SZCOQ v MIMA & Anor

[2008] HCATrans 88

[2008] HCATrans 088

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S66 of 2007

B e t w e e n -

SZCOQ

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 FEBRUARY 2008, AT 2.29 PM

Copyright in the High Court of Australia

MS V.A. McWILLIAM:   May it please the Court, I appear for the applicant.  (instructed by Abrahams & Associates)

MR S.B. LLOYD:   Your Honour, I appear for the Minister.  (instructed by Sparke Helmore)

GUMMOW J:   Yes, Ms McWilliam.

MS McWILLIAM:   This application raises two propositions.  The first is a supplementary point that is not in the application book, however, an outline of my argument was filed this week.  To the extent that the Court’s leave is required to raise this argument I seek leave.

GUMMOW J:   That is the document headed “Applicant’s Supplementary Submission” filed on 6 February?

MS McWILLIAM:   Yes, it is, your Honour.

GUMMOW J:   Right.  Yes, we have that.  Have you seen this, Mr Lloyd?

MR LLOYD:   I have, your Honours.

GUMMOW J:   Yes.

MS McWILLIAM:   The issue is essentially whether the principle of beneficial construction as articulated in Wu Shan Liang has been misapplied by the majority of the Federal Court.  The notion of a Tribunal’s reasons being given a beneficial construction is that if one can understand what a Tribunal is saying from reading its decision as a whole, then the court may ignore loose language or unhappy phrasing.  What a court cannot do, in my submission, is to apply the principle in Wu Shan Liang to a situation where the Tribunal’s reasons are not ‑ ‑ ‑

GUMMOW J:   It is not something that was invented in Wu Shan Liang, he has just restated it.

MS McWILLIAM:   Yes, or confirmed.

GUMMOW J:   Yes.

MS McWILLIAM:   Yes.

GUMMOW J:   There is nothing revolutionary about it.

MS McWILLIAM:   No, and I am not suggesting that the principle is not clear, your Honour, I am suggesting that in this case the principle was misapplied.  If I could take your Honours to Justice Moore’s reasoning to show how this occurred.  It is at application book 46.  His Honour Justice Moore was considering whether the Tribunal had regard to a document, that document being a charge sheet, and what was meant by an observation that the Tribunal made.  At paragraph 15 on ‑ ‑ ‑

GUMMOW J:   Do we have the charge sheet?

MS McWILLIAM:   Your Honours, for some reason it is not in the application book, however, if you would be assisted by it I have copies.

GUMMOW J:   There is no objection to this, is there, Mr Lloyd?  Just give us a minute, we will stop the clock while we read this.  Is it a translation?  No, it is in English.  There is a document of four pages, the last four pages, that is not the charge, is it?  That is the communication to the authorities on which they seem to have acted, is that the idea?

MS McWILLIAM:   Yes, I think that is how you read the document, your Honour.

GUMMOW J:   Yes, go on.

MS McWILLIAM:   Given that that document is fresh in your mind I might take your Honours to the Tribunal’s decision to show what the Tribunal said about it, and it is application book page 16 paragraph 56.

GUMMOW J:   Yes, we have read that:

The Tribunal accepts as plausible the applicant’s claim that a charge was laid against him in early 2002 but has no information to support the applicant’s claim that this charge was politically motivated and does not accept that this was the case.

MS McWILLIAM:   Yes.

CRENNAN J:   What do you say about Justice Besanko’s conclusions to be found at page 52 in relation to the charge sheet which we have just read where his Honour says:

The contents of the charge sheet do not as a matter of logic dictate a conclusion that the charge was politically motivated.

He goes on to find it was open to conclude in the context of your argument about beneficial construction and so forth.

MS McWILLIAM:   Yes, Justice Besanko agreed with Justice Moore that Wu Shan Liang applied.  Your Honour will find that back in the decision.

GUMMOW J:   We know that, but the real question is ‑ ‑ ‑

CRENNAN J:   There is an express finding by his Honour in relation to the charge sheet.

MS McWILLIAM:   Yes, and there was an express finding by Justice Buchanan that there was no regard had to the charge sheet, so you have two judges who are at odds in their findings and then Justice Moore declines to ‑ ‑ ‑

CRENNAN J:   Where do we find that of Justice Buchanan?

MS McWILLIAM:   Justice Buchanan, page 56.  A better statement is actually on page 58 at paragraph 62:

I have come to the view that the RRT simply dismissed the charge sheet material as irrelevant and did not take it into account or have any real regard to it.

So you have one judge coming down on a legitimate side, one saying illegitimate, and then Justice Moore declining to decide on the basis of applying Wu Shan Liang, so the application of the principle in Wu Shan Liang was critical in this case.

My submission is that the way that Justice Moore dealt with it – which I have not taken your Honours to, but essentially he had two options.  That is back on application book page 46.  In paragraph 15 he takes a beneficial construction and says you draw the inference that the Tribunal had regard to it.  Paragraph 16 he says a less beneficial reading is that the tribunal “may not have read the charge sheet”.  Then his Honour says these crucial words:

The analysis in the preceding paragraph is another and should be preferred, consistent with the approach demanded by the High Court in Wu Shan Liang.

