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High Court of Australia Transcripts |
Melbourne No M10 of 2000
B e t w e e n -
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Appellant
and
FATHIA MOHAMMED YUSUF
Respondent
Office of the Registry
Melbourne No M126 of 2000
In the matter of -
An application for a Writ of Prohibition or for an Injunction or for orders in the nature of Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
THE REFUGEE REVIEW TRIBUNAL
Second Respondent
Ex parte -
FATHIA MOHAMMED YUSUF
Prosecutor/Applicant
Office of the Registry
Melbourne No M13 of 2000
B e t w e e n -
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Appellant
and
OGANES ISRAELIAN
Respondent
Office of the Registry
Melbourne No M127 of 2000
In the matter of -
An application for a Writ of Mandamus or Prohibition or for an Injunction or for orders in the nature of Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
THE REFUGEE REVIEW TRIBUNAL
Second Respondent
Ex parte -
OGANES ISRAELIAN
Prosecutor/Applicant
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 15 NOVEMBER 2000, AT 10.19 AM
Copyright in the High Court of Australia
MR J. BASTEN, QC: If the Court pleases, I appear with MR J.A. GIBSON for Ms Yusuf in both the matters relating to her claim, M10 and M126. (instructed by Victoria Legal Aid)
MR B. KEON-COHEN, QC: If the Court pleases, I appear with my learned friend, MR J.A. GIBSON, for Mr Israelian, being the appellant and the proposed applicant/prosecutor in both matters. (instructed by Armstrong Ross)
GLEESON CJ: Is it convenient to all counsel if we hear all these matters together? That is, hearing argument from Mr Tracey first in relation to both his appeals and then
arguments from Mr Basten and Mr Keon-Cohen in relation to their responses to the appeals and also their applications for prerogative relief?
MR KEON-COHEN: Your Honour, from our side of the Bar table, it is. We are comfortable with that course.
GLEESON CJ: Very well, we will proceed on that basis. Yes, Mr Tracey.
MR TRACEY: If the Court pleases, these appeals raise questions as to the construction of section 430(1) of the Migration Act and its relationship, if any, with section 476(1) of the same Act. At relevant times the Act was in the form that the Court will have it in Reprint No 6 and the relevant parts are annexed to the written submissions that have been filed in support of the appeal. It may be convenient to go quickly to those provisions at the outset. Section 430(1) provides in fairly common form the requirement that the Refugee Review Tribunal, when it makes a decision on a review, is required to provide the applicant and the Secretary to the Department with a statement of its reasons for decision.
GLEESON CJ: What is the corresponding requirement in relation to the Minister or the Minister's delegate?
MR TRACEY: The Minister's delegate is required by section 66 to notify the decision but it is not as detailed a requirement as 430 and - - -
KIRBY J: What is that section again, I am sorry?
MR TRACEY: Section 66, your Honour. What is required is that if the decision is to refuse to grant a visa because a criterion was not met, that has to be identified and if there was some other statutory provision that led to the refusal, then that must be identified; but there is then a requirement in respect of a certain narrow class of visa, this is 66(2)(c):
unless subsection (3) applies to the application - give written reasons.....why the criterion was not satisfied or the provision prevented the grant of the visa -
GUMMOW J: Sorry, that is 66?
MR TRACEY: Section 66(2)(c), your Honour.
GLEESON CJ: The print I have must be out of date. No, I just do not have that page. Thank you.
MR TRACEY: If I could then return to 430. Section 430 requires the Tribunal to set out its decision, its reasons for that decision, its findings on any material question of fact and refers to evidence or other material on which the findings were based.
KIRBY J: Did that follow the Commonwealth pattern in relation to the Administrative Appeals Tribunal?
MR TRACEY: Yes, it does, and also similar wording appears in the Judicial Review Act and in section 25D of the Acts Interpretation Act applying generally to statutory requirements to provide reasons. There is then in 476(1) the grounds upon which the Federal Court may review decisions of the Refugee Review Tribunal and the first of those grounds is that the:
procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
and what the Federal Court in the cases subject to appeal has held is that a failure by the Tribunal to comply with section 430 would constitute a procedure for the purposes of 476(1)(a) thereby allowing the court to review the decision on that ground.
By their contentions, our friends have raised the possibility that the decision might also have been supported by the grounds that are set out in subparagraphs (b), (c) and (e), and I therefore draw attention to them at this stage. I will return to them in greater detail later.
GUMMOW J: Mr Tracey, can you just go back for a minute to section 66, the Minister's position under section 66(2)(c). That would attract 25D of the Interpretation Act, would it not?
MR TRACEY: Yes, your Honour, but only for the purpose of explaining why the criterion was not satisfied, or the provision prevented the grant of the visa. It would not impose a more general obligation of the kind that 430 does. I suppose in a given case it might. It would depend on the factual position.
GUMMOW J: Well, it would depend upon whether there were material questions of fact in order to deal with what he is dealing with under 66(2)(c), I suppose.
MR TRACEY: Yes, it may be that somebody makes a claim that does not bring them within the reach of the Convention on any view and, therefore, the Tribunal does not go any further and nor does the delegate.
GUMMOW J: Yes, thank you.
MR TRACEY: It may also be convenient in opening these submissions to identify immediately the errors that were found to have been committed by the Tribunal in each case. In other words, what was said as to the reason that the Tribunal had failed to comply with section 430(1).
In Yusuf the error that was identified was a failure by the Tribunal to consider an incident referred to by the applicant and to indicate whether or not it accepted or rejected that event as being capable of giving rise to a well-founded fear of persecution. The event was mentioned in the course of a narrative by the applicant and it involved an attack by some people from a clan group who attacked the family home. Now, if I could take the Court first to what the Tribunal said about the matter. It is in the appeal book at 113.
GLEESON CJ: Mr Tracey, may I interrupt you for a moment?
MR TRACEY: Yes, your Honour.
GLEESON CJ: I should have done this a little earlier to say that there is a certificate from the Deputy Registrar to say that she has been informed by the Australian Government Solicitor in both of the matters relating to Yusuf and Israelian that the second respondent does not wish to make any representations and will abide the order of the Court, save as to costs.
MR TRACEY: Thank you, your Honour. The Tribunal reasons start at 107 of the appeal book and the relevant passages start at 113 under the heading, "Background and Claims" where the tribunal records the case that was advanced by the applicant. The Court will see that in the paragraph starting at line 16 the Tribunal records that the applicant:
said that she rarely ventured outside after the commencement of the civil war, but that on two particular occasions when she did so, she was soon after attacked by members of the Hawiye clan. She claims that the attacks on her occurred because the Hawiye clan was antagonistic to her own clan. She said that the first attack occurred a long time ago and the second attack occurred about 20 months ago. She claims that she received several wounds in the attacks upon her as her assailants had swords and knives. She said that on each occasion she was assisted by neighbours who, like her attackers, were also of the Hawiye clan. She said that her husband ran away with the help of a neighbour and she does not know where he is now.
Now, that is a reference to the attack on the house following which the husband left the family and with the help of a neighbour went elsewhere and she does not know where he is. Then the Tribunal goes on to record that:
She said that she would be alone and vulnerable if she were returned to Mogadishu. She claims that her Hawiye neighbours suggested that she leave Somalia as they would be unable to protect her in the future.
Having recorded those claims, the Tribunal, at 114, embarked on a discussion of the evidence and findings and referred to a Department of Foreign Affairs and Trade cable of 3 March 1999, which dealt with the clan structure and the relationship between the clans in Mogadishu and, more widely, in Somalia. Relevantly, at 115, the Department of Foreign Affairs and Trade advised that the Abaskul - that was the clan or the sub-clan to which the applicant belonged - I am reading now at about line 8:
are not the target of the Hawiye, or any other clan, because of their clan affiliation.
Then, at line 13, there is the comment:
It is unlikely that the applicant would have experienced attacks from members of the Hawiye clan for the reason that the applicant is a member of the Abaskul clan. There is a complex relationship between different clans and to confuse the matter further intermarriage between clans is not unusual.
Then the Tribunal, at line 23, set about its own observations based on that information:
In view of the aforementioned information, and bearing in mind that on the two isolated occasions the applicant encountered problems, she was assisted by persons from the same clan as her attackers, the Tribunal concludes that the attacks against her were motivated by reasons other than race. The Tribunal notes that the applicant has been generally free from any harm in Mogadishu notwithstanding the continuation of the civil war. It notes, in particular, advice from DFAT that members of the Abaskul clan are not targeted by members of the Hawiye clan. That information from DFAT and the fact that the applicant was rescued from further harm by Hawiye neighbours when she twice came under attack, leads to a conclusion that it was not the applicant's clan membership that motivated the attacks upon her.
The Tribunal went on to conclude at page 117, line 8:
There is clear evidence, cited above, that the Abaskul clan is not targeted -
by -
the Hawiye or by other clans. The Tribunal finds that neither the applicant's individual circumstances nor her membership of the Abaskul clan expose her to a real chance of Convention-based persecution in Somalia now or in the foreseeable future.
On that basis the decision of the delegate was affirmed. That decision was the subject of an application for review under Part 8 of the Migration Act in the Federal Court and that application for review did not raise the point that subsequently availed the applicant before Justice Finn. However, it was amended in running and it was on that basis, and on that basis only, that the applicant succeeded before his Honour.
KIRBY J: Was she legally represented before the Tribunal?
MR TRACEY: I think not.
KIRBY J: What is the point of complaining that she did not raise the matter at the outset? Presumably that was raised - - -
MR TRACEY: She was represented in the Federal Court, your Honour, and there was no ground in the application to the Federal Court that raised the point on which she succeeded before the trial judge. That argument developed before his Honour. An amendment was allowed in running and it was then raised. We make no complaint about that, but what is significant for present purposes is the way that the trial judge dealt with the matter.
Could I take the Court, please, to page 133 in the appeal book. Perhaps if I could firstly just set the background by going to 124 at the start of his Honour's reasons. At the bottom of 124 on to 125, his Honour sets out part of a statement that accompanied the application made by the applicant. The relevant part is:
"About a year and a half ago members from the Hawiye clan invaded our house and attacked my husband. My husband was able to run away with the help of a neighbor [sic]. My husband had to run away and to date I don't know if he is alive or where he is.
