SZBYR & Anor v MIMIA & Anor
[2007] HCATrans 83
•28 February 2007
[2007] HCATrans 083
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S3 of 2007
B e t w e e n -
SZBYR
First Appellant
SZBYS
Second Appellant
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 28 FEBRUARY 2007, AT 10.21 AM
Copyright in the High Court of Australia
__________________
MR G. O’L. REYNOLDS, SC: May it please the Court, I appear for the appellants with my learned friends, MR C.D. JACKSON and MR M.A. IZZO. (instructed by Kazi & Associates)
MR R.T. BEECH‑JONES, SC: May it please the Court, I appear with my learned friend, MR J.A.C. POTTS for the first respondent and, your Honour, we would also seek that the name of the first respondent be amended to refer to the Minister for Immigration and Citizenship. (instructed by Clayton Utz)
GLEESON CJ: You have that order. Now, in relation to the notice of contention, is it convenient to the parties if we hear what they have to say both as to whether the leave should be given and as to the substance of the matter in the course of their submissions and we can deal with the matter when we come to give our reasons?
MR BEECH‑JONES: Yes, it is, your Honour.
GLEESON CJ: Thank you. Yes, Mr Reynolds.
MR REYNOLDS: Your Honours, can I begin by giving the Court an outline of the order in which I intend to proceed. The first issue I would like to deal with is to give your Honours some background to this particular case, second of all, I will deal with the argument as to breach of section 424A of the Migration Act and, third of all, I want to look at the impact of that breach of section 424A on the reasoning of the Tribunal. Your Honours will have seen that both of my clients are Indian nationals. They originally sought protection visas. Those visas, if your Honours go to the Migration Act 1958 (Cth), were sought under section 36.
GLEESON CJ: What is the reprint of the Act that it is convenient to us to work from, Mr Reynolds?
MR REYNOLDS: Reprint 8, your Honour, is the one that was suggested. I do not think it will be terribly important if your Honours are working from another reprint.
GLEESON CJ: No, it is just that we always like to have the right copy of the legislation in front of us.
MR REYNOLDS: If your Honours go to section 36(2) of the Act, in particular ‑ ‑ ‑
KIRBY J: We have a certain familiarity with this subsection.
MR REYNOLDS: If your Honours please. I will simply make the point that protection visas were sought by both of my clients, who are husband and wife, under that particular provision, which takes your Honours back to the Convention which is set out, if your Honours do not know it by heart, at the bottom of page 72 of the appeal book. If your Honours go to the text then of the Convention at the bottom of page 72, the fears of persecution articulate ‑ ‑ ‑
KIRBY J: Just so that I can whet my appetite, what was your connection with the Convention? It just seems like a domestic.
MR REYNOLDS: Your Honour, I will be coming to that argument in detail in due course, but to anticipate things a little ‑ ‑ ‑
KIRBY J: Obscure?
MR REYNOLDS: I am sorry, your Honour.
KIRBY J: You were going to say “a little obscure”?
MR REYNOLDS: No. As I say, I will deal with this in detail because I have to, but the gist of it is this, that the two relevant reasons are religious animus, first of all and, secondly, although to a lesser extent what I will call social animus, picking up the words of the Convention, but I will focus on religious animus.
KIRBY J: The social group was the other category, was it?
MR REYNOLDS: Yes, it is. I am paraphrasing the Convention. Basically, the husband, one of my two clients, ran into trouble with the family of his previous wife who he says hated him primarily because he was from a different religious sect to them. He is a Shiah and the other family are orthodox Muslims, so if your Honours are trying to get a grip on this, the analogy I have used is the disputes in Iraq between Shiahs and Sunnis. That is the flavour of it. So he married a woman from a different religious sect. There was a whole lot of animus towards him from his wife’s family because he was from a different religion and from a different social group.
KIRBY J: Not a different religion.
MR REYNOLDS: I am sorry, your Honour, a different sect – your Honour is quite right – within that religion.
KIRBY J: His family were the followers of the Aga Khan, is that correct?
MR REYNOLDS: His were and they are described as Shiah Muslims in the appeal book. The other family are described as Orthodox Muslims, so it is two different sects. Arising out of that hatred a whole lot of things happened. First of all, there is an assault, I think, in about 1997 by members of his former wife, Salima’s family, on the husband, but most importantly, what happens is that there are, according to the husband, a series of false charges which are laid against him by the authorities in India on the complaint of Salima’s family.
The reason that the authorities become involved obviously is at the point of being responsible for laying the charges, so there is the official aspect of the persecution but the reason behind the persecution obviously derives from the attitude of Salima’s family to my clients, in particular, the husband.
Eventually what happens is that the husband and his former wife, Salima, divorce. That is noted in the appeal book at page 75, at line 9. Then in July 2001, Salima commits suicide. That is noted at appeal book 75, line 15. In 2001, according to my clients, further charges are laid. It is not quite clear what they are but they appear to be charges levelled at them as being responsible for Salima’s death. That then, according to them, leads to them being gaoled for 15 days as a result of those charges, and this is dealt with in the appeal book at page 75, lines 22 following. Faced with that situation, as noted in the appeal book at page 79, point 38, both of my two clients flee India.
Now, one comes to the formulation of the fears which my clients had. I will refer to these as first of all the primary claim and second of all what has been as described as the residual claim. The primary claim relates specifically to the 2001 charge which they say was outstanding, that is charging my clients with responsibility for Salima’s death.
My clients say they fear imprisonment as a result of that charge if they return to India. They say that Salima’s family is responsible for that charge and that their motivation was religious animus but also animus derived from a difference in social status. They say that the charges were triggered by the suicide and that, in effect, Salima’s family have the authorities in their pocket and can get my clients charged as they please on these false bases. So that is the primary claim they put as their fear of persecution.
KIRBY J: It says “persecution in India.”
MR REYNOLDS: Yes. So when they go back to India, there is this outstanding charged levelled in 2001 relating to Salima’s death and they fear that they are going to be imprisoned as a result of that, and they say that the ultimate reason for all of that is this animus that is borne towards them by Salima’s family which is primarily based on religion and difference in social status.
Now, the second claim we would call the residual claim. What this is is a fear as to the future of imprisonment in India on false charges on the complaint of Salima’s family. The idea here is that my clients point to the false charges which were levelled against particularly the husband in the past which were the result of religious animus and what I will call, for shorthand, social animus.