In my submission, that is taking the principle of Wu Shan Liang too far.  Wu Shan Liang may be applied as a bandaid to sloppy language but surely it cannot be applied as a bandaid to sloppy reasoning.

The point is of legal significance because Justice Besanko specifically agreed with Justice Moore on this point.  So you have a majority decision in the Full Federal Court which will bind single judges at first instance and federal magistrates and the principle of Wu Shan Liang is applied on an almost daily basis, not only in migration law but it has wider ramifications for administrative decision‑makers.  So they would be bound by this application of Wu Shan Liang which Justice Moore says is demanded by the High Court.

The second point that I raise is to demonstrate to your Honours that at the end of the day there is a prospect of success, if special leave is granted and it is decided that Justice Moore’s application of Wu Shan Liang was incorrect and it is essentially to support Justice Buchanan’s judgment and the reasoning in that judgment.

I have already taken your Honours to the crucial paragraph where his Honour concludes that the Tribunal did not have regard to the charge sheet.  Your Honours have the charge sheet before you and the essential features of that charge sheet are that the applicant (a) was charged, that the informant was a Member of Parliament, that it is stated in the charge sheet that the accused had no respect for democracy and was involved in many anti‑government activities and that the incident giving rise to the charge was caused by political rivalry and a political grudge.

My submission is that the Tribunal cannot have made the comments it did about there being no information before it if it had read the charge sheet at all.  One cannot just pick up a document, note the date, put it back down and be taken to have read the document or to have had regard to that document.  In the same way, all that the Tribunal records, and your Honours will find it at page 8 of the application book paragraph 28:

the Tribunal received from the applicant a Charge Sheet dated March 2002 which concerned alleged offences by the applicant.

That is all that is said.  It is noted that it had a charge sheet before it and it has a date.  It does not even say the type of charge or who the informant was and in this particular case when the strength of the document was such that there was political information on it, for the Tribunal to not have any reference to such information and, indeed, to make statements that were completely at odds with the information on the charge sheet, indicates that the Tribunal just did not read it.

GUMMOW J:   Do you want to say anything further about page 16 paragraph 56 of the Tribunal’s reasoning?  We looked at this before, page 16 paragraph 56.  The second last sentence has the words “but has no information to support”.

MS McWILLIAM:   Yes.

GUMMOW J:   What is wrong with that statement?  Did it have information to support?

MS McWILLIAM:   It did have information to support and that information was what was contained in the charge sheet.  If you read it closely:

The Tribunal accepts as plausible the applicant’s claim –

The applicant had claimed that a charge was laid against him.  That makes no reference to the charge sheet –

but has no information to support the applicant’s claim that ‑ ‑ ‑

GUMMOW J:   If you are going to invoke Wu Shan Liang, you have to read it as saying, but has no information other than what appears in the face of this document to support the claim.  Is that not how one would read it?

MS McWILLIAM:   If you are applying Wu Shan Liang ‑ ‑ ‑

GUMMOW J:   Is that correct?  Was there information other than what appeared on the face of the document to suggest some malicious prosecution of a political nature?

MS McWILLIAM:   No, there was not.  However, to read in the words that your Honour has read is to apply Wu Shan Liang impermissibly because it is not clear on the face of the Tribunal’s decision as a whole that the Tribunal was meaning other than the charge sheet.  There is no reference to anything that was contained in the charge sheet.  The last sentence in that paragraph:

The Tribunal finds that nothing in this material adds support –

that is clearly incorrect.  There were a number of things that added support in that material and that is why I say the Tribunal cannot have read this document because it would not have said something like “nothing in this material adds support”.

CRENNAN J:   I think paragraph 32 on page 9 is important in that context because, of course, the Tribunal were looking at the whole of the evidence, not just the charge sheet.

MS McWILLIAM:   Yes.  Although there was a concession made that if the Tribunal had not had regard to the charge sheet and its contents, that was a jurisdictional error and that concession, I understand, is played up all the way through.

CRENNAN J:   I am just putting to you that the charge sheet has to be taken into account together with this evidence which could explain, certainly, that the Tribunal refers to having no information to support the applicant’s claim that this charge was politically motivated.  In other words, if you take Justice Besanko’s finding that it was open to find the charge sheet standing alone did not support that allegation, the other evidence then is summarised, as I apprehend it anyway, in paragraphs 30 to 33.  In other words, what you are facing is there is a finding that it was open on looking at the charge sheet that it was not politically motivated, then the Tribunal looks at the other evidence and comes to the conclusion which it did come to.  Where is the error in that?

MS McWILLIAM:   The error is that it is not clear on this paragraph and to simply say, well, it was open, is to engage in the same error that Justice Moore did which was to say, “Well, we do not really know whether the Tribunal had regard to this piece of evidence but it is open both ways and I will apply Wu Shan Liang to say I am going to assume that the Tribunal did not err”.  It cannot be that every time you have a Tribunal’s decision where you cannot understand what the Tribunal meant, that a review in court is simply allowed to say, “Well, I am going to err on the side of applying the beneficial construction point, I am going to assume that the tribunal did not err”.

