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High Court of Australia Transcripts |
Office of the Registry
Sydney No S218 of 1999
In the matter of -
An application for Writs of Certiorari, Prohibition and Mandamus and an Injunction against PHILIP RUDDOCK in his capacity as THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
First Respondent
DINOO KELLAGHAN in her capacity as a Member of the MIGRATION REVIEW TRIBUNAL
Second Respondent
PETER NYGH in his capacity as the Principal Member of the REFUGEE REVIEW TRIBUNAL
Ex parte -
SARAJIT CHANDA
Prosecutor/Applicant
GLEESON CJ
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON TUESDAY, 22 FEBRUARY 2000, AT 10.12 AM
Copyright in the High Court of Australia
MR S.B. LLOYD: If the Court pleases, I appear for the Minister, with the leave of the Court. (instructed by the Australian Government Solicitor)
HIS HONOUR: I understand it is proposed that there be a consent order made in this matter.
MR ROBINSON: That is correct, your Honour.
HIS HONOUR: Have you the form of the order that you propose?
MR ROBINSON: I do. I have a copy that has been executed by the solicitors for both parties.
HIS HONOUR: Which is the provision of the Migration Act that limits the capacity to remit matters to the Federal Court?
MR ROBINSON: The matters which the Federal Court can deal with is 476.
HIS HONOUR: I see that.
MR ROBINSON: The limitation is 485(3), your Honour.
HIS HONOUR: Now, can you just explain to me what is the rationale behind the selection of the parts that are being remitted to the Federal Court?
MR ROBINSON: Yes, your Honour, I am happy to do that. The paragraphs that are being remitted relate to actual bias. That is paragraph 2, with the omission of the
words "apparently biased". Paragraph 3, the "no evidence" ground, and paragraph 6 of the draft order nisi, which is error of law. Each - - -
HIS HONOUR: Just excuse me for a moment. I have not checked for myself but is it common ground between the parties that the findings referred to in paragraph 3 of the draft order nisi were made by the second respondent?
MR LLOYD: No, your Honour.
HIS HONOUR: I will come back to that question in a moment if you want to take further time.
MR LLOYD: Yes, your Honour.
HIS HONOUR: Mr Robinson?
MR ROBINSON: It is our contention, your Honour, that they are findings that appear on the face of the reasons of the decision of the Tribunal and they are findings that are made in the absence of evidence, and that is the foundation of the "no evidence" ground. In order to make good that ground, your Honour, we would need to file the whole of the evidence that was before the Tribunal and we are in the process of getting that completed at this stage.
HIS HONOUR: Thank you.
MR LLOYD: Perhaps, your Honour, I could say the findings were not made in these exact terms but perhaps it would be fair to say that findings substantially akin to these findings are made by the Tribunal.
HIS HONOUR: Thank you.
MR ROBINSON: Would it assist your Honour if I took your Honour to the actual provisions relating to actual bias, no evidence and error of law?
HIS HONOUR: In section 476?
MR ROBINSON: Yes, your Honour.
HIS HONOUR: I have just been looking at those myself, thank you.
MR ROBINSON: In relation to completion of the rationale for the application to remit to the Federal Court part of the matter, the matters that will remain in the High Court will be paragraphs 1, 2 in so far as it relates to apparent bias; 4, 5 and 7. Now they relate to questions of procedural fairness, apparent or ostensible bias, relevant and irrelevant considerations and a question of procedural ultra vires, that is the section 430 "statement of reasons" questions.
HIS HONOUR: Could I take you back to paragraph 6 which is one of the paragraphs you propose be remitted. I am not just sure I understand paragraph 6 at the moment. The Federal Court would have jurisdiction to deal with that under section 476(1)(e) but just at the moment the error of law being referred to, or the claimed error of law, is not immediately apparent to me.
