W26 v MIMA

[2003] HCATrans 366

[2003] HCATrans 366

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P35 of 2002

B e t w e e n -

W26

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 SEPTEMBER 2003, AT 2.40 PM

Copyright in the High Court of Australia

MR R.W. KILLALEA:   If the Court pleases, I appear for the applicant.  (instructed by the applicant) 

MR S.G. GAGELER, SC:   If the Court pleases, I appear for the respondent with MR S.B. LLOYD.  (instructed by Australian Government Solicitor) 

GUMMOW J:   Yes, Mr Killalea.

MR KILLALEA:   Your Honour, the basis of this application is that there was illogicality in the reasoning of the Tribunal below, in the Refugee Review Tribunal, and the applicant says that that illogicality constitutes a reviewable error of law.  Now, again ‑ ‑ ‑

GUMMOW J:   We have had something to say about illogicality, have we not, in recent months?

MR KILLALEA:   Yes, in S20.  Do your Honours have a copy of the supplementary submissions?

GUMMOW J:   Yes, we do.

MR KILLALEA:   The applicant’s supplementary argument.  What the applicant says, just shortly, in relation to that, if I could take ‑ ‑ ‑

GUMMOW J:   Yes, there they are.  Yes, we have read these, actually.

MR KILLALEA:   You have read them, your Honour?

GUMMOW J:   Yes.

MR KILLALEA: Illogicality was not made out, but if I can take you to paragraph 4, the applicant submits that the majority of the Court can be seen to have expressed or impliedly acknowledged that review is available for reason of illogicality in the decision‑making process. I have referred your Honours to the citations there at paragraph 4 of the paragraphs. The basis for review in this matter in the Federal Court was review being sought on what was then sections 476(1)(b), (c) and (e) of the Migration Act 1958.

In the Full Court below, his Honour Justice Finkelstein considered the Tribunal’s reasons for decision, and the applicant submits he correctly held that the Tribunal’s decision demonstrated an illogical approach to decision‑making.  Your Honours will find that in the appeal book at 59, point 6, in paragraph 47.  When one looks to the whole of that judgment, the applicant lost in the Full Court by a majority, two judges to one, but Justice Carr ruled in his favour on the appeal, and I submit that this Court can fairly infer that so, too, would have his Honour Justice Finkelstein, if he had not considered that illogicality was not reviewable.

CALLINAN J:   Mr Killalea, if I go to page 59, paragraph 46, his Honour says at line 4:

What does this mean?  One thing it must mean is that the appellant had not been imprisoned on account of his political activities.  Why then was he imprisoned?  To this the tribunal did not provide an answer and, from the evidence that was before it, the tribunal could not provide an answer.

Tribunals – courts – do not have to answer every question.  It may be a great deal more satisfactory a decision if all the loose ends were tied up.  I can accept that.  At the moment, even assuming illogicality or bare illogicality is enough – assume that – I do not see that that necessarily follows, because the Tribunal did not tie up a loose end that that is necessarily an illogicality.  I may be wrong about that, but ‑ ‑ ‑

MR KILLALEA:   I would certainly say that the illogicality claim, you assume, must go in a real sense to the decision itself, and not simply be peripheral to the decision.

CALLINAN J:   Well, Mr Killalea, that really is not an answer to my question.  Is it not simply the position that a loose end has not been tied up?  Courts often do not know all the facts.  Tribunals, in particular, when they are dealing with events which have taken place some distance away, to which there are no witnesses, and which occur in another country – there must be hundreds of questions that Tribunals cannot answer.  I do not see that that is an illogicality, even.  You may be able to persuade me that it is, but how is it an illogicality?

MR KILLALEA:   Because the evidence before the Tribunal was that he had been imprisoned, for reason of his political opinion ‑ ‑ ‑

CALLINAN J:   Yes.  The Tribunal accepted that evidence that he had been imprisoned, but the Tribunal then said:

I do not accept that the Applicant was imprisoned and tortured by reason of his political opinion.

Now, the Tribunal did not know why he was imprisoned, and it did not have to answer the question why he was.  All it had to decide was whether there was a political aspect to it, and it decided that against him.

MR KILLALEA:   The applicant says that if the Tribunal was to find that he was not imprisoned for reason of political opinion, then the Tribunal had to have some logical ground or probative material on which to base that, because that decision goes to the heart of attainment of jurisdiction under section ‑ ‑ ‑

CALLINAN J:   The Tribunal might not have known.  How was the Tribunal to know?  Assuming that he did not persuade the Tribunal that he was imprisoned for a political reason – assume that for a moment – he did not persuade the Tribunal of that.  That is the end of the inquiry.  The Tribunal does not then have to explore other possibilities.  It might never know. 

MR KILLALEA:   It might never know, but it is required to reach a state of satisfaction, properly, I submit, on the basis ‑ ‑ ‑

CALLINAN J:   No.  The only state of satisfaction that it has to reach is whether he was imprisoned, relevantly, for a political reason, and it reached a state of satisfaction on that that he was not.