If I could then go to 133 where his Honour deals with the section 430 statement of reasons. At line 9 he says:
While that attack in terms refers only to an actual attack on her husband, in giving oral evidence to the Tribunal the applicant appears to have included herself in the objects of that attack -
Then he sets out a passage in the transcript of the oral submissions made to the Tribunal:
"I've had a lot of problems during my stay there ... and my husband and myself were attacked and I was thrown somewhere. I was put on something on my head, and that injure - wounded me here on the forehead, and after we have had to suffer attacks and the family who are protecting us have decided that at this time they are forced to take us out of the place where we were living because we cannot - `After this accident, we cannot guarantee your safety and we've had disputes along with the other people who were attacking you.' So in that case my husband was taken by an armed man. They took him out of Mogadishu, and so far I don't know whether he's safe or not. I was pregnant at the time the family took my husband out of Mogadishu. I don't know whether he's alive now or not."
Then his Honour observed that it was:
important to appreciate the significance of this matter. It is the first of the matters relied upon in her initial statement.
That is the reference back to 114.
It relates to the break-up of her own family unit and to the departure of the person under whose protection she would ordinarily be and it occurs at a time relatively close to one of the other two occasions on which a personal attack has been made upon her. It can properly be said, in my view, to be a matter that was central to the events relied upon by the applicant as grounding her fear of persecution.
Then his Honour held:
In the circumstances, it was in my view incumbent upon the Tribunal to consider the matter and in its reasons to indicate whether or not it accepted or rejected that event in its setting as being capable of giving rise to a well-founded fear of persecution.
KIRBY J: Could I ask you just a small preliminary matter that is concerning me, and there may be some authority which says how it is to be approached. In both of these cases we have arguments concerning the limitations imposed by the Migration Act upon the Federal Court, but we have concurrent applications to this Court which, like a snake and ladder game, come straight into the Court and, in a sense, it seeks to outflank the problems that arise in the appeals. Is there any authority that instructs the Court or where the Court has said that it will deal with the appeal first and then only if that is unavailing, turn to the constitutional writs, or can one say, well, whatever the position under the appeal and the complications which face the Federal Court, we have an obligation here to deal with a substantive question which is tendered to us in the constitutional proceedings, and that they should be dealt with first and whatever may be the problems for the Federal Court, they do not arise in this Court and, therefore, we can put them to one side to a case where it is absolutely necessary to deal with them. What is the correct approach?
MR TRACEY: Well, your Honour, can I say generally that there is no decision of this Court of which we are aware that says that one approach ought to be adopted rather than another. Your Honour will recall that in Eshetu the Court dealt with both the appeal and the constitutional writ challenge and I think I am right in saying the same thing happened in Abebe.
GLEESON CJ: Are you seeking to resist the proceedings under section 75(v) on discretionary grounds?
MR TRACEY: Well, not on discretionary grounds, but what we would wish to do in the first instance is to seek to persuade the Court that orders nisi should not issue in any event because there is no arguable case. Now, if it goes beyond that, we were going to ask the Court for leave to respond to any submissions our friends might make in writing and we have in particular in mind that your Honours are to deliver judgment tomorrow morning in Aala which may or may not have a significant bearing on the arguments that might attend the prerogative relief claims. We have only had very short notice of the claims for relief under 75(iii) and (v).
KIRBY J: I am not being critical of you at all, Mr Tracey. I am just trying to get clear in my own mind what is the correct approach.
MR TRACEY: Well, that brings me back to the answer to your Honour's question because although there is no general rule that this Court has said ought to be followed, we would be submitting that in the context of this case, the prerogative relief issue, if it goes beyond the threshold and orders nisi would - - -
KIRBY J: As I understand the submissions, it just says, "Set all that to one side. We come into the Court and we claim the constitutional writs on their own footing as original proceedings in the Court", and, in a sense, that completely outflanks the appeal question.
MR TRACEY: Yes.
KIRBY J: I considered this in passing in a case called Glennan and I think I there said something like one should exhaust the appellate remedies first, but I am not at all sure that that is correct.
MR TRACEY: Well, in the context of these proceedings, we submit that it is the appropriate course and - - -
GLEESON CJ: In any event, we are in the course of hearing your argument in support of your appeal.
MR TRACEY: Yes, and that argument, to a considerable extent, will inform the submissions that we propose to make at the threshold of the constitutional relief application, because we submit that it will emerge from this analysis that there is no arguable case for the grant of prerogative relief and, if that is right, then it does not pass beyond the notional stage of the need to make out an arguable case.
GUMMOW J: The problem really is that the notion that you withhold prohibition or mandamus or whatever on the ground that there is some other remedy available, it has grown up in the system where the other remedy is not in the very same court in which the other relief is sought. This is a by-product of Abebe really.
MR TRACEY: Yes, your Honour. The decision of Justice Finn was taken on appeal - - -
HAYNE J: Just before you come to that, I understand Justice Finn's reasons for judgment as amounting to the proposition that there were three relevant incidents relied on and the Tribunal dealt with only two. Is it as simple as that?
MR TRACEY: Yes, it is, your Honour.
GLEESON CJ: And the way the Tribunal dealt with those two was not to reject the evidence of the applicant about what happened, but to say or to conclude that it did not happen as a result of clan-based persecution.
MR TRACEY: That is right, your Honour, and the people who are allegedly engaged in the attack on the house were also Hawiye and so it will be our submission ultimately that nothing turned on the point. Once the Tribunal had come to a firm view, based largely on the Department of Foreign Affairs and Trade advice, that the Hawiye were not targeting the Abaskul or anybody else, then whatever may have been the motivation for the attack on the house, it had nothing to do with a Convention-related reason.
GLEESON CJ: The key finding of the Tribunal, as I understand it, is on page 115, line 25, that is:
the Tribunal concludes that the attacks against her were motivated by reasons other than race.
MR TRACEY: Exactly, your Honour.
GLEESON CJ: Now, I suppose a question is whether, if that was the conclusion the Tribunal came to in relation to incidents two and three, it is a realistic possibility the Tribunal would have come to a different conclusion in relation to incident number one.
MR TRACEY: Yes, your Honour.
KIRBY J: Well, your submission may well be correct, but if a party propounds three bases for its argument, (a) and (b) and (c), and then on the grounds only of reference to (a) and (b), it is rejected; the question is left hanging in the air as to whether, had the decision maker turned attention to (c), and whether it did or it did not is not apparent on the reasons, it might have changed its opinion.
MR TRACEY: Your Honour, we would submit, with respect, that this ought not to be analysed as grounds one, two and three in the sense that one would use the term grounds, for example, of an appeal or an application for judicial review, where some of them are dealt with and others are not mentioned. Rather, what we would submit is that there were a series of incidents referred to in a narrative by the applicant that she mentioned in support of her claim to be a refugee within the meaning of the Convention.
Now, we submit that simply because the Tribunal in its reasons does not find it necessary to make findings about each of the incidents that are referred to in the narrative, does not constitute a breach of its obligations under section 430.
HAYNE J: Implicit in that proposition is a proposition about what is meant by material in 430(1)(c).
MR TRACEY: Yes, your Honour.
GLEESON CJ: And what is meant by questions of fact, and, in particular, the level of particularity, or generality, with which you identify what you refer to as a question of fact.
MR TRACEY: Yes, your Honour. I want to come back in some detail to the construction of 430. But it may be convenient just to complete the background narrative in relation to each of these matters before I do that just to set the scene.
The matter was the subject of an appeal to a Full Court. At page 143, in a joint judgment, their Honours identified, at the bottom of the page, the finding of Justice Finn that the Tribunal:
had failed to set out a finding on a material question of fact, namely a claim by the respondent that her family home had been attacked by members of the Hawiye clan.
In the context of what your Honour the Chief Justice just mentioned, we draw attention to the formulation of that proposition because, on the one hand, what is being referred to is a claim by the respondent, and the other is the reference to a material question of fact, and we say the two things are not the same. Then at page 152, the Full Court notes at the top of the page, about line 7, a dictum from another Full Court which had said that:
The essential task of any primary tribunal is to find the relevant facts and then to evaluate them in the light of the applicable law.
They went on:
In the present case, we discern no error in the way in which his Honour approached this aspect of the case. When assessing the relative centrality of issues raised - and hence their materiality - a specific instance of alleged maltreatment alleged, and upon which the asylum-seeker's fear of persecution for a Convention reason was said, in part, to be based, would usually constitute a material question of fact. Very often the success or otherwise of a claim will turn on the credibility the RRT attaches to the asylum-seeker's account of such incidents.
For the reasons his Honour gives, there was a failure to make a finding on what was plainly a material question of fact.
GLEESON CJ: Just before you pass from that, in relation to the last sentence in the paragraph, that is at line 15, there was no finding adverse to the credibility of the applicant in the present case, was there?
MR TRACEY: Not in respect of these issues; there was in relation to another claim that she had lately made about an incident in which the home of her sister was bombed almost eight or nine years before. The Tribunal did not believe that. But she was believed in respect of the incidents that are the subject of the observations that I read to the Court earlier from the Tribunal.
The relevant error then, it was said, to have occurred and warranted the Court's intervention was a breach of 430(1), and in particular, 430(1)(c), the material facts finding requirement.
GLEESON CJ: You say that a contravention of section 430, if it occurs, does not fall within section 476.
MR TRACEY: Exactly.
GLEESON CJ: What do you say is the sanction for section 430?
MR TRACEY: A mandatory order either of the Federal Court under section 481 or mandamus from this Court.
GLEESON CJ: And do you say the same in relation to section 25D of the Acts Interpretation Act?
MR TRACEY: It would have to be read in conjunction with some other obligation to give decisions, but yes, your Honour. If a tribunal does not give the reasons that are required then it can be required to do so. The problem with the Migration Act, in that regard, your Honour, is that unlike, for example, the Judicial Review Act which contains its own internal mechanism for rectifying deficient reasons, it specifically provided that you can go to the Federal Court and ask for inadequate reasons to be rectified and the Court can so order. There is not an equivalent provision in the Migration Act.
KIRBY J: Does not that rather suggest, by juxtaposition of the Judicial Review Act and this Act that the remedy that you propound is really not sufficient because it contemplates that the order stands and is not set aside and that all they have got to do is give a few more reasons for the decision that they made, whereas the very complaint which the respondent makes - applicant - is that had only they considered point (c) they might have reached a different decision, hence you have to set aside the order.
