Zaltni v MIMA

[2001] HCATrans 40

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S134 of 2000

B e t w e e n -

LARBI BEN MOHAMED DIT HAM ZALTNI

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 FEBRUARY 2001, AT 12.50 PM

Copyright in the High Court of Australia

MR L.J. KARP:   May it please the Court, I appear for the applicant.  (instructed by McDonnells Solicitors)

MR M.J. LEEMING:   May it please the Court, I appear for the respondent.  (instructed by the Australian Government Solicitor)

McHUGH J:   Yes, Mr Karp.

MR KARP:   Thank you, your Honour. Your Honour, this matter raises issues regarding section 476(1)(f) of The Migration Act being that the decision was induced and affected by actual bias.  It raises these issues especially in the context of the inferences which can be drawn from the conduct of a decision-maker.

The Full Court in this matter found that the decision under review was a borderline case, but that on the balance it did not think that the decision was induced by actual bias.  The test that the Court used is at page 69 of the application book.

McHUGH J:   Well, that was the test your client agreed to both before Justice Gyles and also before the Full Court, was it not?

MR KARP:   I concede that, your Honour, and also concede that we have to wear the consequences of that.

McHUGH J:   Yes.

MR KARP:   But I would submit that the issue which has been raised in the special leave of application is one of importance and does take issue with the test used by the Full Court.

McHUGH J:   The issue as to the meaning of that term is before the Court, as you are probably aware in two matters, White and Jia, which were heard in Western Australia.  I did not sit on those cases, but they were argued.

MR KARP:   I do understand that, your Honour, but as I understand it, the main issue in those cases was whether a Court of Appeal is justified in departing from inferences drawn by a judge at first instance.  I would concede that the issues which I have raised today, and which I have raised in this application, were canvassed in oral argument in that case.  I cannot get away from that.

McHUGH J:   Yes.  Well, it seems to me that two problems that you face are these.  First of all, you ask the Court to determine the meaning of the term “actual bias” in the legislation, and you now propose a test differently from that which you accepted in the Federal Court in both levels.  That has the consequence that this Court now would not have the benefits of judgments of the Federal Court on the issue.  The second question that arises is whether or not, in any event, this is a suitable vehicle given would the test have made any difference, given the approach of Justice Gyles and the approach of the Full Court?  Would you have had any different result applying the test?

MR KARP:   In my submission, there would be, your Honour.  The test used by the Full Court was whether the decision-maker was so committed to reaching a certain decision as to be incapable of being persuaded not to do so.

McHUGH J:   Yes.

MR KARP:   Now, that raises the barrier or the hurdle ‑ ‑ ‑

KIRBY J:   That would not be the entire content of actual bias.  There would be cases where a person was actually biased because the person hated the applicant or people like the applicant.

MR KARP:   That is true.

KIRBY J:   I mean, you can take it at different stages of the decision‑making process.

MR KARP:   Yes.  There could be cases also, your Honour, where a decision-maker could say to himself or herself, “I do not think this matter should succeed unless there are absolutely compelling reasons why it should, I will not get it up.”

KIRBY J:   This case falls so far short of that that it just seems almost unarguable.  I mean you are forced into the “actual bias” category by reason of the provision of the Act.  Otherwise, presumably, you would have been dealing with this matter on another basis, perhaps, of imputed bias.

MR KARP:   That is certainly so, your Honour.

KIRBY J:   Well, as Justice McHugh has said, the issue of the content of actual bias is before the Court, so in so far as that is a special leave point, we do not need to give special leave again.  Then so far as this case is concerned, it does not seem to call out for a case of actual bias, if one just reads the facts of the case.

MR KARP:   Well, your Honour, I submit otherwise.  The test of bias used in the case Re JRL, Ex parte CJL, which is on my list, the Judges of the High Court in that case used a different test, and that is the judge in the case might not bring any - or in the case of actual bias, does not bring an impartial and prejudiced mind to resolution of the question involved in it.

Now, that is an entirely different standard to that imposed by the Full Court in this particular case. 

KIRBY J:   Are you referring to passage at 69 that you took us to?

MR KARP:   Yes, I am, your Honour.