They say when you look at these four charges, these false charges, that occurred in the past for these reasons, religious and social, that there is a likelihood that when they go back to India that they will be charged by the authorities, in effect on the complaint of Salima’s family, and that the reason for all of this is religious and social hatred. So that was the basis of the ‑ ‑ ‑
KIRBY J: We have to get this very clear. The social hatred that you refer to is not a Convention ground.
MR REYNOLDS: Your Honour is quite correct. I am paraphrasing it because the words of the Convention are “membership of a particular social group” and your Honour is quite right that this aspect of the case is not well articulated because, as I stand here now, I cannot define with exactitude what the membership of that other particular social group is, but if your Honours, if I may say so, concentrate on the notion of religious animus I will not be paying much attention to this other notion of what I have called social animus or animus deriving from membership of a particular social group.
KIRBY J: It is not entirely clear in the facts, but did the male appellant divorce his first wife before she committed suicide?
MR REYNOLDS: He did. I am sorry, I meant to refer to that. I thought I did. That is at appeal book page 75 at point 9. That divorce apparently took place in 1999.
KIRBY J: Did he divorce her or did she divorce him?
MR REYNOLDS: Your Honour, I do not know.
KIRBY J: Not clear.
MR REYNOLDS: So that is the case that was presented to the Minister’s delegate. He refused protection visas. The matter then went to the Tribunal where the delegate’s decision was affirmed. I will come back to this, of course, but we say that at the Tribunal there was a breach of section 424A. The Tribunal’s reasonings are appeal book page 71 and following. There was then an application for certiorari before Federal Magistrate Raphael by my clients. That application failed. It was held that there was no breach of section 424A relevantly. It then went on appeal from there to the Full Federal Court constituted by Justice Madgwick who dismissed the appeal.
Can I deal next with the argument about a breach of section 424A and, again, it may be that your Honours are extremely familiar with this provision, in which case I will move as quickly as I can, but ‑ ‑ ‑
GLEESON CJ: What is the information in this case within the meaning of section 424A(1)(a), particulars of which should have been given?
MR REYNOLDS: What I will describe as the relevant passages in the statutory declaration.
GLEESON CJ: The information is information to the applicant that this is what he had said in the statutory declaration?
MR REYNOLDS: Yes. I will go into that in a little more detail in a couple of minutes, your Honour, but jumping ahead, that is the information.
KIRBY J: There is a line of territory in Federal Court, is there not, perhaps in this Court, that says it is not necessary to notify the steps in the reasoning of the decision‑maker and the Act does not require that in terms, but it does require the supply of the particulars of any information. Is that correct?
MR REYNOLDS: I think that is right, your Honour, but nothing turns on that in this case.
KIRBY J: Except that the argument against you is that it cannot have been the meaning of the section to require the provision of the very information that the applicant has provided and that ‑ ‑ ‑
MR REYNOLDS: Your Honour, I do not think that is the Minister’s argument. On any view, there was nothing provided to my clients in writing, so what I have to show is, as it were, working back retrospectively from the reasons, that there is something that should have been given to my clients in writing and that (1) provision of particulars, (2) a written invitation to comment ‑ ‑ ‑
GLEESON CJ: That is what I want to understand. Is it your case that what should have been said to your client was, “In your statutory declaration of such and such a date, you said so‑and‑so?”
MR REYNOLDS: Effectively, yes. As I say, I will spell out in detail in a moment what the case is or what we say should have been done under section 424A, but I will need to go to a couple of matters before I get to that.
KIRBY J: The steps in the reasoning issue arise because, as I understand it, it has been held that you do not have to say “and I want that”, because there seems to me to be an inconsistency between what you said in your statutory declaration and what you have said in evidence before the Tribunal.
MR REYNOLDS: Well, here there was no invitation to the applicant to comment at all in writing and, your Honour, I do not think anything turns on the precise nature of the invitation or explanation ‑ ‑ ‑
KIRBY J: Does anything turn in this case on the country information and the suggestion that India has an efficient computer system which would have stopped the appellants from leaving India if they had been on notice?
MR REYNOLDS: Your Honour, that was discussed on the facts but it is not important to my argument and I do not expect that my learned friend will be taking you to that either. Can I get at, as it were, the gist of the breach of section 424A and then go to it in more detail. The gist of it is that the Tribunal looked at inconsistencies between the statutory declaration, on the one hand, and the oral evidence given by the husband, in particular, on the other, used those inconsistencies to make adverse credit findings, found that he was not a witness of credit, and this led to the rejection of both the primary claim and the residual claim, there being on any view no written notice of anything as required by section 441A.
GLEESON CJ: Now, it is not suggested that the relevant information is the information that the Tribunal considers there are inconsistencies.
MR REYNOLDS: No, your Honour. The key passages in the reasoning – and I will take your Honours to these briefly and then formulate the argument more specifically.
GUMMOW J: Do we not, at some stage, have to find out just what is decided in SAAP as to the construction of 424A?
MR REYNOLDS: Your Honour, I will be submitting that this case can be decided without picking up the law reports and that ‑ ‑ ‑
GUMMOW J: You have to construe 424A.
MR REYNOLDS: We do. I will be construing it, of course, in due course, but the argument that I wish to present is that, in effect, no matter what construction is taken of section 424A, there was a breach in this case, and that is why my submissions this morning will not be replete with many case references. If I may move on then to the ‑ ‑ ‑
GUMMOW J: You also have to rely on the proposition that the breach of 424A constitutes jurisdictional error because it is mandatory in the Project Blue Sky sense, do you not?
MR REYNOLDS: Your Honour, there are three - as I understand it the decision in SAAP (2005) 215 ALR 162 - this is an argument which is a notice of contention argument, but just to anticipate things very briefly we submit that, as noted in the headnote of that decision, this Court held, or three Justices of this Court held that non-compliance with section 424A renders the decision invalid, respectively, Justice McHugh at paragraph 77, Justice Hayne at paragraph 208 and Justice Kirby agreed with Justices McHugh and Hayne, relevantly, at paragraph 173 so we know that the Minister is not having a tilt at SAAP. That has been clarified both in correspondence and also in the submissions.