MR TRACEY: No, your Honour, and I think that really highlights the difficulty. What we submit 430(1)(c) and equivalent provisions require is the Tribunal to expose its reason. Now, if it exposes its reasons and they do not deal with a relevant consideration then, normally, that is relied on in judicial review proceedings to establish that ground and there is no shortage of authority for the proposition that a failure in reasons to deal with a particular issue that is one that is bound to be dealt with and not dealt with provides the ground for judicial intervention and the reasons serve that purpose, they expose the deficiency.
What we are suggesting is not that the matter go back for rectification in the sense that the Tribunal gets another go at doing what it should have done in the first place. It goes back only if it can be said that the Tribunal has not in its reasons set out one of the four things that 430(1) requires it to do.
KIRBY J: This is a theory of a disjuncture between reasons and decision.
MR TRACEY: Yes.
KIRBY J: The proper theory of the right to reasons and the obligation to give them is that it concentrates the mind of the decision maker on having reasons, not whim.
MR TRACEY: Yes, your Honour. That is right, your Honour, and in the process may provide evidence that there has been a deficiency in that process which can subsequently be relied on but, as has been held by this Court, what is being reviewed when a matter does go to a court is the decision, not the reasons.
KIRBY J: What would happen, on your theory, if the Federal Court ordered or found that the reasons were inadequate or the reasons be given in accordance with the section and the Tribunal came to the view that, "Considering (c), which unfortunately we have overlooked, we want to change our decision", are they empowered to do that?
MR TRACEY: It has to expose its reasons for its decision.
KIRBY J: But what if - I mean, you can overlook things. I have done it myself. What happens if you then have the Federal Court send it back and it does convince them, "Well, if only I had thought of (c), I would have come to a different view". They have no power to change their order or their decision. They just have to somehow pretend that they give more reasons to patch it up, which is what you say they - - -
MR TRACEY: No, they should not patch it up because what they are required to do is expose their reasons for their original decision. Now, if they say, "Well, we are not going to change our reasons because that statement actually reflects what we did and the reasons we did it for", then once that is said there is scope for the applicant to seek review on any available grounds.
HAYNE J: Now, implicit in that again, is there not the proposition that the congruence that is to be achieved is achieved by notionally determining first that the Tribunal's decision is not otherwise infirm, for example, for want of consideration of a relevant matter, and that having made that assumption first, if there is a remitter for deficiency of reasons, you are remitting from the premise that the decision maker has considered all relevant matters which leads to, perhaps, highlighting the difficulty in which the Federal Court is placed because sufficiency, or consideration of relevant matters and the like, is one of the excluded grounds, is it not?
MR TRACEY: Yes, it is, your Honour, and - - -
HAYNE J: So that the premise for this construction of the Act, is a premise which is denied to the Federal Court by the division that Part 8 compels.
McHUGH J: This very case could throw it up. Supposing under 481 the Tribunal was directed to give more adequate reasons according to the theory of Justice Finn in the Full Court, and complying with that direction, the Tribunal said, "I did not take into account this other incident". Now, the reasoning would then be complete but because of 476(3)(e) the decision would stand because, even if it was a relevant consideration, it should have been taken into account. The Tribunal expressly says, "I did not take it into account". Its decision must stand because of the provisions of section 476(3).
MR TRACEY: Your Honour, we would not submit that either of these cases would be cases in which it would be appropriate to send the matter back for rectification of reasons. Our first point is that there has been no breach of 430(1) but, on the assumption that there may have been, we would submit that it would have had to have been a far more blatant breach than is evident in either of these cases, namely, a simple failure to make an express finding that a reviewing court thought might be appropriate. Your Honour, the sort of case where it might be sent back for rectification of reasons might be one in which the Tribunal has not referred at all in its reasons to a Convention ground that is plainly relevant on the case put by the applicant.
HAYNE J: But that then highlights the difficulty that may perhaps underlie your argument. Material question of fact could be construed - as I understand it, you contend should be construed - as material to the way in which this decision maker based his or her decision, or you could construe material question of fact by reference to those matters that the decision maker should have had regard to. If there is a dilemma there, at some point, Mr Tracey, I am going to be suggesting that you need to choose. You may say there is no dilemma.
MR TRACEY: We do, your Honour, and I was proposing to deal with it but I am quite happy to do it now.
McHUGH J: Much may depend, may it not, on whether (c) and (d) are linked together? If they are, then the material facts to which (c) is referring would appear to be the findings of fact which the Tribunal has made.
MR TRACEY: Yes, your Honour.
GLEESON CJ: Exactly. The Tribunal determines the materiality. There may be error involved in the process of reasoning but that is a factual error. I would have thought the present case throws up the precise problem that Justice McHugh raised. Can I take you back again to page 115 to the key finding of the Tribunal. The Tribunal referred to "the two isolated occasions" on which "the applicant encountered problems". There may be some circumstances in which some people would take the view that when a woman's husband is set to flight, that does not involve the woman encountering problems, but the finding of the Tribunal was that those were the two isolated occasions on which she encountered problems.
A possible point of view is that as a matter of substance the complaint that is being made by the applicant is that there was an error of fact in regarding the two occasions referred to as isolated from the occasion that is not mentioned. That is the one where the husband was put to flight. A possible point of view is that that is a common or garden allegation of error of fact as distinct from a failure to give reasons. The reasons say, "I regarded those occasions as isolated".
MR TRACEY: Yes, we accept that, your Honour, and, with respect, adopt it. The only caveat that I would put in is that the applicant's case in the court below was not that this house attack was related in any way to the two earlier events. So that there was no attack in the court below as to the finding about it being isolated. The substance of the attack below was simply on the basis that there was not a finding of fact made about a third incident that might have persuaded the Tribunal that this lady was a refugee and had been attacked for a Convention-related reason.
GLEESON CJ: There may be a considerable difficulty, of which the present case might provide an example, in distinguishing between reasons that are said to be erroneous because they do not take proper account of the whole of the evidence and a failure to comply with a statutory requirement to give reasons.
MR TRACEY: Very much so, your Honour, yes, and, of course, that is linked to consequences, because there is no inevitable logic that a failure to satisfy a statutory requirement to provide reasons should lead to the setting aside of the decision to which those reasons relate.
GUMMOW J: I think, in answer to Justice Kirby you said there could be a mandamus?
MR TRACEY: Yes.
GUMMOW J: From what court?
MR TRACEY: This Court.
GUMMOW J: On remitter by the Federal Court under 39B or is that excluded by 485?
MR TRACEY: Your Honour, yes - - -
GUMMOW J: We have to know the answer to that to evaluate all this.
MR TRACEY: Your Honour, we have looked at that and our view at the moment is that it would turn upon how closely the nexus requirement of this being an RRT reviewable decision or a decision in relation to a visa, which appears in 475(1) - - -
GUMMOW J: Exactly. That is right.
MR TRACEY: - - - and can be said to touch on a decision rectifying reasons. On balance we think the better view is that it probably could be remitted, your Honour, but I do not want to make that as a formal submission on behalf of the Minister.
GLEESON CJ: Could I refer to the definite article in section 430(1)(c)?
MR TRACEY: Yes, your Honour, "the" findings.
GLEESON CJ: Yes. If there are not any findings, you do not have to set them out presumably.
MR TRACEY: Indeed, and there may be cases where you do not. For example, if the person puts in a form that makes no claims - - -
GLEESON CJ: But Justice McHugh raised with you the question of a decision maker who, in effect, says in response to an order for mandamus, "These reasons might not look much to you but they are mine and they are all I have got."
MR TRACEY: Yes, "They represent what I actually did and I stand by them, right or wrong".
KIRBY J: Yes, but is that what the purpose of the Parliament was in enacting this common provision?
MR TRACEY: Yes.
KIRBY J: Was not the purpose to ensure that there were more forthcoming reasons of tribunals?
MR TRACEY: Your Honour, there is no doubt that one of the purposes was to enforce a little intellectual discipline on the part of decision makers. But, equally, it was to enable aggrieved parties to know why they had lost and to make an informed judgment as to whether or not they ought to challenge the decision in a court.
McHUGH J: Before 476, the fact that they did not make any findings might be a ground for saying they failed to take into account a relevant consideration, for example.
MR TRACEY: Indeed, your Honour, that is right. In that sense, the provisions of reasons that did not disclose that the Tribunal had dealt with a matter it was bound to take into account would, in the normal event, expose the decision to challenge on that ground. It just so happens in the context of this Act, that ground is not available, but that ought not to, in our respectful submission, alter the analysis.
KIRBY J: Not available in the Federal Court.
GLEESON CJ: If an order for mandamus went to this decision maker, and this decision maker said, "Look, I have already told you that I regarded these two instances as isolated, and as the two isolated occasions on which the applicant encountered problems. You are welcome to disagree with that if you want to, but I have already told you what my process of reasoning was".
MR TRACEY: We do not submit that this is the sort of case where a court would grant mandamus because there is no obvious evidence - - -
GUMMOW J: It is conceivable there could be such a case.
MR TRACEY: Yes, but it is not this case, and it is not Israelian.
GUMMOW J: Quite, but one has to construct the Act.
MR TRACEY: Yes.
GAUDRON J: Well, I have some difficulty with a notion that mandamus will lie any way in the context of these provisions, that is, mandamus to give reasons. The Tribunal, it does not seem to me, can change its decision. There is no provision for a different decision to be made, on your theory, by the Tribunal. All there is is the possibility that some error might be disclosed or corrected. So, what is the point of mandamus? What does that achieve?
MR TRACEY: Well, your Honour, it would work in some cases. Let me furnish this example: a case in which the Tribunal, in its reasons, did no more than record the claims of the applicant and then its conclusion that the applicant was not a refugee, and said nothing in between about its reasoning process, that it got it from the facts as they were alleged to have been, and the conclusion to which the Tribunal came. Now, we would have thought that that was a case in which 430(1) plainly had not been complied with. Sending it back would serve the purpose of requiring the Tribunal to provide the reasons that provided the link between the facts as claimed and the conclusion as reached. That may or may not disclose reviewable error, but it would ensure that the Tribunal had complied with its obligation to provide reasons. It is that sort of case we have in mind when we say that mandamus or a mandatory order under 481(1)(d) might have work to do, but we do not say that it operates in a case like this.