KIRBY J:   Well, it is expressed in a different way, but these things are not set in stone.  What their Honours say is:

the decision-maker is so committed to reaching a certain decision as to be incapable of being persuaded not to do so.

What is wrong with that?  That is just taking it back a step from ‑ ‑ ‑

McHUGH J:   Can I add to that.  That is, no doubt, formulated that way by reason of the way the parties conducted the case before the Tribunal.  The question was whether the facts fell within a test which was common ground between the parties. 

MR KARP:   Again, your Honour, I would have to concede that is so.

McHUGH J:   Yes.

MR KARP:   But if I ‑ ‑ ‑

KIRBY J:   Given that we have it before us on the general principle, and given that you conducted the litigation on a particular case, and given that your clients were represented and therefore, it is not a case of unfortunate people who did not have assistance, why would this Court grant special leave?  I mean we are about to deliver in due course in the cases of Jia and White.  Presumably that will cover the matters of general principle.  Why, on earth, would we grant, given the application you have seen this morning before the Court which have been refused, special leave where you have conducted the litigation on a particular basis, which you now want to change - the final Court of the nation?

MR KARP:   Your Honour, all I can, I hope usefully say, in response to that is that the Full Court did find it to be a borderline case, and that finding can be seen at page 71, line 25, of the application book.

KIRBY J:   As Justice McHugh said earlier, if one felt that a differently worded test would have led to a different result on the facts, then cases of refugees are so serious that one might be impelled to grant special leave just to look at it again, but, I mean, your client was mistaken in naming the head of the Al-Nadha group in Tunisia, and the facts just seem to stand against the suggestion that he was a major player in that organisation.

MR KARP:   Your Honour, he never claimed to be a major player in the organisation.

KIRBY J:   Well, that he was, at least, such a player in it that he has a reasonable apprehension that if returned to his country of nationality he will suffer persecution. 

MR KARP:   Your Honour, during the periods that he was involved in this organisation or the period that the Tribunal quizzed him on in relation to the organisation itself, he was out of the country for the vast majority of the time.  He gave evidence, which is detailed in the Tribunal’s decision, that he obtained most of his knowledge from the mosque in the Netherlands where he attended and from leaflets and talking to people.

McHUGH J:   I read that.  I took it the mosque was not some institution or social institution but a religious place?

MR KARP:   That is correct, your Honour.  It is a religious institution.  Al‑Nadha was a religiously based group.

McHUGH J:   I understand that, yes.

MR KARP:   Yes.  Now, in those circumstances the submission before the Full Court and Justice Gyles at first instance was that the Tribunal was deliberately - and I put that highly - placing the barrier too high for the applicant in the circumstances.

KIRBY J:   Where is the best instance in the Tribunal’s reasons which you say leap out from the page and show actual bias?

MR KARP:   The dealing with the letter ‑ ‑ ‑

KIRBY J:   Just your best point.

MR KARP:   At application book 21 and 22, your Honour.  The dealings with the evidence of a Mr Memmiche who wrote a letter in support of the applicant and the Tribunal, having been given details of how to contact Mr Memmiche, did not do so - simply said at the bottom of page 21:

I find the letter sent to Mr Zaltni by Mr Memmiche to be a self serving document prepared at Mr Zaltni’s request -

and so on.  Now, the comment made by the Full Court can be found at pages 71 and 72 commencing at line 30 where the Full Court commented specifically on the Tribunal’s treatment of Mr Memmiche’s letter.

McHUGH J:   The arguments that you rely on are arguments that, really, the decision is wrong as a matter of fact or not sufficient weight was placed on this.  It shows the truth of Justice Wilcox’s statement Sun Zhan Qui that the result of overruling Eshetu will be to substitute for inquiry into the character of the decision and inquiry into the character of the decision‑maker.

MR KARP:   It is not only that, your Honour.  The Court found at about line 17 or 18 at page 72, to:

infer that both the applicant and Mr Memmiche were guilty of a fraudulent act is a startling and, we think, unacceptable leap.

Now, even on the test that applicant agreed to before the Full Court and before Justice Gyles, there is a question as to whether that is a material fact which has been prejudged by the Tribunal in coming to its decision.