MR ROBINSON: Your Honour, I agree it could have been better expressed in terms. The gist of what the prosecutor is attempting to say there, and it can be refined, your Honour, upon remittal, and it may be appropriate to refine it, but the gist of it is this, your Honour. The decision maker in the Tribunal below took a position that one must have either a political-based claim for refugee or a religious-based claim for refugee and one is disentitled somehow from initially making a claim with one emphasis and later changing the emphasis to another. It is that approach which we say is erroneous in law. As your Honour will see from the Tribunal decision itself, the very foundation of her finding that the prosecutor has no credibility whatsoever and cannot be believed in almost anything he says, which as your Honour may well appreciate is a common finding from this Tribunal, but in this particular case it is fair to say, in my submission, a major premise for the decision maker doing so here is that the applicant below changed his emphasis from a political-based application to that of a religious-based application.
HIS HONOUR: Mr Robinson, I am not minded to remit to the Federal Court an issue that I find unintelligible and I have to tell you that at the moment I find ground 6 in the draft order nisi unintelligible. Now, it may be that by altering it or, as you say, refining it in some respect, it can be made to raise an allegation of an error of law. Perhaps you could have a go at it right now.
MR ROBINSON: Yes, your Honour, I will attempt to.
HIS HONOUR: I, really, as I read paragraph 6, do not understand it but, more to the point, I do not see it raising an issue of law. It is some sort of general criticism - - -
MR ROBINSON: Well, your Honour, the question of law is the construction of the relevant convention, the Refugees Convention. The Tribunal here has apparently taken the view that one must raise one claim, one foundation for a claim, that is political, and - - -
HIS HONOUR: Well, is the error of law that the second respondent erred in her interpretation of the convention in that she considered X, whereas on its true construction it means Y?
MR ROBINSON: Yes, your Honour.
HIS HONOUR: Then it ought to be possible to formulate the error of law.
MR ROBINSON: That is so, your Honour, if the matter could be stood down for a short time.
HIS HONOUR: Now, what I am going to do is make a minor verbal alteration to one aspect of the form of the order that will be self-evident, I think. It will really be necessary for there to be a consent amendment to paragraph 6 of the draft order nisi to put it in the form that actually alleges with clarity the error of law relied upon by the prosecutor.
I will hand you back this document you handed up to me and you will see a couple of minor amendments I have made to the introductory part of that order which I think is self-explanatory.
MR ROBINSON: I am content with that, your Honour.
HIS HONOUR: You hang on to that for a moment. If you can then agree to an amendment of paragraph 6 of the draft order nisi which clearly states the error of law or errors of law relied upon, and you bring in a form of amended order nisi, then I will, assuming it is consented to, give leave to amend the order nisi in that respect and I will make the orders in the form of that document as amended by me.
Now, how long do you think it will take you to reformulate paragraph 6?
MR ROBINSON: It can be done today, your Honour, and I expect that the document can be filed tomorrow.
HIS HONOUR: All right. Well then, assuming I am content that the amendment to paragraph 6 does clearly express a proposed error of law, I will simply make the necessary orders - the best thing, I think, is probably for us to list this matter for mention again tomorrow morning unless you think it can be done by 2.15 this afternoon.
MR ROBINSON: Yes, 2.15 is suitable, your Honour.
HIS HONOUR: All right. Well then, we will adjourn this matter until 2.15 this afternoon.
MR LLOYD: Your Honour,....I simply say that I also appear for the second respondent who submits to the orders of the Court.
HIS HONOUR: What is the position in respect of the third respondent?
MR LLOYD: It is the same.
HIS HONOUR: So you appear for all respondents?
MR LLOYD: For all the respondents with the second and third respondents submitting.
HIS HONOUR: Very well then, that will be noted. We will adjourn the matter until 2.15.
AT 10.30 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY
UPON RESUMING AT 2.11 PM:
MR ROBINSON: Your Honour, we have amended the draft order nisi in a fashion which, we trust, will be agreeable for your Honour in respect of paragraph 6, and a newly numbered paragraph 7. There is one other amendment which I will come to in relation to another paragraph. The copy I am handing up is opened at the new 6 and the new 6A. My friend consents to it in that form.
HIS HONOUR: Am I concerned with paragraph 7?