There was certainly other evidence to make such a finding open but the fact that there is nothing in this decision to show that the Tribunal had genuine and proper consideration to this charge sheet is, in my submission, a jurisdictional error.

GUMMOW J:   Why is it a jurisdictional error?

MS McWILLIAM:   Because the Tribunal was bound to take into consideration ‑ ‑ ‑

GUMMOW J:   It may be an error but why is it a jurisdictional error?

MS McWILLIAM:   The Tribunal was bound under the Act to take into consideration material that was put forward by the applicant on a consideration that it considered material to its decision and that is a concession point.  Unless there is anything further from your Honours.

GUMMOW J:   Thank you.  Yes, Mr Lloyd.

MR LLOYD:   In relation to the Wu Shan Liang issue, my friend’s supplementary submission suggests that that principle does not apply in circumstances where the Tribunal’s reasoning is not clear.  In my submission, it only applies in circumstances where it is not clear.  There has to be some ambiguity in the language of the decision‑maker to decide whether or not one applies what is generally referred to as the beneficial construction approach summarised in Wu Shan Liang.

In this case, Justice Moore, who seems to be the principal target of the alleged error, sets out correctly in paragraph 14 on page 46 the principle from Wu Shan Liang and refers to Justice Sackville’s similar observations, albeit in dissent in Hu.  Then in paragraph 15 his Honour in effect notes one possible construction and puts into brackets “putting aside the charge sheet” what might be thought to be the looseness of language which was involved in the Tribunal’s decision.

So, on one view, what the Tribunal was saying was it had no information, it was saying no information apart from this document, and that is one view and if you read it that way then the entire decision is consistent.  His Honour approaching correctly the principle of Wu Shan Liang in next sentence says:

This analysis of the Tribunal’s approach is consistent with what, in substance, was its finding of fact that the laying of the charge was not politically motivated.

So his Honour is doing the correct thing by looking at the paragraph in a contextual sense.  In paragraph 16 he notes that it is possible to give it another construction and to find error to support a view that this material was not taken into account but about halfway through that paragraph he notes that there is some reason to believe that that view is lessened:

That tension would be lessened, although not eliminated, if one infers reasoning on the part of the Tribunal that the charge was probably false.

That reasoning seems overwhelming because, although the charge sheet which the Court has seen refers to a number of political things, one of the things it alleges is that the applicant was this senior person in the Awami League, something he himself never claimed to be.  So the implication is, what is in the charge sheet is false.  The question is, did the person who lodged the charge do it for political reasons?  The person who lodged the charge was a politician, so no doubt if he was going to lodge a false charge he would facilitate his own position in politics but it does not mean he is lodging it for a political reason.  So, it is entirely consistent and certainly

consistent with the Tribunal’s view that nothing else in the applicant’s evidence suggested any political connection.

So, in my submission, there is nothing in what Justice Moore says which is inconsistent with Wu Shan Liang or is a misapplication of it.  His Honour has said that there was a certain looseness of language in saying no information; he should have said no information putting aside the charge sheet.  If you read it that way, it is completely orthodox.

In relation to the other point raised, which is the question of whether or not there would be jurisdictional error, at first instance my client apparently made the concession that if the material was not considered, it would be a jurisdictional error.  While I consider that concession is, well, wrong at that level of breadth and certainly overstates the position, like no court who is bombarded with material, no administrative decision‑maker is bound to look at every sheet of every piece of paper necessarily.  However, we accept that that concession has been made. 

As a result, in the court below – and it was not disputed in the court below, so the whole approach in the court below was whether or not properly considered in this case this Tribunal did look at the document properly.

GUMMOW J:   What, if anything, did Federal Magistrate Driver say on this particular point as to the charge sheet?

MR LLOYD:   Federal Magistrate Driver says in paragraph 20 on page 34 that there are several inferences, one which would lead to the conclusion that the Tribunal had not looked at the material and two others that would not lead to that conclusion.  His Honour just said he did not consider the applicant discharged its onus of proof in showing that the Tribunal had not considered it.  The Federal Magistrate gets there without a reference to Wu Shan Liang, as I recall, but just on the basis of balance of probabilities.

GUMMOW J:   Thank you.  Anything in reply?

MS McWILLIAM:   The only point I would make is to just highlight that last one; the fact that Federal Magistrate Driver found there were three possible ways to read that paragraph, Justice Moore found there were two possible ways, Justice Buchanan came down on the side that demonstrated error and Justice Besanko came down on the side that did not demonstrate error.  The fact that four different judicial officers cannot agree as to what this paragraph means merely highlights the fact that it was not clear enough in order to apply the Wu Shan Liang construction.

GUMMOW J:   We are not satisfied that the treatment by the majority of the Full Court of the Federal Court of the reasons of the Tribunal displays any error of principle by that majority, nor does the case otherwise require intervention by this Court in the interests of justice.  Special leave is refused with costs.

AT 2.53 PM THE MATTER WAS CONCLUDED