If I can just take your Honours to the key passages. They are only very brief in the reasoning of the Tribunal. They are in the appeal book at pages 75 to 76, relevantly, page 75 at line 15 over to page 76 at line 5. To save your Honours’ reading that text, your Honours’ tipstaves should have a document deriving from us headed, “Discrepancies between Statutory Declaration and Oral Evidence on the issue of charges”. That summarises the points, as we understand it, that are being made by the Tribunal. We then lead to – and I will not go through that, your Honours can read that in due course, but we then go to page 84 of the appeal book, particularly at line 20 where it is noted by the Tribunal that:
the applicant husband did not impress me as a reliable witness. I found the modifications and refinement between his written claims and his oral evidence, within his oral evidence and the inconsistency with that of his wife’s oral evidence as to when he was actually arrested in 2001 to be unsatisfactory.
If I can also take you back to that same page at about line 13 there is also a statement:
In my view the applicant husband has not been entirely frank in his evidence as to the nature and extent of his actual difficulties in the past. I acknowledge that the assessment of credibility should be approached with due caution . . . However there are a number of aspects about the evidence before me which I find troubling.
That word “difficulties” harks back to line 1 on that page which then lists the assault then various arrests in 1997, perhaps 1998 or 1999, then in 2001, et cetera.
GUMMOW J: You notice it says “he divorced her” about line 10 on the page?
MR REYNOLDS: I am grateful for that correction of what I told your Honours earlier. Now, this is in the course of a heading at page 83, line 21, “FINDINGS AND REASONS,” and this is dealing with the primary claim. Now, the conclusion in relation to the primary claim is at page 86, line 18:
For the reasons set out above –
which include all of those adverse credit findings, obviously –
I find that at the time the applicant and his wife left India there was no outstanding charge against them -
So there are a lot of reasons but integral to the finding that there was no outstanding charge are these adverse credit findings which derive ultimately, we submit, from the information in the statutory declaration.
If I can answer directly the question that your Honour the Chief Justice asked me a little earlier, addressing, I hope with some precision, the issue of what the Tribunal should have done to comply, I say, first of all, that written particulars in accordance with section 441A of the information should have been provided, namely the relevant passages in the statutory declaration. Now, I cannot be more specific than that because I am working back retrospectively from the reasons, but they would be the passages, one would assume, which talk about the various charges as we have set out in our little note.
GUMMOW J: Given when?
MR REYNOLDS: Well, the section does not, on my recollection, deal with the question of time. Obviously it would have to be given before the decision by the Tribunal was delivered. We would say it would also have to be delivered in sufficient time to enable some response to be given so conveniently probably at the hearing or given after an adjournment with the possibility of a further hearing before the Tribunal.
GUMMOW J: What is the comment spoken of in paragraph (c)? How is that to be communicated? The oral hearing is finished, one assumes.
MR REYNOLDS: Well, that has to be in writing under 441A.
GUMMOW J: Well, “invite the applicant to comment”. How is the applicant to comment?
MR REYNOLDS: I am sorry, I did not ‑ ‑ ‑
GUMMOW J: How is the applicant to comment? By what medium?
MR REYNOLDS: It is a matter for the applicant.
GLEESON CJ: But the particulars that you say should have been given under 424A(1)(a) were as follows – I am sorry. You made a statutory declaration on such and such a date. The contents of that statutory declaration included paragraphs X, Y and Z. You are invited to comment.
MR REYNOLDS: Yes, and in addition to that there has to be an explanation which apparently does not need to be in writing, although I am told it usually is, explaining why the information is relevant.
HAYNE J: Is the premise for this limb of the argument that the statutory declaration does not fall within 424A(3)(b)?
MR REYNOLDS: That is an implicit premise in this argument, yes, your Honour.
HAYNE J: Is that premise right?
MR REYNOLDS: I understand that there is no dispute about that.
HAYNE J: There may be no dispute, but is it right?
MR REYNOLDS: Your Honour, the word “application”, as I understand it, has been interpreted to mean application.
GUMMOW J: Back at the stage when it is before the delegate.
MR REYNOLDS: It means that the applicant gave, for the purpose of the application before the Tribunal – and there is no doubt that my client did not hand up, as it were, this statutory declaration before the Tribunal. The word “application” there – and I understand the point your Honour Justice Hayne is making – has been interpreted – the word “application” refers to the Tribunal, not to the application before the Minister’s delegate and there are cases that deal with that in the Federal Court and they are not challenged in this Court.
KIRBY J: We have had cases, or at least a case, in which the Tribunal member wrote a letter to the applicant asking for comment. Do you remember what that case was?
MR REYNOLDS: No, your Honour.
CALLINAN J: Mr Reynolds, I have to say to you, whether that is challenged in the Federal Court or not or whether the Federal Court decisions in relation to (3)(b) are challenged or not, does not foreclose the matter so far as I am concerned.
MR REYNOLDS: If I may respectfully say so, there is obviously an argument there, but this is not a point which the Minister is taking on this appeal and we do not come here today, your Honour, ready to argue it. It is a matter for the Minister to take the points that the Minister wants to take by way of notice of contention or otherwise and that is simply not one of them. For whatever reason, the Minister seems content to abide by the decisions of, I think, Full Federal Court on this point. This case might provide an appropriate vehicle to have challenged those decisions. The Minister knows very well what they say and has chosen not to challenge them. That is the question of breach.
Can I move to the final limb of my argument which is the impact, we say, of the breach on the reasoning of the Tribunal. The words of 424A show that we need to show that the information which was not disclosed in accordance with section 441A form at least the reason or at least a part of the reason why the Tribunal affirmed the decision within the meaning of this first subsection of 424A.
We submit that that is, in this particular case, easy to do and the reason for that is that we say that this information we have been talking about was a core reason for rejecting both of these claims. So what I want to do now is to show how this information was a core reason for rejecting the primary claim and how it was also a reason for rejecting what I have described as the residual claim.
GLEESON CJ: The communication from the Tribunal would have to be, would it not, “You said this in a statutory declaration. What you have said in your statutory declaration is a reason for refusing your application because what you said in your statutory declaration is in some respects different from what you have said in your oral testimony”?
MR REYNOLDS: That would be the ideal and fairest way of doing it, yes.
KIRBY J: But is that not the disclosure of the reasoning process which – I may be wrong, but I thought that Federal Court authority and perhaps this Court has said it does not have to be disclosed.