GAUDRON J: Now, they are the powers of the Federal Court.
MR TRACEY: I am sorry, your Honour?
GAUDRON J: Section 481(1)(d).
MR TRACEY: Yes, your Honour.
GAUDRON J: How would that come about?
MR TRACEY: Your Honour, given 478, that you would have to lodge a protective application within the 28 days of being notified of the decision and you would, in the context of that application, seek an order from the Federal Court directing the Tribunal to - - -
GAUDRON J: It sounds like an almost improper purpose argument.
MR TRACEY: I am sorry, your Honour?
GAUDRON J: I mean, making a protective application seems to me almost like an abuse of the processes of the courts, but so be it if that is what this Act - - -
MR TRACEY: Your Honour, it happens all the time in judicial review applications and the first directions hearing in the Federal Court, the first order that is made is that reasons for decision be provided.
GAUDRON J: Well, that may well be because under the AD(JR) Act you can review conduct, and there is a specific provision in there about ordering reasons, but here we have a very strange statutory scheme which, on your submissions, is even stranger than it would at first sight appear, I think.
MR TRACEY: Well, your Honour, I concede the unusual nature of this scheme and even if it be the case that it would not be appropriate to use 481, there would still be relief available under 75(v) against the Tribunal if it did not comply with its obligations under section - - -
GAUDRON J: So you concede it would be jurisdictional error?
MR TRACEY: Yes, if it has plainly not done something that it is statutorily obliged to do, then there would be a failure to exercise its jurisdiction.
GAUDRON J: Yes.
KIRBY J: You treat the Tribunal as an officer of the Commonwealth for the purposes of section 75(v)?
MR TRACEY: Yes. The member constituting it, yes, your Honour.
KIRBY J: That would be so even if the member has retired or resigned? Because many of them do I gather.
MR TRACEY: Yes, there has been some cases, your Honour, not in this particular context, but of equivalent provisions under State legislation, where a rectification order has been made and somebody who has retired has been required to think back as to why he or she made a particular decision and provide reasons for it.
GAUDRON J: Now, I think you are right to say there would be constructive failure to give reasons.
McHUGH J: Yes. In Reg v Cain; Ex parte Evatt [1975] HCA 57; 133 CLR 37, and the Commissioner of Taxation, was an application to this Court by way of mandamus for the Commissioner to give more adequate reasons than he had given complying with his duty under regulation 35 of the Income Tax Regulations, and although the application failed on the merits, no member of the Court seemed to think that the remedies were misconceived, they discharged the order nisi.
MR TRACEY: I am indebted to your Honour for that.
GAUDRON J: Now, Mr Tracey, once you accept that it as a constructive failure to give reasons, there may well be cases - and at some stage I might need to hear you why this is not one - why you do not infer from a constructive failure to give reasons a constructive failure to consider the application as put.
MR TRACEY: I am happy to deal with that and I will in due course - - -
GAUDRON J: That may come up in reply to the submissions to be put by Mr Basten and Mr Keon-Cohen.
MR TRACEY: Yes, your Honour, we will bear that in mind.
GLEESON CJ: The related problem may be raised by what Justice Finn said at page 135, lines 28 to 31. He concluded:
that the statement of reasons of the Tribunal is deficient in its failure to address -
the particular -
matter.
There may be a difference, may there not, between a deficiency in a statement of reasons as being an inadequate account of your reasons and a deficiency in a process of reasoning?
MR TRACEY: Very much so, your Honour, and it has never been the law that one necessarily infers from a failure to mention a particular matter in reasons, that it was not brought into account. In fact, there are decisions to the contrary and we have referred to them in our submissions in reply, but there is a significant difference, your Honour, between the two concepts.
KIRBY J: Why would one not construe 430(1)(c), given the very important reforms that were introduced by the Judicial Review Act, and the Administrative Appeals Tribunal Act, and Acts Interpretation Act of this Act as meaning that there is an obligation on the Tribunal to set out the findings which it makes on any material questions of fact? That is to say any which are objectively material, it must set out the findings of the Tribunal on them, those material questions of fact.
MR TRACEY: Your Honour, we accept that there is an obligation imposed on the Tribunal by 430(1)(c) to set out its findings on any question of fact that it regards as being material and - - -
KIRBY J: You say that "it regards" but it just does not say that. It says "on any material questions of fact", that is to say objectively.
MR TRACEY: I accept - and objectively in the sense of imposed by the legislation as a material question of fact - no difficulty with that at all, your Honour. But the critical thing and the difference we have with the decisions below is that it is the Tribunal's findings on those material questions of fact and that this does not impose a freestanding obligation to deal with all material questions of fact that might later be regarded objectively as being material by a reviewing court whether or not the Tribunal has considered them or not.
KIRBY J: I think we just have to be a bit careful chipping away and narrowing the scope of these sections given that they are in common form. They are a template that were intended, as I recall it, serving at the time on the Administrative Review Council, to introduce a very radical change in administrative law.
MR TRACEY: Of course, but what we are proposing does not involve any chipping away, your Honour. The principal purpose of these provisions, and there were many, but the principal and relevant one was to expose error if it existed.
McHUGH J: It had to set out the findings that it made, it did not have to set out the findings that it did not make.
MR TRACEY: Exactly, and if it did not make them and should have made them, then there may be a ground of review. It just happens that in the context of this Act, there is not. But under the Judicial Review Act, the requirement to give reasons would have done its work because you could then have claimed judicial review on the basis that there had been a failure to have regard to a relevant consideration.
KIRBY J: Well, I repeat, there is no remedy in the Federal Court, there is remedy in this Court.
MR TRACEY: Under this Act, yes, your Honour, but more generally - and your Honour raised the question of provisions like this which operate far more widely than in the context of this Act, then the remedy does lie in the Federal Court.
KIRBY J: It is a question, in a sense, of whether you put the emphasis on the definite article or on the word "any".
MR TRACEY: Yes.
KIRBY J: If you put the emphasis on the definite article it is the findings, good or bad, strong or weak, adequate or inadequate of the Tribunal. If you put the emphasis on "any material" "findings of fact" then it is the findings which the Tribunal makes on any material questions of fact upon which material questions of fact it shall make findings.
MR TRACEY: Well, your Honour, we say it must be the definite article when read in context. In (a) "the decision" can only be the decision made by the Tribunal in the given case; (b) can only refer to "the reasons" for the decision in the particular case and (d), as his Honour Justice McHugh earlier observed, must be linked back to (c), and plainly, refers to the evidence on which "the findings" - the definite article - findings made by the Tribunal were based.
GLEESON CJ: Well, that gets back to the question of what would be the practical consequences of an order for mandamus. Unless the consequences of an order for mandamus would involve reconsidering the decision and perhaps amending the decision, you could not order a tribunal to give reasons for findings that it never made.
MR TRACEY: I know. And, the answer may be, your Honour, that in an unlikely case - and as we keep stressing, your Honour, this is not the sort of cas where mandamus would be appropriate because the Tribunal has covered all the bases that are prescribed by 430(1) but if, in the example that I cited a little while ago in answer to her Honour Justice Gaudron, there has been a wholesale failure to set out the reasons for decisions, for example, then when you send it back by way of mandamus then what the Tribunal has to do is to give its reasons. It has come to a decision. It must have had some reasons for doing it and it rectifies the reasons accordingly.
GLEESON CJ: But if section 430 imposes not merely an obligation to state any findings you made but imposes a substantive obligation to make findings on any material question of fact then an order compelling someone to comply with that requirement would have to be able to compel them to reconsider their decision, would it not?
MR TRACEY: Yes, and that is one reason why that does not impose the general obligation. It does not pass beyond an obligation to expose its reasons, that is all.
GUMMOW J: Or lack of them.
MR TRACEY: Or lack of them, but as his Honour the Chief Justice rightly said, with respect, a minute ago, you could not by way of mandamus require them to state reasons that they did not have.
KIRBY J: The problem I have with your theory of that paragraph is that it is equivalent to saying "sets out the findings on questions of fact which it finds to be material" whereas, that is not what the Parliament has enacted. It has said:
sets out the findings on any material questions of fact - - -
MR TRACEY: No, "the findings" - "the findings" - its findings.
KIRBY J: "Material" is an adjective that qualifies questions of fact.
MR TRACEY: What it has to set out, your Honour, is its "findings on any material questions of fact". It is not an obligation to make findings on all questions of fact that might be material. That is not what it says.
KIRBY J: Did Justice Brennan examine this in the early days of the Administrative Appeals Tribunal?
MR TRACEY: Yes, he did as a member of this Court in O'Brien's Case. He held that - - -
GUMMOW J: That is what, a repatriation case?
MR TRACEY: Yes, it was, your Honour. What he held in substance was that a failure to comply with a provision such as this did not, without more, constitute a ground of judicial intervention. It is Repatriation Commission v O'Brien [1985] HCA 10; 155 CLR 422. The relevant passages are at 445 to 446. He records at the bottom of 445 that the Federal Court had held that:
a further ground for setting aside the AAT's decision to affirm the Commission's refusal to grant the respondent's claim, though their Honours would have remitted the matter to the Tribunal if this had been the only error of law that they had perceived. Their Honours thought that the AAT had failed "to expose a satisfactory process of reasoning which led to the rejection of [Mr O'Brien's] claim" and that the court "should regard a failure to comply adequately with the obligation to give reasons as itself constituting error of law, at least when a claim to a pension is rejected". It is not clear to me that the AAT did fail to expose its reasons for rejecting Mr O'Brien's claim but, in any event, a failure by a tribunal adequately to fulfil its statutory obligation to state the reasons for making an administrative decision does not, without more, invalidate the decision or warrant its being set aside by a court of competent jurisdiction. If a failure to give adequate reasons for making an administrative decision warrants an inference that the tribunal has failed in some respect to exercise its powers according to law (as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts), the court may act upon the inference and set the decision aside. In such a case, the exercise of the statutory power to make a decision is held invalid not because of a failure to state the reasons for making the decision, but because of a failure to make the decision according to law. An obligation to give oral or written reasons for a decision is cast on the AAT by s.43(2) -
that is the equivalent provision -
but the remedy for a failure to fulfil that obligation adequately is a mandatory order by the court to do so.