MR ROBINSON: No, your Honour.
HIS HONOUR: You agree to this, do you, Mr Lloyd?
MR LLOYD: Yes, your Honour.
HIS HONOUR: I will give leave to amend the draft order nisi in accordance with the document initialled by me dated today's date and it will be placed with the papers.
MR ROBINSON: ......the other paragraph that there has been an addition to arising from discussions which occurred over lunch between my learned friend and I is in paragraph 3 on page 3. The words in the second line, "of fact and those facts did not exist" have been inserted into an otherwise unchanged paragraph. That was done as a result of a question my learned friend raised over lunch.
HIS HONOUR: Which one is that, again, Mr Robinson?
MR ROBINSON: Paragraph 3, second line, after the word "findings", all of those words have now been inserted based upon discussions between the parties so as to specifically enliven the jurisdiction of the Federal Court were the matter to be remitted. But I should mention to your Honour that also over lunch my learned friend has informed me that the Commonwealth has changed its position since before lunch on its consent to referring that paragraph, the "no evidence" ground or the "no evidence" part of the matter, to the Federal Court for its consideration. As I understand the argument, as it was put to me over lunch, the basis of that new objection is that the "no evidence" ground as pleaded in the High Court does not go to jurisdictional error and therefore cannot found the writ of certiorari, as I understand it, and that is the basis of it.
No direct authority has been provided to me on the point, and I must say to your Honour that if it is pressed by my learned friend, I am not in a position to deal with it today and it might be appropriate to deal with it on another day. But I do say to your Honour that the prosecutor's position is that it would be preferable if this matter were to be determined by a Federal Court - that is paragraph 3 - that is used to dealing with "no evidence" grounds and "no evidence" matters and it is convenient for the "no evidence" ground to be dealt with in that fashion.
HIS HONOUR: We will see what Mr Lloyd has to say about that but before we go any further, this document that you have just handed up is the amended draft order nisi, is it not? It is not so described. Shall I write the word "amended" in front of it?
MR ROBINSON: I would be grateful, your Honour.
HIS HONOUR: And I will write, "Amended pursuant to leave granted 22 February 2000".
MR ROBINSON: If your Honour pleases. I also hand up, your Honour, a copy of the consent orders that your Honour handed to me earlier with the changes that your Honour made in hand incorporated into the text.
HIS HONOUR: That is that one, is it?
MR ROBINSON: That is that one, your Honour.
HIS HONOUR: Thank you.
MR ROBINSON: Subject to the paragraph 3 remittal, the parties are agreed but - - -
HIS HONOUR: What is your position in relation to paragraph 3, Mr Lloyd?
MR LLOYD: I am sorry to raise it at this late stage but it occurred to me after proceedings this morning that there is potentially a jurisdictional question about this issue and it operates in this way: prior to 1975 there was a common law ground of no evidence. In the Administrative Decisions (Judicial Review) Act a statutory ground was introduced and that ground has been copied into Part 8 of the Migration Act. Now, the statutory ground is, or at least may be, in a different form to the common law ground.
HIS HONOUR: The statutory ground is:
that there was no evidence or other material to justify the making of the decision.
MR LLOYD: And that is qualified by paragraph (4) of the same section, your Honour. It can only be met in the circumstances of paragraph (4).
In the decision of his Honour Chief Justice Mason in Australian Broadcasting Tribunal v Bond his Honour reflected upon, when he was discussing or setting out the law in relation to review of findings of fact, the common law position of no evidence and its relationship with the statutory "no evidence" ground. His Honour came to the view that the common law ground was included in section 5(1)(f) of the AD(JR) Act which simply says "error of law". In the Migration Act the equivalent provision is section 476(1)(e) but, as your Honour will see, that is a more circumscribed error of law than that which appears in the Judicial Review Act. As a result, the common law ground of no evidence, which is incorporated in the AD(JR) Act, is not incorporated into the Migration Act.