MR KILLALEA:   Yes, but, with respect, without any probative material before it on that point ‑ ‑ ‑

CALLINAN J:   Because he was not persuasive on it.  He did not convince the Tribunal.

MR KILLALEA:   It is often the case that persons who come before the Tribunal are not blessed with a plethora of documentary material to support their case, and they come forward on their own credibility.

CALLINAN J:   They may need to be persuasive in some other way.  They have to satisfy the Tribunal, and he just did not satisfy the Tribunal on this point.

MR KILLALEA:   Yes, but it is not for the Tribunal to act capriciously or arbitrarily in determining whether or not it is satisfied.  As his Honour Justice Gummow has pointed out in Minister v Eshetu ‑ ‑ ‑

CALLINAN J:   He was not believed.  It is not to act capriciously to disbelieve somebody.  You seem to be saying that the Tribunal should have believed his expressed reason for being in prison. 

MR KILLALEA:   Well, if you are to disbelieve somebody, there must be some reason for it.  It is very easy to say, “I disbelieve you”, but what is your reason?  Is there any logic in your coming to that conclusion?  Is there any probative material upon which you can act?

CALLINAN J:   He just was not persuasive.  He was there personally before the Tribunal, was he not?

MR KILLALEA:   I think that is right.

CALLINAN J:   He just did not persuade the Tribunal – his story did not persuade the Tribunal.  He personally did not persuade the Tribunal.

MR KILLALEA:   Can I take your Honour to folio 19?  It is part of the Tribunal’s decision.  Your Honours will see there, beginning at the foot of 18 and through to the end of the first paragraph on folio 19, it is in there that, on line 4:

I do not accept the Applicant was imprisoned and tortured by reason of his political opinion ‑ ‑ ‑

CALLINAN J:   Yes, but you have to go earlier than that:

Having regard to the view I have formed of the Applicant’s credibility – 

line 17. 

MR KILLALEA:   The problem with line 17 is this, your Honour:

Having regard to the view I have formed of the Applicant’s credibility – 

that is, vis-à-vis being imprisoned, he then says:

I do not accept that he was detained for two days in 1987 – 

Now, there is manifest illogicality in that, in this way ‑ ‑ ‑

CALLINAN J:   No, you have to even go earlier than that.  At page 18:

Having regard to the advice of the Australian Department of Foreign Affairs and Trade, I consider it implausible ‑ ‑ ‑

MR KILLALEA:   Yes, but if I might just take your Honour through the chronology of this?  You see, the Department of Foreign Affairs and Trade has said what it has said on folio 18 in March 1996.  In 1994, the applicant claimed he was imprisoned and tortured.  It seems there is an acceptance that he was imprisoned, but certainly not for the reason of his political opinion.  Second paragraph on folio 19 begins:

Having regard to the view I have formed of the Applicant’s credibility, I do not accept that he was detained for two days in 1987.

Now, that is taking things out of order.  If, in fact, he had been detained in 1987, for the reasons which he said he was detained, and that was for reason of political opinion, then the context of the Australian Government report of March 1996 has to be seen differently, because it is against the background of having been detained in 1987 that he is then again engaged in political activity in 1994.  With respect, the Australian Government’s report of 1996 does not give any indication that it is saying, in all cases, where the present activities of a – let us say – a lesser nature, then the ramification is likely to be no more than a short time in gaol.

In fact, this applicant, had engaged in political activity in 1987, he had been detained, so in 1994 he is coming before the authorities on the second occasion.  Now, why would it not be that, on that second occasion, he is imprisoned for reason of his political opinion?  It is his second offence, in simple terms, and so the illogicality grows from the point where the Tribunal says, “I do not believe you were imprisoned for your political opinion”, without regard ‑ ‑ ‑

GUMMOW J:   This is not an appeal from the Tribunal.  It is an appeal from the Full Federal Court.  What do you say is the error in the judgment of Mr Justice Nicholson, at pages 54 and following, which at the moment seems to me pretty clear and persuasive?

MR KILLALEA:   Yes, your Honour, Justice Nicholson, as I quickly recall, he has particularly covered the issue of credibility ‑ ‑ ‑

GUMMOW J:   Exactly.

MR KILLALEA:    ‑ ‑ ‑ but the passages he refers to all go to the issue of credibility vis-à-vis the finding in relation to 1994.

CALLINAN J:   No, that is not right.  I mean, I do not want to keep on going back to the Tribunal, but he was not believed on a number of matters.  He was rejected on credibility on a number of different bases.  One was as to his activities, generally ‑ I am just trying to find it.  I had a passage – but there are a number of instances ‑ ‑ ‑

MR KILLALEA:  At the foot of 54, I think, your Honour, the last part of what is extracted there:

“there is nothing in his evidence to suggest that he ever attempted to contact any of the organised political opposition groups inside or outside Iran.”

