such a gloss and, secondly, we say that reliance on the English authorities is misconceived because your Honours would note that the English common law developed along different lines because of the incorporation of the European Convention on Human Rights into the UK law by the Human Rights Act in 1998.

Finally, we would say that the quality or the calibre of the material that is before the Court would satisfy your Honours irrespective of which test was applied, the higher test that my learned friend is advocating or the Wednesbury test, because the Tribunal did find – application book page 67 at paragraph 3 – that it came to its conclusions, to quote the Tribunal, “with confidence”.  It also said that it had “a high degree of satisfaction” in relation to the conclusions that it arrived at. 

So all in all, your Honours, we say that there is no matter of legal principle that arises and, in any event, because of the factual findings that have been made and the strength of the material before the Tribunal, this is not an appropriate vehicle in any event.  If it please your Honours.

GLEESON CJ:   Thank you.  Yes, Mr Churches.

MR CHURCHES:   My learned friend made the comment very early on that if our argument were accepted it would involve the Court going on a fact‑finding mission, well, so be it.  The various authorities have talked about the question of possible burdens being placed on courts as a result of a determination that there is a jurisdictional fact ‑ ‑ ‑

GLEESON CJ:   It is not a question of burdens; it is a question of the nature of judicial review.

MR CHURCHES:   I should have used the expression “inconvenience”, your Honour.  I think it is a phrase that has been used by a number of the Judges going back to Parisienne Basket Shoes, whether inconvenience is a result.  We would submit that that may be the case but that the Parliament has now clearly drawn a distinction between the satisfaction of a decision‑maker being quite adequate throughout the entirety of the Migration Act with the exception of this particular aspect of visa removal where a state of satisfaction is specifically not addressed at all – that is not the terminology utilised. 

That is why we have noted that in section 36, as recently as the year 2001, the Parliament expressly altered what had been a bare objective state as to refugee status in section 36 and specifically inserted a reference to the state of satisfaction, the point, of course, being that classically sections 36 and 65 dealing with refugee status are dealing with something as, dare I say, ephemeral as a well‑founded fear of persecution for a Convention reason, in our submission, something a great deal more abstract than what is at stake here:  “Are you an Afghan or not?  Were you born in Afghanistan or not or are you really a plumber from Quetta?” as was said.

As to the state of high satisfaction of the Tribunal, there are matters which, in our submission, plainly make this an apt matter for curial review of facts.  One of the things that attracted the Tribunal was the fact that there were Pakistan Government citizenship records presented and those records, we note, were in the realm of, in the case of one, 20 and, in the other, 30 years out of date when they were presented to the Tribunal. 

It is not before your Honours but it is known to both parties that – it was in evidence before the Federal Court – the Pakistan Government is very proud of its citizenship record system and there were four pages of evidence from that government about how accurate that system is.  Our point is, if the Pakistan Government records are that accurate, why have we not got presented to us a much more recent account of this family in which the applicant would be recorded with his wife and then five children, as they were when they fled that part of the world, in about 1997 ‑ ‑ ‑

GLEESON CJ:   Which of the grounds of appeal before the Federal Court does that point go to?

MR CHURCHES:   We merely submit, your Honour, that that goes to an example of why this would be apt for fact finding by a court.  It would be the sort of question a court would address, we submit, very quickly:  why

has there not been the best evidence provided?  Why is this old outdated – in which the applicant is referred to as the son of a family instead of with his now family in his adulthood as a father and head of family.  In our submission, that is an example of how inappropriate the approach of the Tribunal has been to fact finding. 

I raise it because my friend said that the Tribunal had been in a high state of satisfaction and we submit that the evidence of the newspapers which were put on are entirely inappropriate for a matter as serious as this.  Again, Justice Weinberg addressed that in Cabal’s Case where he lists three factors which go to the seriousness – one of them is the seriousness of the matter.  It is page 40 of the book of authorities, the third of the dot points in paragraph 74:

whether “transcendent” or “important” values are at stake.

In our submission, here the visa category and the holding of that visa was a matter of supreme importance and ought to be the sort of thing that attracts a court’s eye and makes it more likely that this is a jurisdictional fact.  The other two bullet points, we submit, also raised by Justice Weinberg on that page also go to indicate the sort of distinctions that favour us in submitting that this is a jurisdictional fact.  Your Honour, that concludes our reply.

GLEESON CJ:   Thank you.

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

We will adjourn for a short time to reconstitute.

AT 3.50 PM THE MATTER WAS CONCLUDED