Justice Murphy in that case agreed generally with the decision of Justice Brennan, although he did not expressly refer to this issue.
HAYNE J: Can I then follow out something that his Honour says there in the context of this Act. Assume a case where the applicant claims refugee status on two bases, one founded in race, one founded in religion. Assume the Tribunal deals only with one of the two grounds and says nothing of the other. What remedy would the applicant have in the Federal Court - any?
MR TRACEY: No, would not have a ground of review in the Federal Court.
KIRBY J: That is a pretty serious result, is it not?
MR TRACEY: Your Honour, it is the result that occurred as a result of this Court's decision in Abebe and Eshetu. There is no remedy for breach of natural justice.
KIRBY J: Please do not blame this Court.
MR TRACEY: I beg your Honour's pardon?
KIRBY J: It occurs on your theory of the Act as a result of the enactment by Parliament and the exclusion provisions, but it does not arise in this Court under the Constitution.
MR TRACEY: That is so.
McHUGH J: It is a serious error, but if the Tribunal had expressly said in its reasons, "I am not taking that matter into account", you would still get exactly the same result.
MR TRACEY: There may be good reason for doing that. It may be, in a given case, your Honour, that the way in which the Tribunal deals with the ground, both grounds emerge out of the same factual position, and in dealing with the first ground it says or finds something that would be determinative of the second ground and it does not then turn its mind in any detail to it. It cannot be said, as a general proposition, that just because a particular claim is made and not expressly dealt with in Tribunal's reasons that there has been a failure that would lead to judicial review, assuming the full panoply of judicial review grounds were available. It must depend on the circumstances of the particular case.
HAYNE J: And the narrowing occurs in a way which may perhaps bolster your argument in section 476(1)(e) with the reference to:
an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by -
et cetera.
MR TRACEY: Indeed, your Honour. The facts as found - one does not get to the ground in (e) until the fact-finding exercise has been done.
KIRBY J: But that, on one view, would mean the facts as lawfully found by, ie, in accordance with this Act, ie, depending on one's interpretation of section 430(1)(c). I think we have been through the debate and I do not wish to reopen the debate.
MR TRACEY: Yes, I would only be repeating myself in responding to your Honour.
GLEESON CJ: Am I right in thinking, am I not, that Justice Finn decided this case on the basis of section 430(1)(b)?
MR TRACEY: He referred generally - - -
GLEESON CJ: I am looking at page 135 line 28. He concluded that:
the statement of reasons of the Tribunal is deficient -
MR TRACEY: Yes. He does not precisely identify (1)(b) and, indeed, in the passages from Thevendram that he quoted immediately before that, the emphasis is on (1)(c) and (1)(d) and then he says, in that paragraph to which your Honour the Chief Justice has just referred:
As the Full Court indicated in the quotation from Thevendram to which I have referred, a breach of section 430 may in a sense be technical. Nonetheless, it is important if public confidence -
and so on. So it may be that he was thinking of (b), (c) and (d).
HAYNE J: Well it must be read in the light of page 133 line 32, must it not? The reference to:
a growing body of jurisprudence on what constitute "material questions of fact"
MR TRACEY: Yes, your Honour, that would certainly pick up (1)(c), your Honour. May I go quickly to Israelian - - -
McHUGH J: Some support for your general approach, I think, to 430 is obtained by looking at section 13 of the Administrative Decisions (Judicial Review) Act, because there the decision is made and after the decision is made the person is entitled to request for the reasons to be given and section 13, instead of segregating them into (a), (b) or (c) just simply says:
any person who is entitled to make an application to the Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.
In that context it is pretty difficult to think that you have got an obligation to set out the findings that you did not make. There is no change at all really; it is the identical language.
MR TRACEY: Yes. The only difference, of course, was that the draftsman of section 13, I think it is in subsection (7), provided the remedy in the event that the obligation was not satisfied.
GLEESON CJ: Does section 25D of the Acts Interpretation Act apply to section 66?
MR TRACEY: Yes, but only in a limited way. We would submit that it applies only for the purpose of identifying the relevant facts and other material - - -
GLEESON CJ: Well, to the extent to which section 66 imposes an obligation to give reasons, it picks up section 25D.
MR TRACEY: Yes, we would say it did, your Honour. Can I just take the Court quickly to Israelian and, again, identify the error in the way that has been treated at various levels below. The starting point here, if the Court pleases, is some written submissions were made to the Tribunal by the applicant, and they appear at page 87 of the appeal book. The Court will see at line 30 that Mr Israelian's advocate, his solicitor, who was making these submissions on his behalf, said:
For these reasons and others, Mr Israelian seeks refuge in Australia. With regard therefore to the assessment of this application, we request that you look to:
a) the applicant's political opinion (ie opposed to the completion of military service in defence of Armenian territorial claims in NK) -
that is Nagorno-Karabakh -
b) the applicant's membership of a particular social group (ie persons regarded as deserters and/or draft evaders).
What he had done was come to Australia and stay at a time where, if he had been in his home country, he would have been liable for military service. Then at the top of page 88, in the first full paragraph, there is a reference to the situation in Armenia:
Subsequent to the disintegration of the USSR, the former Soviet republics of Armenia and Azerbaijan had been in dispute over NK, an area situated within Azerbaijan, but populated mainly by ethnic Armenians. As stated previously, we maintain that this territorial conflict between sovereign states was more akin to a civil war, in that persons who had previously shared a common nationality, now fought over perceived differences of ethnicity and culture. With the collapse of the unifying Soviet state, the two small states lapsed into open and violent conflict. Though the conflict reached something of a stalemate in May 1995, we stress that no firm political resolution has been reached as to the future of the territory.
Then they go on to say that Mr Israelian continues to fear return to his homeland and that the:
various forms of discrimination, persecution, prosecution and enforced conscription being practised against young Armenian men regarded as deserters and/or draft evaders.....maintain that such a perception is likely to be held of the applicant, given that he has failed to respond to call-up notices in January 1993 and that authorities have made several enquiries as to his whereabouts over the past five years.
Aside from disputation as to the severity of discrimination encountered by persons such as the applicant in Armenia (ie whether or not such discrimination is significant enough that it can be regarded as persecution), perhaps the most difficult aspect of Mr Israelian's review application is determining under which Convention ground his claim to refugee status might be deemed to fit. We of course acknowledge that the drafters of the UN Convention and Protocol specifically enabled sovereign states to conscript their citizens for military service and that simple objection to such service was not a ground for refugee status. With regard to Mr Israelian's specific circumstances, we acknowledge also that he has previously completed military service with the Soviet Army and that this - at first glance - would appear to contradict his stated position that he is a conscientious objector.
There is then reference at the top of page 89 that if someone dodges the draft in Armenia, "could be imprisoned for up to ten years". That is in line 3. Then the submission:
that such a term of imprisonment would indeed constitute persecution -
Now, that was the application. The matter came on to the RRT. Its reasons start at 128. Relevantly, the Tribunal's reasons start at 133 on to 134, where the Tribunal records that:
The Applicant only referred to his fears arising from his support of the communists on one occasion and clearly indicated to the Tribunal that his only fears of returning to Armenia were related to the war with Azerbaijan.
So that the political issue was quickly put to one side, and then at the bottom of that page:
The Applicant's claims are related to his object to the war over NK. It has been argued that while he is not opposed to all wars, he has a particular conscientious objection to that war. At various times he has said his reasons for that objection are that the war is futile; it has no resolution in sight unless the ethnic Armenians withdraw from NK and relocate to Armenia; he does not wish to fight former colleagues from the Army; he does not want to be sent to the front; as a conscript he will be sent to the front; he does not want to be killed in a pointless war; the war has been condemned by the international community; he has already served two years -
that is not imprisonment, that is in the Army -
and does not want to waste any more time in the army; and he does not want to be involved in a war that resorts to ethnic cleansing.
Then at 135, the Tribunal records that - this is line 4:
The Applicant does not have an absolute objection to military service. He stated that he would fight and kill Turks, Azeris or anybody else that threatened Armenians with an invasion, and that he would have fought against Azeris if he had been there when fighting broke out in Azerbaijan and Armenians were targeted.
Then at 139 to 140, starting at line 19, the Tribunal found that:
A consideration of the circumstances leads to the conclusion that the Applicant is not a conscientious objector. Even if he did have a conscientious objection, his punishment for avoiding his call-up notice would not be motivated by a Convention reason but would be the application of a law of common application, imposed by the authorities regardless of those authorities imputing any political opinion to the Applicant or otherwise being motivated by Convention reasons.
The last two lines of that page:
His -
I think that is a "he" - He:
does not hold genuine conscientious objections to military service and, even if he was to be punished on return, such punishment would not be motivated by Convention reasons. His fears related to work and accommodation or other types of harm he may encounter if he returns all flow from his desire not to comply with his call-up notice and are, therefore, not Convention related.
In all of the circumstances, the Tribunal finds that the Applicant does not have a well-founded fear of persecution for Convention reasons and is not a person to whom Australia has protection obligations.
GLEESON CJ: If the argument against you is right, this is precisely the case postulated by Justice Hayne in his earlier question.
MR TRACEY: Yes, and we would submit that it also serves as a good example of the answer that I gave at that time, that in dealing with a particular issue the Tribunal might succeed in effectively dealing with all the claims that arose because, as your Honour will have noted, that at a number of stages the Tribunal has specifically found that punishment for failure to comply with a call-up notice would not be motivated by any Convention reason, not just the ones alleged, but the Tribunal has passed beyond that and said, none. Similarly, at 139 on to 140, "not be motivated by Convention reasons".
So it has turned its mind generally to the whole issue and made findings of fact. The two grounds that were relied on, and this appears at lines 11 to 13 on page 130, the two categories that were urged to be the relevant ones, membership of a particular social group and political opinion. So that they were both comprehended by the findings.
KIRBY J: The reasoning of the Tribunal at the end there that you read us sounds very similar to reasoning which found favour in this Court in White's Case. Do you remember that during the Vietnam War? It was said that objection to the Vietnam War on the grounds that it was contrary to human rights and so on was not sufficient. You had to be an objector to every war in every conceivable circumstance.