MR REYNOLDS: Your Honour, to some extent, as I said before, the precise nature of the invitation and the precise nature of the explanation, if I can put it that way, in this case are academic because there was no written disclosure of anything. So that whilst as a matter of neatness one would like to formulate with as much precision as possible exactly what should have happened because we know that no written document was produced or handed to my clients, in one sense, the precise niceties of what should have been in it do not arise in this case. But I do submit that, following on from what your Honour the Chief Justice said, certainly the ideal way of doing it, as a matter of fairness, would have been to point the applicants in the direction of the inconsistencies and say that that may lead to adverse findings in relation to those portions of the case.
As far as the impact on the primary claim was concerned, this is dealt with in the appeal book at pages 84 to 85. I have already taken your Honours to the relevant passages by way of background. That is, page 84, line 20, where there is a major credit finding against my client, the husband, on the basis of these inconsistencies and, higher up the page, at about line 13, there are statements that:
the applicant husband has not been entirely frank in his evidence as to the nature and extent of his actual difficulties in the past.
I took your Honours also at page 86, about line 18, to the finding that “there was no outstanding charge” at all as a result of those credit findings. That finding that there was no outstanding charge at all is a result, relevantly, of a finding that he was not a “reliable witness” at page 84, line 20, and also the finding that he was not frank in relation to past difficulties. Those findings as to lack of reliability are themselves a result of the information in the statutory declaration, namely the inconsistencies between it and his oral evidence.
So, we submit that the breach of section 424A affects the reasoning on this primary claim root and branch. It has a consequential knock‑on effect also because, given the finding that there was no outstanding charge, the Tribunal does not go on to consider at any stage whether these earlier difficulties and charges referred to at the top of page 84 were the result of religious animus, as I have called it, nor does the Tribunal go on to determine whether the 2001 charge was itself laid out of religious animus on the part of Salima’s family for the simple reason that if you find that these events did not occur or you fail to find that these events occur, then there is no need to consider what the reasons for them were.
As far as the impact on the residual claim is concerned your Honours will recall that the residual claim is a fear that my clients had that false charges would be laid in the future by reason of religious animus. In other words, when they go back to India they fear that Salima’s family, because of religious hatred, et cetera, will get the authorities, who are apparently in their pocket, to charge them in the future on false charges.
Now, any attempt obviously to make a case of that kind would have to be made on this basis. Look at all of the false charges that have been levelled against the husband in the past for religious reasons - if your Honours go back to my list, in 1997 and 1999 and 2001 - find that those charges have been levelled against him because of religious animus and, having made those findings, then ask the Tribunal to infer that there is a well‑founded fear that similar false charges will be laid for similar reasons in the future.
The difficulty is that that argument in relation to this residual claim – and your Honours will see at line 21 of page 86 the residual claim is mentioned and it is discussed from there pretty much towards the end of the reasons which finish on page 89. The reason that this residual claim is affected by the breach is that if there have not been findings of earlier charges in 1997 twice and 1999 and in the year 2001, that therefore means there is no finding that those particular charges were levelled out of religious animus.
GLEESON CJ: Is the persecution that is feared abuse of the criminal justice process?
MR REYNOLDS: Effectively, yes. Putting it loosely and perhaps unfairly to everyone involved, but to get the gist of it, Salima’s family hate the husband for religious reasons. They have the police or other relevant authorities in their pocket. Motivated by that religious hatred they go and get the police to charge them on false charges.
GLEESON CJ: The persecution that is feared is malicious prosecution?
MR REYNOLDS: Effectively, yes. But where the relevant prosecutor within that realm of discourse in a real sense is Salima’s family rather than the authorities, although the authorities go along with it or, within the terms of their case law, they condone it.
CRENNAN J: Is it suggested the authorities go along with it for religious reasons?
MR REYNOLDS: No, no such case was put.
KIRBY J: What is your answer to the suggestion that the Tribunal dealt with the way in which your client had put the case, but came to its essential reasons on pages 87 and 88 when it said:
I find that the harm the applicant fears is from private individuals settling a private dispute and as such it does not constitute persecution of a kind which can attract protection under the Refugees Convention -
That is at the top of page 88 and then line 25:
whatever fear of harm he held does not relate to a Convention reason.
On page 89 at line 9:
I am not satisfied that the applicants’ fear of harm is owing to a Convention reason.
All of the earlier things were, in a sense, responding to and recounting and chronicling the story your client told, but the reason for rejecting the appeal or application for review was that it just was not of a kind that attracted the Convention.
MR REYNOLDS: That is the reason for rejecting the residual claim. That is not the reason, of course, for rejecting the primary claim. I have given your Honours reasons as to why the rejection of the primary claim was affected by the non‑provision of information. I now need to show how the residual claim was affected by the non‑provision of information in accordance with the Migration Act.
KIRBY J: I do not see a division here between primary and residual. The Tribunal member is simply recounting the story and then saying, “Well, all of this is very well and there are various inconsistencies, but the bottom line is this is a private thing. It has nothing to do with the Convention.” You have to postulate that there is a genuine fear of persecution if returned to India for reasons of persecution, for reasons of religion.
MR REYNOLDS: Your Honour, can I deal then and respond directly to what your Honour is asking me by showing how the breach affects these findings on this residual claim. Your Honour has said that one needs to show that the harm as to future false charges will stem from a Convention reason. Relevantly, it will be for reasons of religion. Now, there is a finding, as your Honour has said, in relation to the residual claim on pages 87 and 88 that any harm that is feared as to the future will not be for a religious reason.
How then, is that reasoning on this residual claim, affected by the breach of section 424A? I say that it is fairly simple and that is that if you want to show that there is a risk in the future of false charges being laid for religious reasons and your way of showing that is to point to false charges in the past being levelled for religious reasons, then if there is a finding that there have not been any charges levelled in the past, that therefore means that you cannot show that those past charges were levelled for religious reasons and therefore you will not be able to show the likelihood of future charges being levelled for religious reasons. In other words, the reasoning on the primary claim also affects the reasoning on the secondary claim.
Now, your Honours will have seen – I will just give you the references to the Tribunal Member repeatedly saying “the evidence before me”, AB page 86, line 38; 87, line 2; 87, line 7; 87, line 14; 87, line 21; 87, line 32 and 88, line 24. What that means, in context, we say, is, “On the evidence before me, including the findings that I have made in relation to the primary claim” which relevantly did not include findings that these previous charges had ever been levelled.