McHUGH J:   Yes, but all the authorities point to the fact that you should not change such a decision as to bias lightly.  Why should you make the leap and conclude that it was a result of prejudgment.  The other matters that Justice Gyles referred to which indicated that the Tribunal had an open mind might have been wrong.  You put powerful factual arguments to suggest it was wrong in the Full Court, but it is another matter altogether to say it was actuated by bias.

KIRBY J:   That is a very serious allegation, at least in my understanding, to say that an officer of the Commonwealth, a Tribunal member who is independent, who should be making decision independently, is actually biased.  Now, am I wrong in that understanding?

MR KARP:   No, your Honour, certainly not.

KIRBY J:   Well, if it is a serious allegation, it has to be very clearly alleged and it has to be very plainly proved, and the material you have pointed us to, whilst, perhaps, available to suggest that I would have made a different conclusion, do not even begin to storm the ramparts of actual bias.

MR KARP:   Well, could I take the Court to one more aspect of the decision and that is at page 27 commencing at about line 22 or 23, the paragraph about the report of the psychologist.  Now, the psychologist found that this family, and especially the parents, were suffering from serious stressful - had post-traumatic stress disorder.  The Tribunal finds at about line 26 or 27 they were suffering from trauma, but:

for the reasons set out above -

that is the credibility points taken previously -

I am not satisfied that Mr Zaltni’s fears relate to his alleged involvement in Al-Nadha and there is nothing in this report which causes me to alter this finding.

Now, this appears to reason from the fact that I do not believe the applicant, who I accept is severely stressed and severely traumatised, therefore, I do not believe the expert opinion of the psychologist as to the causal relationship between the stress that they found and the facts which they allege.

McHUGH J:   Yes, but all psychologists’ opinions are ultimately based on certain facts, and in cases such as this they are convinced of the facts related by the applicant.  The point you put factually is forceful, there is not doubt about that, but it just simply means it is a wrong, maybe even a very wrong finding of fact, but it still falls a long way short of bias.  I mean judges and tribunals can make very erroneous findings.  Justice Kirby and I once sat on a case called Soulemezis where the judge found a worker was totally incapacitated one day and fully fit for work the next day.

MR KARP:   That may be so, your Honour.  It may be  ‑ ‑ ‑

KIRBY J:   I have forgotten that case, but, obviously, Justice McHugh bears it as a scar.

McHUGH J:   I do not bear it as a scar.  We dismissed the appeal.

MR KARP:   It may have been a surprising finding in the particular case, but it was not just one or two instances to which the applicant relied before the Full Court and before Justice Gyles.  At pages 69 and 70 of the application book is reproduced the then appellant’s submission before the Full Court as to why bias should be inferred in the circumstances of the case.  Now, even if one or two instances do not add up to an inference of bias, there are there listed ten.

Now, there is a point at which an inference stops being that of mistake and starts becoming more sinister.  My submission is that those matters which the Full Court did not take issue with - and that can be found at page 71 at about line 27:

do not think that the matters relied on by the appellant go far enough to establish that the Member was not open to persuasion.

Well, in that case how could the applicant satisfy the test the member was not open to persuasion?

Your Honours, unless I can further assist, that is as much as I can put.

McHUGH J:   Thank you very much for assistance, Mr Karp.  We do not need to hear you, Mr Leeming.

McHUGH J:   Thank you very much for your assistance, Mr Karp.  We do not need to hear you, Mr Leeming.

In this matter, the applicant seeks special leave to have the Court determine the meaning of the term “actual bias” in section 476 of the Migration Act 1958. The applicant seeks to give the term a meaning different from that which he accepted was its meaning before Justice Gyles and the Full Court of the Federal Court.

The meaning of the term “actual bias” in section 476 is currently before this Court in two appeals. That fact tells strongly against granting special leave on this particular point. More importantly, given the facts of the case, we do not think that an appeal would enjoy sufficient prospect of success even if the test now relied on by the applicant was adopted.

For those reasons, the application for special leave to appeal must be dismissed.

MR LEEMING:   May it please the Court, I seek an order for costs.

McHUGH J:   Yes.  There is nothing you can say, Mr Karp?

MR KARP:   No, nothing, your Honour.

McHUGH J:   No.  The application is dismissed with costs.

The Court will now adjourn.

AT 1.10 PM THE MATTER WAS CONCLUDED