Perhaps that is not a criticism of his credibility, just a limitation on what he was claiming.  Then, again, his Honour Justice Nicholson, at folio 55.  He also said, at the top of 55:

“Given the nature of the Applicant’s activities as he originally described them, I consider it implausible that he would have been – ”

he is picking up the Tribunal’s finding there about implausibility in relation to the activity in 1994, but nowhere in that has there been a consideration that the activity in 1987 has been discounted after the event in 1994.

CALLINAN J:   Look, you keep on focusing on that.  There are all sorts of adverse findings against him on credibility.  If you look at page 17, “Findings and Reasons for Decision”, right at the beginning:

As I indicated to the Applicant in the course of the hearing before me, I consider that he has changed his evidence in a number of significant respects – 

and then particulars of them are given.  Then look at the top of page 20:

I do not accept that, as the Applicant said at the hearing before me, he is wanted by the Iranian authorities because they have a tape of him insulting the leadership and Islam.

Page 21, the second line:

I do not accept that – 

I could go on.  There are numerous instances of adverse findings of credibility.  That is the reason why he was rejected as to his claim for six months imprisonment because of his political activities, not simply because he may have been wrong on that, but because he was not credible on so many things.

MR KILLALEA:  With respect, if I could just perhaps take your Honour to the last one you took me to, at the top of 21.  That is not so much a finding adverse to his credibility.  I think it can properly be read in light of “I do not think the Iranian authorities would do that to him if he went back”:

I do not accept that, if the Applicant returns to Iran now or in the reasonably foreseeable future, there is real chance that he will be persecuted – 

It is not an adverse finding in respect of – necessarily adverse ‑ ‑ ‑

CALLINAN J:   That was his claim, that he was going to be persecuted if he went back.

MR KILLALEA:  That is right.  That is his fear.  It does not mean that he lacks credibility for having expressed his fear.  He might not have satisfied the Tribunal, but that is a different point.  I mean, at the top of page 20:

I do not accept that, as the Applicant said at the hearing before me, he is wanted by the Iranian authorities because they have a tape of him insulting the leadership and Islam.

The Member does not accept that he is at risk for that reason.  He is not necessarily impugning his credibility as to the applicant’s basis for his fear.  I think, if one reads the ‑ ‑ ‑

GUMMOW J:   Your client had legal representation before Justice French?

MR KILLALEA:  Yes, that is as I recall it.

GUMMOW J:   Now, this argument about illogicality did not appear there, did it?

MR KILLALEA:  I have not seen it other than in his Honour Justice Finkelstein’s judgment.  It seems he went unrepresented on appeal, and I think it largely mirrored the grounds that he took to the court below.

GUMMOW J:   What was the basis of – Justice Finkelstein ended up against your client?

MR KILLALEA:  Yes.

GUMMOW J:   What was the basis of Justice Carr’s dissent?  No adverse credit finding?

MR KILLALEA:  I think it was ‑ ‑ ‑

GUMMOW J:   Having regard to what has been pointed out, both today and by Justice Nicholson, there does not seem a special leave point in that, at the moment.

MR KILLALEA:  I will accept that.  I accept there are difficulties with the finding as to credibility, but that is where, properly, I think, his Honour Justice Finkelstein has come in and looked at the ‑ ‑ ‑

GUMMOW J:   This notion of illogicality just seems to have been put up to be knocked down.

MR KILLALEA:  It was put up and knocked down, yes, it was.

GUMMOW J:   You say it should have been put up and kept up?

MR KILLALEA:  Yes, that is right.

GUMMOW J:   It was not put up before Justice French?

MR KILLALEA:  No.  There is so much at stake in these matters, of course, the nature of the application, and, I think, properly, the court with an unrepresented litigant took it upon itself, to some extent, to consider his case in the ‑ ‑ ‑

GUMMOW J:   Your client’s case has had a most detailed consideration in the Federal Court system. 

MR KILLALEA:  Yes, and, at the end, he has failed for a reason of illogicality not being an error of law.  That is the point I press, your Honour.

GUMMOW J:   That is what you say?

MR KILLALEA:  Yes.  Those are my submissions, your Honours.

GUMMOW J:   Thank you.  We will take a short adjournment.

AT 2.58 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.05 PM:

GUMMOW J:   We do not need to call on you, Mr Gageler.

The applicant seeks special leave to appeal against a decision of the Full Court of the Federal Court rejecting an appeal at first instance in that court which affirmed a decision of the Refugee Review Tribunal under the relevant review structure.  The decision of the Refugee Review Tribunal had been not to grant the applicant a protection visa.

It is contended now that the Refugee Review Tribunal made reviewable error by making an illogical decision.  The contention is misconceived as an examination of the Tribunal’s decision shows that it depended upon numerous adverse findings of credit against the applicant.  The decision of the Full Court of the Federal Court as expressed in the reasons of Justice R.D. Nicholson is correct.  Accordingly, special leave is refused with costs.

AT 3.07 PM THE MATTER WAS CONCLUDED