So we never got to first base before the Tribunal on either of our cases because the substratum for showing either the primary claim or the residual claim was to show that there had been these past charges levelled and they were levelled for religious reasons. There is another aspect to this and I can conclude on this note with a couple of small points.
This particular breach led to adverse findings of credibility and my proposition is that it is often difficult to tell exactly where the impact of an adverse finding of credibility begins and where it ends. Now, there are a couple of cases I would take your Honours to briefly on this point. The first is a decision of this Court in Stead v State Government Insurance Commission (1986) 161 CLR 141. This is a joint judgment relevantly at pages 145 at about point 6, through to the first three lines of page 146. At the end of page 145, the Court says:
It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice –
this is the denial of natural justice in relation to a credibility finding –
had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.
I interpolate, a fortiori, where the witness is one of the parties. Now, there are similar statements – I will just give your Honours the references – by most of your Honours in the decision of this Court Re Refugee Review Tribunal & Another; Ex parte Aala (2000) 204 CLR 82. Can I just give your Honours references to paragraph 4, which is Chief Justice Gleeson; paragraph 80, which is Justices Gaudron and Gummow; paragraph 133, which is Justice Kirby agreeing with Justice Gleeson; and also Justice Callinan at paragraph 211 where that ‑ ‑ ‑
GUMMOW J: This is not a natural justice case.
MR REYNOLDS: No, it is not, but I submit that the same idea applies mutatis mutandis.
GUMMOW J: Is this construing the expression:
information that the Tribunal considers would be the reason, or a part of a reason –
in 424A(1)?
MR REYNOLDS: Yes, ultimately. Indirectly, of course, Stead was not a case on that point. Your Honour has made that, but ‑ ‑ ‑
GUMMOW J: I know. That is right.
MR REYNOLDS: But the answer to your Honour’s question is yes. I interpret 424 ‑ ‑ ‑
GUMMOW J: Where does this expression “core reason” come from? It is not used in the section.
MR REYNOLDS: Well, it does not, but I have used that expression to ‑ ‑ ‑
GUMMOW J: I know it is in some of the Federal Court cases but it does not come out of the Act, anyway.
MR REYNOLDS: No, it does not and that is one of the problems, but within the meaning of the Act I only have to go back to show that this was information:
is the reason, or a part of the reason -
Your Honours will have seen that we adopt the reasoning on the interpretation of that phrase which is current in the Full Federal Court which is a decision I will not take you to, but I will give you the reference - in SZEEU v Minister for Immigration (2006) 150 FCR 214. That decision, my learned junior, Mr Izzo, has told me has also been recently applied in a case called NBKT v Minister for Immigration [2006] FCAFC 195 - it is unreported - where Justice Young at paragraph [31] adopted SZEEU and Justices Gyles and Stone agreed with him. So, ultimately though, your Honours ‑ ‑ ‑
KIRBY J: We have had a couple of cases in this Court where this issue which is raised by the notice of contention have been argued. Do you remember what those cases are? Maybe they will be referred to by the respondent.
MR REYNOLDS: Perhaps. So that is our case in‑chief and really submit this case, given the way I have put it, does not really raise the precise interpretation of the meaning of section 424A because no matter what the ‑ ‑ ‑
GLEESON CJ: I notice from the headnote in SZEEU that the Minister in that case apparently did invite the Full Court of the Federal Court to depart from its earlier decisions in relation to the point that was mentioned earlier.
MR REYNOLDS: That is right.
GLEESON CJ: That is to say the meaning of the word “application” in section 424A(3).
MR REYNOLDS: This apparently is a point that the Minister knows about and has made a decision not to raise it for this Court. I am just not entirely certain, just before I sit down, how the notice of contention issues are going to be dealt with. Can I just say something very, very briefly before my friend rises to deal with it. Our problem is that we maintain, particularly on what might be called the exercise of discretion whether to grant certiorari, that neither in the notice of contention nor in the written submissions is the Minister’s case clear on that.
What I was going to suggest, and I gather this is what your Honour the Chief Justice suggested to me, is that the notice of contention could be filed, your Honours can hear the argument from Mr Beech‑Jones on it. It may be, depending on what is put, that we are in a position to respond, but it may be, and I just flag this, that I need to raise with your Honours the possibility of replying to it in writing once it has been finally articulated.
GLEESON CJ: In all events, to the extent to which you are in a position now to say what you want to say about whether there should be leave to rely on the notice of contention and to the extent to which you are in a position now to say anything you want to say about the merits of the notice of contention, this is your opportunity.
MR REYNOLDS: Perhaps if I can respond on the merits of the notice of contention in due course.
GLEESON CJ: No, do what you can now. If ultimately you say you want to put further material in writing, then we will consider whether you should be given that opportunity, but we might as well make use of the time that we have set aside to hear this case right now.
MR REYNOLDS: As I understand it, my learned friend is going to present the argument on the notice of contention which he would generally do in any event, and I would, of course ‑ ‑ ‑
GLEESON CJ: Yes, and that is why we have parties exchange outlines of argument before we come to the oral hearing so that by and large when we come to the oral hearing people know the substance of the arguments that are going to be made. To the extent to which you now know the substance of the argument that is going to be made on the notice of contention, we are interested to hear what you have to say about it.
MR REYNOLDS: As I understand it, it was the point that the decision was not affected by the breach and I have dealt with that. So far as anything else is concerned, we remain to be enlightened.
GLEESON CJ: I understand one of the submissions that the respondent wants to make to be that this is a discretionary remedy that you seek and if in a given case one were to come to the conclusion that the failure to comply with section 424A did not affect the outcome of the proceedings, that could be a reason why the Court in its discretion would deny you the relief that you seek. Is there anything you would like to say about that?
MR REYNOLDS: Again, it all depends on how my learned friend articulates this.
GLEESON CJ: I suppose he articulates it the way I just articulated it, that is to say, that this is a discretionary remedy and if, in this case, for example, we were to come to the conclusion that the failure to comply with section 424A in the result did not affect the decision of the Tribunal, a premise with which we know you do not agree, then in such a case, if we were to come to that conclusion, it would be open to us to decline relief.
MR REYNOLDS: Your Honour, I have put, I hope, detailed submissions on how the decision was affected.