That being the case, in my submission, there is no point in remitting the common law ground of no evidence to the Federal Court because Part 8 or section 495(3) would preclude the Federal Court from considering that ground. Now, there is, of course, the statutory "no evidence" ground.
HIS HONOUR: For some reason, the drafter of the draft order nisi has not followed the language of the statute. But if you followed the language of the statute in expressing the ground for review, presumably what you would say in the present case is, "3. There was no evidence or other material to justify the making of the decision in that the person who made the decision based the decision on the existence of the following particular facts and those facts did not exist:", and then list (a) to (e). Now, if the drafter had done it that way, he would have followed the words of the statute. Would there be any problem?
MR LLOYD: The problem then would be that the High Court does not have jurisdiction in relation to section 475(1)(g).
HIS HONOUR: Why is that a problem?
MR LLOYD: So, the High Court does not have the jurisdiction to remit it. We accept the Federal Court has that jurisdiction but the High Court, I say, does not have jurisdiction in relation to that statutory ground and to the extent to which the statutory ground is different to the common law ground it cannot, as it were, be amalgamated, in my submission. The common law ground, unfortunately, is rather unclear because since 1975 no one really has relied upon it, but there is some discussion in the decision of Bond, if I could take - - -
HIS HONOUR: Is your submission that there is a discordancy between the ground on which the High Court might have jurisdiction under section 75(v) of the Constitution to deal with a "no evidence" point and the statutory "no evidence" point, as I have just formulated it?
MR LLOYD: Yes, your Honour.
HIS HONOUR: All right. Well now, your opponent says that may or may not be right but he is not prepared to argue that because you only mentioned it over lunchtime.
MR LLOYD: I understand that.
HIS HONOUR: There is not much purpose to be served by me sitting here while your opponent listens to your argument for the first time. Your proposition, if it is right, means that there can be no effective consent by your client to a remitter of this particular part of the matter.
MR LLOYD: Exactly. So, in my submission, there are two reasonable options. One option is that the two other grounds be remitted in part, and to the extent to which the prosecutor can do so, he can seek to amend when in the Federal Court, in a court with jurisdiction to deal with the statutory ground of no evidence, and add that ground to the proceeding as remitted. Alternatively, if, in the circumstances, my friend wants to argue this particular point I have just raised, it might be a more efficient use of the Court's time simply not to remit the matter at all and to set another day just to hear the application for the draft order nisi which will, of course, involve consideration of the common law principle of no evidence.
HIS HONOUR: What do you say about that, Mr Robinson?
MR ROBINSON: Your Honour, two things: firstly, as I have already said, it would be preferable to remove the ground to a court that is comfortable dealing with the "no evidence" point and has experience in dealing with it and we would press for it to go to the Federal Court. Secondly, one way of dealing with it is this Court at this stage of the proceedings does not have to finally determine, as my learned friend seems to require of this Court, whether or not it has jurisdiction in relation to the "no evidence" ground, however pleaded. This Court, in my submission, can merely take notice that it might have jurisdiction and refer the matter for the moment to the Federal Court. There is no question that the Federal Court has jurisdiction but if it becomes an issue later on in this Court, we can deal with it at that time.
Additionally, your Honour, the "no evidence" point, whilst it might go to the certiorari prerogative writ that has been claimed, an injunction has also been claimed and my learned friend is not, as I understand it, suggesting that an error of the "no evidence" kind cannot be relevant in the seeking of an injunction. So, at the end of the day, your Honour, on the face of it, I submit that your Honour is in a position to feel comfortable enough to remit the paragraph numbered 3 to the Federal Court as it is presently pleaded so as to invoke the provisions of the Migration Act.
HIS HONOUR: The problem is that as it is presently pleaded, it departs from the language of the statute. It would need to be amended in the way that I just mentioned.
MR ROBINSON: Your Honour, in my submission, it is sufficient, and was accepted up to a point by the Commonwealth ,to sufficiently invoke the jurisdiction of the Federal Court as to not trouble the Commonwealth.
HIS HONOUR: Is there any reason not to follow the words of the statute?
MR ROBINSON: Your Honour, I am more than content to insert the words of the statute.