MR TRACEY: Yes, your Honour.
KIRBY J: Justice Goldberg apparently in a decision which is cited there has said in some circumstances objection to a particular war which is contrary to fundamental human rights can give rise to lifting a person out of just a law breaker - I am referring to Radosav Jovicic - is that reported, that case?
MR TRACEY: I do not know, your Honour. We do not think so, but, your Honour, we understand that to be based on some observations in a United Nations - - -
KIRBY J: The High Commissioner for Refugees apparently said something.
MR TRACEY: Yes.
KIRBY J: Where do we find what the High Commissioner said?
MR TRACEY: I think we are in a position to show your Honour the provenance of that. It is in a book put out by the Office of the United Nations High Commissioner for Refugees, entitled "Handbook on Procedures and Criteria for Determining Refugee Status" that was put out most recently in 1992 and the relevant parts appear at pages 39 to 41. We are in a position to provide the Court and our friends with copies of those pages.
GLEESON CJ: Thank you. Now, what is the basis on which we are being handed this, as it were, a textbook, or - - -
MR TRACEY: Your Honour, I am happy to provide your Honour with the original. We have only got the one copy.
GLEESON CJ: No, no, I just wondered, is this evidence or is it - - -
MR TRACEY: No, the reason I handed it up was because it, I think, was the basis of the observations of Justice Goldberg to which his Honour Justice Kirby referred.
KIRBY J: It is referred to, I think, somewhere else. I have read it in the submissions of the parties and apparently it has been woven through these proceedings.
MR TRACEY: Yes, I think - - -
GLEESON CJ: We see reference to this from time to time in other cases. The delegates usually refer to this.
MR TRACEY: Yes. I think in this case - that book was referred to by this Court in the Chan decision. It is not definitive, it is not binding, but it is used as guidance from time to time by decision makers.
KIRBY J: Could we have the cover sheet in due course so that we can cite it?
MR TRACEY: Yes, we will arrange for that to be done, your Honour.
KIRBY J: I suppose, even if it is strictly not receivable in the appeal, it is probably available in the original jurisdictions.
MR TRACEY: Yes. Your Honour, I think your Honour the Chief Justice said that it had been referred to in the materials in this case. It was referred to and, indeed, there was a quotation from paragraph 171 in written submissions made on behalf of the applicant and they appear at 74 of the appeal book, so that it was relied on in support of the application.
Now, the decision of the Tribunal was then subject to an application for judicial review that went before Justice Nicholson in the Federal Court and his Honour's reasons commence at 147. The relevant passages appear firstly at 159 where, having set out some passages from judgments in Applicant A, his Honour says, towards the middle of the page, line 14:
In the present case, on the reasoning of McHugh J with the consequences of which Gummow J agreed, it is arguable the particular social group of which the applicant claimed to have membership was not defined by acts giving rise to the well-founded fear of persecution. The argument would be that the particular social group was defined by the acts of desertion or draft evasion and that such characteristic unites them. The fact requires to be found whether such acts define a group. That may or may not, according to the facts to be found in relation to the country, give rise to a well-founded fear of persecution because of penalties subsequently imposed in relation to those defining acts. If that were found, this would not be a case where the group contended for is defined by the fact its members face a particular form of persecutory treatment. The fact to be found was whether the attribute of being a deserter and draft evader identified such persons as a particular social group.
Then at 160, line 10, his Honour says:
In my opinion the Tribunal failed to form a view about the crucial issues which the definition required it to examine: cf Muralidharan at 415-416. The Tribunal ought not to have rejected the applicant's claim without coming to a view, if it could, concerning whether the International Community through the UN High Commissioner for Refugees had condemned the military action in NK as contrary to basic rules of human conduct and whether all the circumstances of the matter, deserters and/or draft evaders in Armenia were a particular social group; that is defined, united or linked otherwise than by fear of the allegedly persecutory law.
Then three lines from the bottom:
The Tribunal also failed to act in accordance with s 430(1) in that it did not set out the findings on the material questions of fact concerning whether the applicant had the membership contended for in a particular social group.
Now, that decision was subject to appeal and that appeal came before a Full Court which divided on this point. The majority, made up of Justices Einfeld and North, and their reasons start at 168 and the reasons of the Tribunal are extracted and then at 170 their Honours say - this is at line 29:
Even if the reference in the first sentence was to that particular social group, the decision does not address the argument concerning the alleged social group comprising deserters and/or draft evaders.
On a fair and not over-critical reading of the reasons, the Tribunal did not deal with this argument at all. In order to do so it was necessary to examine whether deserters and/or draft evaders were a particular social group and, if so, whether they were persecuted by reason of their membership of that group.
Then their Honours at 172 referred to the argument about the draft evaders constituting a particular social group as being an "important argument". That appears in the first line and again in the eleventh line and in the latter context the majority said:
Where the Tribunal fails to address an important argument of the applicant the Court will not know whether the Tribunal has specialist information or whether it would exercise its power to seek evidence for itself. Thus, even if the evidence produced by the parties could not support a decision in favour of the applicant, there is no certainty that the Tribunal would decide against the applicant.
Where the Court finds that an important argument of the applicant which depends on findings of fact has not been considered by the Tribunal and the Tribunal has thereby acted in breach of section 430(1), the Court should set aside the decision of the Tribunal and refer the application or an issue in the application back to the Tribunal to consider the matter -
We pause there and just draw attention to what we say is an important misconstruction of - - -
GLEESON CJ: They may be right or they may be wrong, but you could support that point of view, could you not, by saying section 430(1)(c) means this: it means that the Tribunal must make findings on any questions of fact regarded as material by whoever is measuring the Tribunal's performance and must set out those findings. If that is right, then the approach taken by the majority in the Federal Court is right. If that is not right, the contrary result may be equally obvious.
MR TRACEY: We say the major premise is wrong, your Honour, in that analysis and that all that 430(1)(c) does is to require the Tribunal to expose the findings which it has made - no more and no less - and it does not operate as a general obligation to make findings on material questions of fact. If it fails to do that, then in the normal course there will be other remedies available for it. Can I just come then quickly to the dissenting reasons of Justice Emmett. I take the Court to these passages because they do - and we respectfully adopt them - highlight that really what the issue here was was a question of fact finding and that in substance what was being complained about was that the Tribunal did not make the findings of fact that the applicant wanted made. Can I start at line 12 on page 179 where his Honour said:
There may be an element of uncertainty in the language adopted by the primary judge in criticising the Tribunal for having rejected the Respondent's claim "without coming to a view, if it could". It is not clear whether his Honour was referring to the possibility that the Tribunal ought to have made further enquiries because its fact finding and investigative procedure was inadequate or whether his Honour was simply saying that the Tribunal should have come to a view on the basis of the material before it.
If the latter is the correct interpretation, it is difficult to see how the Tribunal could have come to a view, on the material before it, that deserters or draft evaders constitute a particular social group. That is to say, in so far as they are persecuted by the harshness of punishment, that would be no more than the application of a law of common application to them in respect of their contravention of that law. In any event, that would be a finding of fact which would not be subject to review in the Court.
If the former is the true interpretation, however, as the Respondent contended, there was nothing to indicate what kind of material might possibly be available. The one straw in the wind was the reference to the German newspaper report that the United Nations High Commissioner for Refugees had indicated that Armenian draft resisters should be given refugee status.
That was the one piece of evidence that the trial judge had said that the Tribunal ought to have grappled with to see if it could come to a view about the issue of the existence of a particular social group of draft evaders and resisters.
There was apparently nothing more in the material before the Tribunal. The argument was that, if the United Nations High Commissioner for Refugees had expressed such a view, further enquiries were called for that may have elicited information which suggested that deserters and draft evaders, in the context of the Nagorno-Karabakh conflict, were being treated in a differential manner such as would constitute them a particular social group.
The difficulty with such an argument is that it is not clear what further inquiries could or should have been made by the Tribunal. There is certainly no material before the Court to indicate what might possibly have been ascertained by such an inquiry. On the material before the Tribunal, there is no basis for concluding that deserters and draft evaders constitute a particular social group. They are simply a particular group of law breakers, members of whom are punished, in the same way as all other citizens, for failing to comply with the requirements of the law of Armenia.
So that what emerges from that is that the error that was found was not an error of not finding the fact, because the trial judge had held that it may not have been possible to make the relevant finding. The complaint was that 430 had been breached because the issue had not been adequately grappled with, notwithstanding the absence of evidence that would have supported the existence of a social group, other than what his Honour Justice Emmett described as "the straw in the wind of a German newspaper article".
KIRBY J: Was that newspaper article in evidence before the Tribunal?
MR TRACEY: Yes, it was, your Honour. I am indebted to my friends; at page 100 of the appeal book, your Honour.
KIRBY J: I thought that that document you handed up earlier was this document, but that is from the general handbook of the High Commissioner - the document headed "Special Cases"?
MR TRACEY: What appears at 100, your Honour, I am told, is a report of "Human Rights Developments" in the area, but the reference to the German newspaper article - the article itself is not set out, but your Honour will see it referred to in the right-hand column on page 100. So the article itself was not tendered; it was just that it was referred to in the course of a country report.
KIRBY J: But would you accept that, say, a group of soldiers who refused to perform their military service in Hitler's Germany or for the Kymer Rouge, and who were hiding, could not constitute a particular social group?
MR TRACEY: In theory, we would not contend for that at all, your Honour, but it obviously would require evidence and that evidence would relate to the circumstances that existed at a particular place at a particular time and what - - -
KIRBY J: But it would have to consider that?
MR TRACEY: If the evidence was before the Tribunal, of course it would have to consider it, yes, your Honour, but the problem here was that there was no evidence. The only "straw in the wind" as Justice Emmett described it, was that second-hand reference.
KIRBY J: But you have the ascertain of the applicant for refugee status. Was he disbelieved in relation to the truthfulness of his ascertains or not?
MR TRACEY: No. It was not a factual ascertain; it was a question of whether, as a matter of law, the facts disclosed the existence of a particular social group for the purposes of the Convention and what Justice Emmett says, we respectfully say correctly, is that there was no evidence about that. There was no evidence that would have enabled the Tribunal, even if it had wanted to, to come to that judgment.