GLEESON CJ: Yes, you do not have to concede the premise, but if the premise were correct, there is a point of law that your opponent wants to raise, that is to say, in cases, of which the present may or may not be an example - that remains to be decided - in cases where failure to comply with 424A does not affect the outcome of the proceedings discretionary relief should be denied.
MR REYNOLDS: That draws a distinction between outcome and the result, on the one hand, and affecting the decision on the other, which is what I have addressed my submissions to and your Honour is raising that distinction with me now.
GLEESON CJ: Yes.
MR REYNOLDS: My difficulty is that – and we did seek particulars of this – is how is it said that the – what is the submission with precision on why the outcome was not affected. If we have shown the decision was affected then that goes, we say, a long way towards showing the outcome was affected. We need a very finely tuned submission on that point and we have not – this is our point about the notice of contention – we have not yet got that and that is what ‑ ‑ ‑
KIRBY J: Can I help you to focus on what at least is troubling me and it is this, that if you stand back from the reasons of the Tribunal and you look at the way in which ultimately the Tribunal disposed of the matter they say, “Well, the real reason for any disinclination of your client to go back to India is not a Convention reason, it is just that he has got into a fight with his former in‑laws and that they are making life difficult and unpleasant over there” and then you come along and say, “Well, by the course that has been adopted and the non‑compliance with 424A we didn’t get a chance to put our best foot forward in relation to our contention that the real reason we don’t want to go back to India is that we fear persecution for religious grounds”.
Now, I just, myself, do not see how anything you can say within the parameters of what has been said before the Tribunal up to date could alter the compelling force of the conclusions that are stated at the end of the Tribunal’s decision, when having chronicled the way you made your complaints, the Tribunal member came back and repeatedly said, “This doesn’t relate to a Convention reason. This is just a personal dispute in the former family of the appellant”.
MR REYNOLDS: Your Honour, we take those passages to be referring to the reasoning on the residual claim. We submit that they cannot be referring to the reasoning on the primary claim and the reason is that that would create an absurdity.
KIRBY J: Ultimately, the whole claim must be fitted into the language of the Convention, primary, residual, beginning, end, and when you look at the language of the Convention it is to deal with great issues, not barneys in a family.
MR REYNOLDS: Can I deal with it this way? What your Honour is doing, with respect, is taking pages 88 and 89 and reading them as reasoning which applies to both what we have called the primary claim and the residual claim and is making findings of fact that vis-à-vis the primary claim, the reason behind the charges was not religious, and vis-à-vis the likelihood of future charges being laid that they are not likely to be laid for religious reasons.
GLEESON CJ: Yes, I think the idea being – and it may be right or wrong as a matter of fact – but the idea being this; these former in-laws of yours who are causing you so much grief hate you and they hate you because they have become obsessed with the idea that you are responsible for the death of their daughter. Well, that might be a very unfortunate thing for you, but it is not persecution for reasons of religion.
MR REYNOLDS: Can I answer this I hope with some precision. What we are talking about here is essentially a matter of construction of pages 88 and 89 as to whether these amount to findings of fact that vis-à-vis what I have called the primary claim and vis-à-vis what I have called the residual claim, that these claims have not established a Convention nexus, particularly because it has not been shown that there is this religious nexus, if I can put it that way.
Now, we submit that it is impossible to construe this reasoning here at pages 88 and 89 as referring back to the reasoning on the primary claim. Can I indicate why? If we go back to what the primary claim is, in essence, it is about charges being levelled in 2001 for reasons of religion. The finding in relation to the primary claim is that no such charge was levelled. It is a logical impossibility to follow that on with a finding that when those charges I have found were never levelled were in fact levelled, they were not levelled for a reason of religion. That is why it is impossible, I submit, to construe the reasons in that way.
Can I give a colourful example of what I mean just to make the point? One cannot interpret reasons of a tribunal of saying (1) “I find this man never went to the hotel”, and secondly, “I find that when he was at the hotel and got in a fight, his intention when throwing a punch was one of self‑ defence”. That is logically absurd.
GLEESON CJ: According to your client’s claims, what was the charge or what were the charges against him?
MR REYNOLDS: In 2001, they were – this is one of the problems, to be fair, that the Tribunal had, is that they were hung on the hook of responsibility for his wife’s death.
GLEESON CJ: Yes, but what was the charge? I mean, being responsible for your wife’s death is probably not ‑ ‑ ‑
KIRBY J: India has a penal code which is very similar to the penal code of Queensland. I mean, they are not a country whose legal system is completely alien to ours, so that it is not as if there would be some strange, weird crime in India. It is very unlikely, anyway.
MR REYNOLDS: Your Honour, I cannot answer that question because the material on the appeal book does not enable me to do so and, apparently, my client was not able to formulate with the greatest specificity what the charge was about either. So that is dealing with ‑ ‑ ‑
HEYDON J: On page 47, which is the statutory declaration, it seems to indicate that:
On December 2001, the Bombay police came to my house and arrested me and my wife and filed charges for Salima’s death . . .
Police filed cases for murder and false charges us.
MR REYNOLDS: This is at line?
HEYDON J: The last reference was at line 18 and the earlier reference was at about line 12. Line 12 “filed charges for Salima’s death”; line 18 “filed cases for murder”. Is that the same thing that ‑ ‑ ‑
MR REYNOLDS: Your Honour is quite right. There are other passages in the Tribunal where the Tribunal member says there was some doubt about the exact nature of the charges. It may be that I am picking that up from the oral evidence rather than from what is in the statutory declaration.
GLEESON CJ: I think the Tribunal had some difficulty reconciling the proposition that there were pending murder charges against him with the fact that he exited India so easily.
MR REYNOLDS: If I can finish the second response to your Honour Justice Kirby, because I have just dealt with how those reasons cannot be read as findings in relation to the primary claim, we agree that they should be read as findings in relation to the residual claim, but your Honours have already heard an argument from me as to how the findings that were made on the residual claim were affected by the breach of section 424A. So they are my two responses no matter which way this is interpreted. Of course, because these are independent fears, both giving rise to this fear under the Convention, my learned friend has to show that this point knocks out both claims and I submit that he cannot do that. If your Honours please, those are my submissions.
GLEESON CJ: Thank you, Mr Reynolds. Yes, Mr Beech-Jones.
