Tedella v MIMA

[2002] HCATrans 176

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M79 of 2001

B e t w e e n -

SOLOMON KAHSAY TEDELLA

Applicant

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 MAY 2002, AT 10.31 AM

Copyright in the High Court of Australia

MR A.F.L. KROHN:   May it please the Court, I appear for the applicant.  (instructed by Erskine Rodan & Associates)

MR A.L. CAVANOUGH, QC:   If the Court pleases, I appear with my learned friend, MR C.G. FAIRFIELD, on behalf of the respondent.  (instructed by the Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Krohn.

MR KROHN:   May it please the Court.  Your Honours, apart from the written submissions upon which I rely, I seek this morning only to draw the Court’s attention to the fact that the Court recently gave special leave in the matter of Gamaethige.  There is a transcript of the proceedings before the Court.  It was heard by their Honours Justices Gummow and Kirby.  It is at tab 6 of the applicant’s materials and I draw the Court’s attention to that because ‑ ‑ ‑

GLEESON CJ:   Just a minute.  Tab 6 - yes.

MR KROHN:   Am I correct, your Honour?

GLEESON CJ:   You are.  Is there some particular part of that you want to ‑ ‑ ‑

MR KROHN:   It is simply so that the Court may have it to hand if there was a question of the basis on which that special leave was given.  The exchange is, perhaps, somewhat elliptical but, as I understand it, special leave was given in that case because of the issues raised by the reasoning of his Honour Justice Finkelstein who dissented in the Full Court in Gamaethige and to whose reasons the applicant has referred in the outline of submissions in this application.  That reference is found at page 91 of the application book, paragraph 21.

HAYNE J:   Even were it to be assumed that Gamaethige were to succeed in this Court, how would that affect the outcome in this case?

MR KROHN:   Your Honour, in my submission, this case raises the question of the boundaries of illogicality or failure of logic as an error of law and both in general terms under the provision of an enabling statute and, in particular under the Migration Act, and although it arose under the old Part 8 of the Act as, indeed, did Gamaethige, nevertheless those issues will continue to apply because ‑ ‑ ‑

HAYNE J:   Perhaps that may be so, but can you put at its highest the best single example you have of the lack of logic of which you complain in this case?

MR KROHN:   At its highest, your Honours, it is set out, in my respectful submission, in the judgment of his Honour Justice North at first instance who was satisfied that there had been a lack of logic and the incident is, in effect, the simple rejection of the genuineness of two critical documents on the basis of a rejection of the corroborative witness who was brought forward and then, as his Honour Justice North analysed it, a failure in the reasoning process of the Tribunal when it set upon the task of assessing those documents upon the internal material.

HAYNE J:   But what is the lack of logic?  What I am having difficulty with in this area is exactly what is meant by “a want of logic”, because at the moment, it seems to me, all that happens here is that there is a finding of fact which is not accepted and which is challenged and that seems to me to be radically different from saying that there is a want of logic.

MR KROHN:   Your Honours, the Tribunal is obliged, both in general terms as an administrative tribunal and also under the terms of the Act, including the obligation, for example, in section 430 of the Act to refer to evidence - the Tribunal is obliged to proceed on the basis of what it accepts as evidence, although not being bound by the rules of evidence and then to accept some propositions, to draw inferences and to reach a conclusion on the ultimate question.

The reliance upon evidence or inference or, perhaps, things that are notorious as the foundation for the reasoning process is part of the reasoning process in itself and a simple a priori rejection of something which is not, on the face of it, inherently implausible at all, in my submission, is a logical error.  It is a failure to approach the task rationally and that goes beyond, in my submission, and as his Honour Justice Finkelstein dissenting in Gamaethige expressed it, it is a separate thing from the course which was rejected by the Court in Epeabaka.

It is put in that way, that effectively you have a tribunal which says, “Well, here’s somebody who some might think is well qualified to be giving helpful corroborative evidence about the form of documents – he was a military officer and so on.  I reject his evidence.  I then assess the documents and I do so on the basis of all manner of assumptions, explicit or implicit and I conclude that the documents are fabricated or contrived or not to be accepted”.

In my submission, his Honour Justice North correctly characterises that as taken as a whole, a logical process, and there is a want of logic and the degree of irrationality, whether it amounts to Wednesbury unreasonableness or not, is itself, in my submission, a failure of the Tribunal to apply itself in the way the law requires to the task that it has.

For that reason the special leave granted in Gamaethige, in my submission, should be followed by special leave given in this case and it would be appropriate, perhaps depending on the judgment of the Court, for the two matters to be heard together because, in my submission, they raise, in essence, the same central concept, the same issue concerning the manner in which an administrative tribunal should go about and do its work and that ‑ ‑ ‑

GLEESON CJ:   Or do they raise an issue concerning the manner in which a court that is not supposed to be conducting merits review should go about and do its work?

MR KROHN:   Your Honour, the point of the boundary between merits review and judicial review can be a fine one, but I respectfully submit that his Honour Justice North correctly draws attention to the fact that one indication that a court is staying within its own confined proper area is that, to allow an application for judicial review, set aside the lower decision.  If that does not by itself require the Tribunal below to come to a different conclusion, that is a good indication that the court has confined itself to judicial review.

It is open for a court on review, in this case, to set aside the Tribunal’s decision and remit it and a different member of the Tribunal may well approach the claim in a quite different way, may weigh up evidence differently and may again reject it without falling into error.  In my submission, that is a proper indication that the court is staying on the right side of the line.

Apart from those submissions, unless your Honours have any further matters arising from the written submissions, those are the submissions that I seek to make in this matter.

GLEESON CJ:   Thank you very much, Mr Krohn.

MR KROHN:   May it please the Court.

GLEESON CJ:    We do not need to hear you, Mr Cavanough.

The Court is of the view that there is insufficient reason to doubt the correctness of the decision of the Full Court of the Federal Court in this matter to warrant a grant of special leave to appeal, and the application is dismissed with costs.

AT 10.41 AM THE MATTER WAS CONCLUDED