HIS HONOUR: The moment you start departing from the words of the statute people start thinking there must have been some reason for departing.
MR ROBINSON: I hear your Honour.
HIS HONOUR: Are you content that the amended order nisi be further amended in the manner that I mentioned earlier, that is by actually expressing this ground in the language of paragraph (g) of subsection (1) of section 476?
MR ROBINSON: Paragraph (b).
HIS HONOUR: And paragraph (b) of subsection (4)
MR ROBINSON: Yes, your Honour.
HIS HONOUR: Do you oppose that?
MR LLOYD: Your Honour, in my submission it does not deal with the problem that this Court - - -
HIS HONOUR: I am not suggesting it deals with the problem; it deals with a different problem which is the discrepancy between the form of the pleading and the language of the statute.
MR LLOYD: To that extent I do not have any opposition to it.
HIS HONOUR: All right. We will deal with the matter of amendment first.
I will grant leave further to amend this document - I am going to hand the document back to you, Mr Robinson, so that in due course you can file with the Registry the final amended form pursuant to the leave that has been given. Who was the person who made the decision here, the first respondent?
MR ROBINSON: The second respondent.
HIS HONOUR: Right. Now that has been further amended.
MR ROBINSON: Your Honour, I have noticed a typographical error on page 4 at paragraph numbered 7 where 467 ought to read 476.
HIS HONOUR: Thank you. You can make that correction also when you prepare the final form of amended draft order nisi.
MR ROBINSON: Thank you.
HIS HONOUR: Now, to come back to your point, Mr Lloyd, this Court has before it an application for an order nisi on ground 3.
MR LLOYD: Yes, your Honour.
HIS HONOUR: You say that if the facts alleged in ground 3 are made out, they would not warrant this Court making an order absolute?
MR LLOYD: Your Honour says "if the facts" - - -
HIS HONOUR: If that ground is made out, would it enliven the Court's jurisdiction to grant any of the relief sought?
MR LLOYD: I would submit, your Honour, that there is a common law ground of - a no evidence ground. The objection is that none of those facts which are said to have had no evidence are jurisdictional facts. So the Minister's argument would be that even if there was no evidence, they are not jurisdictional facts so there would not be relief granted on that basis.
HIS HONOUR: That argument may be right or it may be wrong, but why does it have to be decided now?
MR LLOYD: The statutory ground goes further than just jurisdictional facts. The paragraph 476(4)(b) includes any fact upon which the decision is based, and that paragraph (4)(b) is a ground which the Federal Court has but the High Court does not. The Minister's point is simply that the High Court cannot remit that ground. It may well be that if part of the proceeding is remitted, my friend can amend and then the Federal Court can press the exact same point. It is just simply that it is not a ground of review in this Court as amended to the statutory ground because this Court does not have jurisdiction under Part 8 or under the AD(JR) Act in relation to this decision.
HIS HONOUR: What would be the source of the power of the Federal Court once part of the matter is remitted to add that?
MR LLOYD: It would be under the Federal Court Rules of which I do not have a copy, but there is a case called Cam Mui Chi v The Minister 84 FCR - I cannot recall the page number. It is a case in which a matter was remitted to the Federal Court in this manner and the Federal Court held that it could amend and add an additional ground, although I note in that instance it was a ground that could have been in the High Court.
HIS HONOUR: I do not think it is a very productive use of our time, to be thrashing around considering arguments that apparently were only thought up over the luncheon time.
I will hand back to you, Mr Robinson, the document which, as I understand it, is the final form of the amended draft order nisi and want you to have it typed up, re-engrossed and filed in the Registry.
We will stand the further hearing of this matter over until 2.15 tomorrow, at which time I will expect to hear full argument from both parties on the question that has been raised by Mr Lloyd as to the course that should be followed in relation to ground 3 in that document.
MR ROBINSON: We are content with that, your Honour.
HIS HONOUR: Very well. We will adjourn until 2.15 tomorrow.
AT 2.34 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 23 FEBRUARY 2000
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