MR BEECH-JONES: Your Honours, every point that I seek to agitate that extends beyond this case has as a premise the way that one reads these Tribunal reasons and, indeed, it may be that the four corners of the appeal are decided within the Tribunal reasons. So could I take your Honours back to perhaps, over the pages Mr Reynolds took your Honours to, to explain how we submit the reasons should be construed.
At the outset, can I say we do not, with respect, accept my friend’s dichotomy between a primary claim and a residual claim in the sense that he described them. There is, in fact, a very specific way in which the Tribunal analysed this case. It used the word “residual” but not in the sense my friend used it. Could I take your Honours to the top of page ‑ ‑ ‑
CALLINAN J: Before you do that, is it right, as Mr Reynolds submits, that you do not seek to take any point about information and application?
MR BEECH-JONES: I think the point being I am not instructed to argue that the phrase “purpose of the application” in section 424A(3)(b) is referable to the application for the visa. In other words, that I am not instructed to argue that the Full Court of the Federal Court has been wrong in construing that as a reference to the application for review before the Tribunal.
CALLINAN J: Do you say then that the statutory declaration before the Minister was information?
MR BEECH-JONES: Yes, your Honour. I accept that, your Honour.
CALLINAN J: You accept that. Do you accept that that information was a reason or the reason for the Tribunal’s affirming the decision?
MR BEECH-JONES: No, your Honour, I do not accept that.
CALLINAN J: You will no doubt say why that is so.
MR BEECH-JONES: Indeed, that is principally why I need to take your Honours through the reasons. Can I just, while I have the Act ‑ ‑ ‑
CALLINAN J: Looking at it in abstract, do you say that had there been reliance upon a statutory declaration, which was in part in conflict with other material and that that conflict was relied upon, that the information constituting that conflict or giving rise to that conflict would be capable of being a reason for a decision and therefore a decision made in breach of 424A(1)?
MR BEECH-JONES: Yes, in the abstract. Yes, your Honour.
CALLINAN J: So this is a very facts specific case and you will have to focus closely on the reasons of the Tribunal.
MR BEECH‑JONES: Indeed, your Honour. While I have the Act in front of me, we submitted the relevant reprint was Reprint 9 and it may have some significance because I am not sure if my friend’s version, that is Reprint 8, has section 422B in it and that was applicable. It may inform the matter. We do not seek to draw anything one way or another.
GUMMOW J: No, it does not.
MR BEECH‑JONES: We had Reprint 9 on our list, your Honours.
GLEESON CJ: We have section 422A but no 422B.
MR BEECH‑JONES: I apologise it is not on our list, your Honours. Could I inquire whether your Honours’ reprints have sections 424B and 424C?
GLEESON CJ: No, but we have 424B in annexure A to the appellants’ written submissions. We do not have 424C.
MR BEECH‑JONES: Your Honours will see from the extract in our written submissions that that– and I think this is a point your Honour Justice Gummow raised about how one responds – it provides that the Tribunal, in its invitation, is to specify the way in which the additional information in response is to come and that is either to be by way of a further interview or in a written form which must be provided within a prescribed period.
GLEESON CJ: Just get away from the particular problems that might arise where it is inconsistency that is giving rise to the issue as it is in this case. Put that to one side. Suppose you had a case in which, in his statutory declaration, an applicant had made an admission which produces the consequence that the Convention cannot apply. Suppose, for example, in his statutory declaration the applicant had said these in‑laws loathe me but it is not anything to do with religion, it is because of personal dislike.
Now, is the theory that you accept that at the oral hearing the Tribunal might say, and perhaps should say to the applicant, “How can you possibly succeed in this application? Look at the admission you made in your statutory declaration. If this is persecution, it is not for a Convention reason. What do you have you to say about that?”, but whether or not the Tribunal says that at the oral hearing, following the oral hearing the Tribunal has to give the applicant a document saying, “In paragraph 10 of your statutory declaration you said that the reason these people hate you is not religion. That appears to mean that if what is happening constitutes persecution, it is not on a Convention ground. You are invited to comment on that”.
MR BEECH‑JONES: Your Honour, if I can put it this way, it is the tide of authority which we accept is that that is what would be required, but to add to your Honour’s example, it would occur in a context where at the hearing presumably the applicant would start by saying, “I am a refugee because the harm I fear is for a Convention reason” and then a contradiction would presumably then be brought to their attention, “But you said in your statutory declaration”.
GLEESON CJ: Yes, but that is not enough to bring it to their attention. You have to give them a document later.
MR BEECH‑JONES: Yes, it has to be brought to their attention in writing. That was a battle that was fought long and hard in the Federal Court and the Minister came second and I am not here to argue to overturn the result of that contest. Could I take your Honours to the decision at the top of page 84?
GUMMOW J: I am sorry, I am still – now, I have Reprint No 9. What sections were you talking about?
MR BEECH-JONES: Firstly, section 422B which provides in subsection (1):
This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
GUMMOW J: That is new, I think.
MR BEECH-JONES: It is. It applied to this case. I think in previous cases your Honours have had to consider both a procedural fairness argument and a 424A case where this is only a 424A case. Then your Honour will see the other section was 424B and it provides:
(1) If a person is:
(a)invited under ‑ ‑ ‑
GUMMOW J: That is in Reprint 8.
MR BEECH-JONES: It is in Reprint 8.
GUMMOW J: Yes.
KIRBY J: Was that engaged, given that the appellants were not invited?
MR BEECH-JONES: No, it would need to have been engaged if section ‑ ‑ ‑
KIRBY J: But it was not in fact engaged, was it?
MR BEECH-JONES: Not in this case, no.
KIRBY J: So we are not really concerned with it, are we, unless it throws light on what the meaning of 424A is?
MR BEECH-JONES: No, your Honour, I think his Honour Justice Gummow inquired as to what the form of the invitation must be and the only reason I draw it to your Honours’ attention is 424B makes provision in relation to that.
KIRBY J: But it is immaterial to this appeal.
MR BEECH-JONES: Yes, your Honour.
GUMMOW J: That is a matter for me to think about.
CALLINAN J: And 424C, was it in force?
MR BEECH-JONES: Yes, your Honour.
KIRBY J: Do you suggest that 424B throws some light on 424A?
MR BEECH-JONES: Not for the matters that I am about to address on, your Honour.
GUMMOW J: It is probably a good idea to read the whole of Division 4, I would have thought.