KIRBY J: Why could it not - I mean I do not know enough about the facts, but why was it not open on the ascertains of the applicant for refugee status to conclude, he saying, "I am not a general conscientious objector, I fought in the Soviet Army. In Soviet times, Nagorno-Karabakh was part of the Soviet Union. My colleagues and friends were there and we fought together in the army, but now, since the break up of the Soviet Union, we are different countries, and this is a war which I find deeply offensive, because it is offensive to human rights and I have got to go there and kill or be killed in a civil way." Now why does that not provide some evidence, especially read with the German newspaper, on which a tribunal could - not necessarily would, but could - find there are people who have this view. It is a bit like the Vietnam War in Australia: they are a group of people; they have this view; they are identified and they identify each other to each other, and that is a particular social group for the purpose of the Convention.
MR TRACEY: Your Honour, we submit that, firstly, there was not evidence of the latter kind that formed part of your Honour's example. The thrust of this applicant's claim - and this appears at 136 on to 137:
The thrust of the Applicant's claims was that the war over NK is futile because the Armenians who have lived there for generations cannot win. As a consequence, he did not wish to put his life at risk for something that is pointless. While there are written submissions that indicated he objected to the nature of the fighting and some information that the U.N. Security Council has condemned the conflict, these were not issues that were raised when the opportunity to make oral representations arose at the Tribunal hearing. The Applicant had also previously claimed that he did not wish to be engaged in fighting former colleagues, but he did not mention this at the hearing, nor did he make an express objection to the possibility that the war involved NK Armenians being victims. The essence of the Applicant's objections is that he did not wish to risk his life for a purpose that did not benefit ethnic Armenians and he did not wish to spend further time in military service as he had already served two years. While the Tribunal sympathises with those motives, they do not disclose a genuinely held conscientious objection to the war over NK. The Applicant did not express objections to killing other people in war situations, subject to the inference that they were not Armenians.
GAUDRON J: Well, that is in conflict, though, with his written claim. Is the written claim rejected? He says he is opposed to all forms of military service now - he distinguishes between the situation when the Soviet Union was - and he says the war is immoral. This is at 28, 29 - - -
MR TRACEY: Your Honour, that was not accepted. Your Honour will recall the passage I read at the top of page 135, where there is an express finding that he:
does not have an absolute objection to military service. He stated that he would fight and kill Turks, Azeris or anybody else that threatened Armenians -
so, there certainly does seem to have been differential emphases on issues at various stages. But, your Honour, they are the findings of the Tribunal.
Can I just complete my answer to your Honour Justice Kirby. None of that, none of that, would assist the Tribunal in coming to a view as to the existence of a particular social group that might embrace all draft evaders in Armenia. It is that to which Justice Emmett is referring. Inferentially, Justice Nicholson at first instance seems to think that, because he says that the Tribunal should have tried to make a finding if it could but, implicitly, it seemed to be accepting that on the evidence, it may not be able to. They are the factual and legal background to the submissions that we now make.
We make the general submission in each case that the Federal Court unfairly subjected the Tribunal's reasons to analysis that was indeed over zealous in pursuit of error, contrary to this Court's decision in Wu, and that it paid inadequate regard to the RRT's role as the finder of fact. The review in each case was justified on the ground provided in 476(1)(a) and the procedure that was not observed, or said not to have been observed, was the procedure mandated by section 430(1). We say it is not, of course, a procedure for relevant purposes. Our two principal contentions are these, that, firstly, a failure by the Tribunal to comply with 430(1) is not a ground comprehended by section 476(1)(a) or any of the other grounds for that matter, in 476(1), and the second contention is that 430(1) does not impose on the Tribunal an obligation to address, consider and make findings, as opposed to setting out its findings on material questions of fact.
In the course of argument, as the Court will appreciate, I have dealt with a number of those issues and I will endeavour not to be repetitive as I develop the two principal submissions. Firstly, as to the submission that 430 does not prescribe a procedure of the kind with which 476(1)(a) deals, the first thing that is to be noted, in our submission, about the wording of 476(1)(a) is that it refers to "procedures.....to be observed in.....the making of the decision" which it is sought to impugn.
GLEESON CJ: No, not in "the making", "in connection with the making".
MR TRACEY: Your Honour is perfectly correct, "in connection with the making of the decision", and, plainly, the provision of reasons must
post-date the making of a decision. The question is whether the words "in connection with" are broad enough to render or to complete the nexus between the reaching of a decision and the provision of the reasons for that decision. We submit that in the context of this legislation, that is not the case. The Court will note that section 430 appears in a separate division, Division 5 of Part 7, which is headed "Decisions of Refugee Review Tribunal" and then the obligation is said to be an obligation to record its decisions and to notify the parties.
Now, that is in distinction to Division 4 which refers to the conduct of the review, covers sections 423 to 429, which deal with the way the Tribunal is to go about its task of decision making. Now, we submit that that is the first indication, that 476(1)(a) is addressing what goes before, leading up to the decision, not what occurs afterwards, but that is reinforced by looking at the other provisions in Division 5. If the Court goes, for example, to 430(3), it will be noted that there is there a requirement that once the written statement has been prepared, the Tribunal must send documents back to the Secretary and "give the Secretary a copy of any other document" that had come into "evidence or material on which the findings of fact were based".
If the construction that the court has given to 430(1) is right, namely as a procedure in connection with the making of a decision that provides a ground for judicial review such that a decision could be set aside, then the same must be true of subsection (3). We submit that it would be absurd if a decision of the Tribunal were to be set aside under 476(1)(a) by reason of a failure of the Tribunal's registry to do what subsection (3) requires of it.
GLEESON CJ: I am not strongly convinced by that proposition, but there are two questions: the construction of section 430 and the construction of section 476. The consequence of a conclusion that there has been a failure to comply with the procedures referred to in 476(1)(a) is a setting aside of the decision, is that right?
MR TRACEY: Yes, your Honour.
GLEESON CJ: Take the most blatant example of a failure to comply with section 430 - in other words, an example that does not raise any problem of construction of section 430. Suppose the Tribunal said, "I have what I regard as very good reasons for my decision but, because I think that to publish them would offend somebody's feelings, I don't intend to make them public, so I'm not going to tell you what the reasons for my decision were" - a plain breach of section 430. Is the consequence of that setting aside the decision?
MR TRACEY: Your Honour, we submit that that is not the appropriate remedy.
HAYNE J: But is it any of the remedies in 481, because 481 gives a range of remedies?
MR TRACEY: Yes, it does, and it could be a mandatory order under 481(1)(d).
HAYNE J: Moreover, 481 is a discretionary provision, is it not?
MR TRACEY: Yes.
HAYNE J: So to say that breach of 430 is contended to lead to setting aside of the decision is to slide over the discretion which 481 would require to be exercised, is it not?
MR TRACEY: Your Honour, that was a view that commended itself to the majority of the Federal Court in Singh. We submit, with respect, that that cannot be determinative of the construction of 476(1)(a) and in - - -
HAYNE J: I am not suggesting it is, but I am suggesting that the notion that breach of 430 inevitably leads to setting aside is likewise flawed.
MR TRACEY: Well, it is not inevitable, your Honour, no, but it opens the door to such an order. We submit that when one looks at this legislation as a whole, that there would be no occasion to open that door simply by reason of a failure to comply with 430(1) if that has occurred, that there are other appropriate remedies because, again, what is being reviewed is the decision, not the reasons for it, and there is no reason to set aside the decision or to do any of the other things that 481 refers to simply because there has been non-compliance with 430(1) or, for that matter, 430(3).
KIRBY J: But, leave aside the exclusions from jurisdiction, surely if a major plank of a party's case has been ignored reasons are not so disembodied from decision that you can then say, "Well, we will just ignore that". I mean, it may be that it is not in every case that you would and your right to say that the focus is on the decision, but if the reasons reveal some very serious flaw in the argumentation or the examination of the case for the applicant, then if there is a discretion it would seem a proper matter, in at least some circumstances, to say, "Well, this is so flawed you have got to go back and do it again".
MR TRACEY: Yes, but if there is a ground that allows you to do that. Now, the irrelevant consideration ground or a failure to have regard to relevant consideration ground is not available.
KIRBY J: In the Federal Court.
MR TRACEY: In the Federal Court.
HAYNE J: And is the consequence of that that the proper order for the Federal Court is to affirm the decision?
MR TRACEY: The appropriate order in both of these cases would have been to affirm the decision, yes, your Honour.
HAYNE J: So the case of the two-ground refugee that I earlier described you say should be resolved by the Federal Court making an order affirming the decision?
MR TRACEY: But only in the sense that affirmation was referred to by this Court in Abebe, namely, dismissing the application, not saying it was right.
GLEESON CJ: But if the argument against you on the facts in relation to Israelian is correct, Israelian is the case referred to in Justice Hayne's example, is it not, a two-ground application, political views, membership of a social group, it dealt with one, not with the other?
MR TRACEY: Well, your Honour, we say that the Tribunal did deal with them both.
GLEESON CJ: I know, but that is a different argument.
MR TRACEY: But I accept that if your Honour posits an example to the contrary then, yes, it raises the example but it also allows us to respond in the way that we did when the general question was asked by his Honour by saying, "When you read these reasons as a whole, the issue that the Tribunal was grappling with" - and, indeed, as the applicant's representative was grappling with, there was a common substratum of fact. The problem, as the applicant's legal adviser frankly stated at 88 in the appeal book, was:
perhaps the most difficult aspect of Mr Israelian's review application is determining under which Convention ground his claim to refugee status might be deemed to fit.
GLEESON CJ: But that goes to the merits, not to the construction of the legislation.
MR TRACEY: Well, yes, but when the Tribunal then has to grapple with that same issue and it comes to the view that no Convention ground is disclosed on those facts, then that finding must embrace the two that were advanced.
GLEESON CJ: It may be easier to understand your argument that the way section 430 has been construed enables a horse and buggy to be driven through the scheme of the legislation limiting the review powers of the Federal Court, but it is not quite so evident to me, at least at the moment, that if section 430 were given the construction for which you contend then to say non-compliance with section 430 is a failure to follow a procedure interferes in any significant respect with the scheme of the Act at all.