MR BEECH-JONES: Just having noted that, could I take your Honours back to page 84. At the top of the page the Tribunal recounts what my friend described as the difficulties. In the last two sentences, and as we understand this characterisation of his case has not been challenged, recounts:
As his case has been put it is this last charge –
that is the 2001 charge, that is the charge that occurred after the suicide of his first wife:
and the related death of his first wife which give rise to the harm he fears. On his evidence he had no difficulties with the police or the family of his first wife after he divorced her in 1999 until her suicide in 2001.
The Tribunal had identified what was said to be the source of the harm he feared on page 84.
KIRBY J: The applicant is recorded there as stating that the charge remains unresolved and the charge, as Justice Heydon pointed out, appears to have been a charge of murder – page 47.
MR BEECH-JONES: Yes, your Honour.
KIRBY J: I just cannot believe that anybody could leave India under a charge of murder without being apprehended at the barrier.
MR BEECH-JONES: Be that as it may, your Honour, from page 84 to page 86 the Tribunal then deals with these credit aspects, including the statement in the middle of page 84:
First the applicant husband did not impress me as a reliable witness. I found the modifications and refinement between his written claims and his oral evidence, within his oral evidence and the inconsistency with that of his wife’s oral evidence as to when he was actually arrested in 2001 to be unsatisfactory.
That is the part I think my friend seeks to rely on. As we understand it, it is directed to the refinements between his written claims and his oral evidence about the charge in 2001 and in particular about the dates.
HAYNE J: Does it follow from what you have said in relation to the hypothetical question about a statutory declaration and whether that is within 424A(3)(b), that the same consequence follows in respect of the written claim made by an applicant when first applying for a protection visa, that that is or contains information which must attract the 424A regime, for if it does, what is that telling you about 424A(3)(b)?
MR BEECH-JONES: Your Honour, I can only – I am not sure about the second part of your Honour’s question, but in terms of the Al Shamry line there is no difference between a statutory declaration provided in support of the protection visa application and a written claim.
CALLINAN J: That would be a very inconvenient result. Does that mean that – one would think that what was said early, on first arrival, and then what was said in order to make an application to the Minister might be much more candid, perhaps unrehearsed and valuable, but yet if there is any departure between any of that material and what is said on the application to the Tribunal, the Tribunal has to go exhaustively through each departure or possible conflict and say, “Look, this may be information upon which I will rely to make an adverse finding against you. What do you say about each and every part of it?” It is an unlikely sort of result, is it not?
MR BEECH-JONES: It is productive of a lot of the inconvenience particularly when one has regard that the function of the Tribunal is to review the decision of the delegate in the first place.
CALLINAN J: Exactly.
MR BEECH-JONES: And under 418 part of the process of review is to have the file of the delegate sent up to them and, indeed, your Honours may recall that whole discussion in Muin and Lie about this ‑ ‑ ‑
KIRBY J: But on the other hand, the Department has a file. The applicant does not necessarily, and often will not, keep material. Many applicants are themselves illiterate or get other people to help them in preparing these documents, and if they are relevant to the determination then it is not all that unreasonable that save for those that have come up in the current application that they should be reminded about them and given a chance to explain them because there may be explanations.
MR BEECH-JONES: Your Honour, I accept – can I perhaps avoid the debate on this because there is a flurry of notes occurring to my right about the position in Al Shamry and I think I would like to just consider that a bit more closely, but perhaps continue with my argument about the Tribunal’s reasoning ‑ ‑ ‑
KIRBY J: What is Al Shamry? You know all these cases. As far as I am concerned I do not know them and I do not particularly want to.
MR BEECH-JONES: I am sorry. Al Shamry was the first of the Full Court decisions that decided that section 424A(3)(b) was referring to the application for review to the Tribunal and not to the application to the delegate for the protection visa.
CALLINAN J: What is the reference to that, please?
HEYDON J: (2001) 110 FCR 27.
MR BEECH-JONES: And then that was followed in SZEEU which I will take your Honours to.
What is more, all I have to show when one looks at the question of confidence – those references in Aala I took your Honours to – is that there is a reasonable basis in the argument that I am putting to your Honour. If there is, then your Honour cannot be confident that there is a clean reasoning process manifest here in the Tribunal’s reasoning in order to down my clients on the issue of discretion. So that is why, as I say, it is a very difficult task, I submit, the Minister essays on this issue of discretion.
GLEESON CJ: Discretion is one way the Minister puts the case on the assumption, which of course, you challenge that there is an impeachable reason for upholding the delegate’s decision ‑ ‑ ‑
MR REYNOLDS: Unaffected by the breach?
GLEESON CJ: Yes, that is what I meant by unimpeachable, but the alternative way the Minister puts the case is to say, on the construction of the statute, if that premise is accepted there is not invalidity. What is your argument about that?
MR REYNOLDS: I put to your Honours before that there is a decision in this Court called SAAP and gave your Honours references to three passages and I said it was authority for the proposition that once there is a breach of section 424A then invalidity follows. So that, as I submitted at the beginning of my reply, is the end of that argument. The Minister has not challenged SAAP or the decision of the Full Federal Court in SZEEU, so that will not work either.
GLEESON CJ: That would apply in a case where an applicant, in the material that he should have been informed about but was not, had actually made an admission that was inconsistent with an entitlement to Convention protection.
MR REYNOLDS: He has made an admission. I think your Honours were talking about something to do with admissions yesterday.
GLEESON CJ: I do not mean admission of law, of course.
MR REYNOLDS: No. Can I make this concession, that if – and I think this, with respect, is the point that your Honour the Chief Justice is getting at – take this example. If the section about protective visas said, “No Indian national can obtain a protective visa” and there was no issue in this case that my clients were Indian nationals, indeed they said so, and I think this is what your Honour is getting at, in their documentation. If there were no doubt about that fact and no doubt that as a matter of law it would follow that protective visas could not have been granted, then that is an example of a clear hit point of law based upon an undisputed fact which would enable certiorari to be exercised against my clients, and I concede that, but I also submit that that is nowhere near this case.
GLEESON CJ: I understand that, but you would say that on a discretionary basis?
MR REYNOLDS: Yes.
GLEESON CJ: All right.
MR REYNOLDS: If your Honours please, those are my submissions.
GLEESON CJ: Thank you, Mr Reynolds. We will reserve our decision in this matter and we will adjourn until 10.00 am tomorrow.
AT 3.07 PM THE MATTER WAS ADJOURNED
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