MR TRACEY: Your Honour, we would have to say that the consequences would be far less severe, yes, but we, having said that, of course make both submissions, but, your Honour, yes, it would cause far less, what we would say, avoidance of what was the true intention of this legislation if 430 was read in the way for which we contend, even if it still left the door open under 476(1)(a). On the subject of that legislative intention, can I simply refer the Court to the secondary materials, the explanatory memorandum. I do not want to read it to the Court, but the relevant parts are set out in the judgment of the majority in Xu, and at 95 FCR 433 to 435 and we have the original here from which their Honours quoted, and if that would assist we can provide the Court - my friend, Mr Keon-Cohen, indicates that the same material is part of the attachments that have been submitted on behalf of his client, so the Court now has it twice.
Now, your Honours, a second basis for saying that 430 is not to be regarded as a relevant procedure hinges on the purpose served by 430 and the Court has already heard our submissions on that in response to questions and in broad terms what we have submitted is that 430 is intended to expose error, not create a ground of error, and that if error is exposed then, if relevant provisions are available under 476(1), then they may be availed of; if not then that is an end of the matter as far as judicial review in the Federal Court is concerned.
We have referred the Court to the decision of Sir Gerard Brennan in Repatriation Commission v O'Brien. Can I simply add to that reference an analysis to "like effect" by Justice Finkelstein in the Federal Court in Comcare v Lees, [1997] FCA 1415; (1997) 151 ALR 647 and the relevant passages are at 655 to 659. The contrary line of authority as to the construction of 476(1)(a) which holds that a failure to comply with provisions such as 476(1)(a) gives rise to "a judicially-reviewable decision" and as part of that process the decision can be set aside, is, in our submission, built on some very shaky foundations. It starts with Dornan v Riordan and is developed in the Our Town Case and came into Migration Act jurisprudence in the Muralidharan Case. Those decisions are analysed in detail in the majority judgment in Xu 95 FCR 427 to 429 and at 435 and in Justice Kiefel's dissenting judgment in Singh at 98 FCR 491.
Their Honours, in those passages, highlight the fact that these provisions operate in different statutory contexts, and also highlight the fact that the decisions on which the more recent jurisprudence has been based, asserted, rather than justified in any reasoned way, why it should be possible to attack a decision on the basis that the reasons proffered for it did not comply with statutory requirements.
GLEESON CJ: Did the majority in Singh favour the construction of section 430 that you contend for? What prompted my question is paragraph 2 on the headnote on page 470.
MR TRACEY: Your Honour, there is some ambiguity about it. Let me take the Court immediately to paragraph 53 on page 482, where the majority seemed to construe it the way we do, but the outcome is not consistent with that. In paragraph 53 they say:
The view has been consistently taken in the past that where, for example, the well-founded fear of persecution is said to derive from past experiences, s 430(1)(c) obliges the RRT to set out its findings in relation to those claims because of their relevance to the ultimate question.
That suggests to us that the Court did construe 430 in the way for which we contend. It then went on to focus on the question of materiality - - -
GLEESON CJ: If you look at the first sentence on page 478, they say:
What is required under s 430(1)(b) is a specification of the actual reasons, good or bad, for the decision.
MR TRACEY: Yes, your Honour.
HAYNE J: How does that sit with what is said at paragraph 55 on 482 in the second sentence? Is there a tension there, or are those propositions resolvable?
MR TRACEY: Well, no, I think not, because it says:
Failure by a Tribunal to set out its findings.....would involve a contravention of s 430(1)(c) -
We do not have any difficulty with that.
McHUGH J: What about paragraph 36 on 479? The first two sentences seem to indicate that you regard 430 as an obligation to set out what should be set out.
KIRBY J: I thought that was the whole point of marshalling a five-bench court: to resolve the difference that had arisen in the Federal Court.
MR TRACEY: Yes, your Honour, but in the end it resolved the matter in a different way because it determined what it thought "materiality" meant in 430(1)(c) and said that, in fact, the Tribunal in that case had met the obligation imposed by 430(1)(c) and the case went off on that basis.
KIRBY J: But on your theory - your theory being the good or bad, adequate or inadequate theory - that was the answer to it, as Justice Kiefel proposed.
MR TRACEY: Yes.
KIRBY J: I do not think we help our consideration of the matter by wishing away what the majority said in Singh.
McHUGH J: But at paragraph 57 they also say:
Thus whilst materiality will not necessarily depend upon how an applicant chooses to present the issues, we do not agree that the only material facts are those on which the Tribunal is legally required to make findings.....A fact is material if the decision in the practical circumstances of the particular case turns upon whether that fact exists.
It seems to be contrary to your view.
MR TRACEY: Yes. Your Honour, at 60 they say:
We agree with the primary judge's conclusion that s 430(1)(c) is directed not to matters the RRT considers to be material but to matters that are objectively material - - -
McHUGH J: Yes, well, that is conclusive, is it not?
MR TRACEY: Yes, yes.
GLEESON CJ: That means we will decide what is material.
MR TRACEY: Yes, yes, that is right, your Honour.
KIRBY J: I suppose the other way to put it is that the Parliament has said that if it is material, you must set out your findings on it, and in most cases you will do that, but in some cases where there is a dispute, it will be for the reviewing body, ultimately this Court.
MR TRACEY: The tension, I think, is between the sort of passages we have just been referring to and the earlier ones where there is the stress on its findings and reasons good or bad, which do tend to support a construction of the kind for which we contend and for which Justice Kiefel considered appropriate.
HAYNE J: How can objective materiality be assessed, except against an understanding of relevant and irrelevant considerations?
MR TRACEY: Precisely, your Honour.
HAYNE J: Precisely, that is the question, Mr Tracey. What is the answer?
MR TRACEY: The answer is that the door is not thereby opened under 476(1)(a) because although 476(3) is in terms - and that is the exclusion of relevant/irrelevant considerations as a ground - is referred in terms to only paragraph (1)(d) of 476. We submit that that indicates that the draftsman plainly considered that failure to have regard to relevant considerations could not be slipped in under one of the other grounds. Otherwise, there would have been no point in putting the exclusion in at all and then confining it to (1)(d), and if that is right, then the judgment as to whether the Tribunal has failed to have regard to a relevant consideration, consideration that it is bound to have regard to, cannot lead to a finding under 476(1)(a).
HAYNE J: But do I understand your submission then to be that the considerations of the kind we have just debated tend in favour of the view that the reasons that are to be set out and the findings that are to be set out are whatever may happen to have been the reasons and findings of the Tribunal, whether or not sufficient.
MR TRACEY: Yes, your Honour, yes. Your Honour, can I just refer you as to that linkage between 476(3), the relevant/irrelevant considerations exclusion and the other grounds, to a decision of Justice Hill in a case called Halmi v The Minister [1999] FCA 1438; 95 FCR 1 and at page 13 in paragraph 55 his Honour makes, effectively, the point that we have just sought to make in response to your Honour's question, that one cannot avoid the relevant/irrelevant considerations exclusion by seeking to draw the matter under one of the other grounds in 476(1).
GUMMOW J: Well, Mr Tracey, provisions like 430 are in a number of Commonwealth Acts, as you well know, namely, in the AAT Act. Is this particular method of construction which attracted majority support in the Federal Court under 430, does it have any progenitor in the many decisions on these other provisions?
MR TRACEY: Yes, your Honour. The starting point is a decision in Dornan v Riordan which was a decision of a statutory tribunal - I think it was the Pharmacy Review Tribunal - and the Riordan respondent was a member of the Industrial Relations - - -
GUMMOW J: We tend to be obsessed with the Migration Act but if this construction of it is correct, is of enormous importance - - -
MR TRACEY: Indeed, it is, your Honour.
GUMMOW J: Can some list be prepared of these other sections, not now, but conveniently?
MR TRACEY: Yes, certainly, your Honour. The Full Court in Dornan v Riordan was confronted with a situation that used to occur - I must say I have not encountered it very often recently in the industrial jurisdiction - where there was a tendency to do exactly what I submitted by way of example earlier, of setting out the claims on each side and then just setting out the conclusion with no intervening reasons, and that methodology was - - -
HAYNE J: Well, the reasons would be encompassed by the word "therefore".
MR TRACEY: In Dornan v Riordan that - - -
GUMMOW J: Where does that precisely appear in Dornan v Riordan?
MR TRACEY: I am sorry?
GUMMOW J: Where does this form of decision making appear in the report of Dornan v Riordan?
MR TRACEY: Only in the Tribunal below that was being reviewed, your Honours.
GUMMOW J: Yes, of course.
MR TRACEY: Not in the Federal Court. That was rightly criticised by the Federal Court, but then the question became, "Well, what can we do about it?".
GLEESON CJ: It is on the bottom of page 568:
The decisions reached are the result of a considered judgment of the available material, all of which has been given appropriate weight and used with due caution.
HAYNE J: Taking account of all the cases that bind me, including Donoghue v Stevenson and those that had followed it.
MR TRACEY: Pick a figure, any figure. The question became, "What should we do about it?".
GUMMOW J: You would agree that that would not comply with 430?
MR TRACEY: Indeed, your Honour.
GUMMOW J: So this is an example of cases you are talking about?
MR TRACEY: It is a very good example of non-compliance. If your Honours would go to the top of 573 - - -
GUMMOW J: They set it aside.
MR TRACEY: - - - the court says:
Notwithstanding an observation to the contrary by Brennan J in.....O'Brien, the law appears to us to be that a substantial failure to state reasons for a decision, in the circumstance that a statement of reasons is a requirement of the exercise under the statute of the decision-making power, constitutes an error of law.
There is then reference to Re Poyser and Mills' Arbitration and to other decisions of the Federal Court:
To the same effect is the decision of the Court of Appeal of New South Wales in Pettit v Dunkley, in which it was held that the failure of the trial judge to give reasons for his decision constituted an error of law because such failure made it impossible for the appellate court to determine whether or not the verdict was based on an error of law.
Therefore, the court held that the error here was a substantial breach of the duty to state reasons. It was an error of law and it should be set aside.
GUMMOW J: This is under the AD(JR) Act.
MR TRACEY: Yes, it is, your Honour. We submit that the reasoning is, with respect, not persuasive.
GUMMOW J: But what should have happened under the AD(JR) Act, if anything?
MR TRACEY: What should have happened under the AD(JR) Act was an order under section 13(7) to rectify the deficiency, because the reasons that were provided did not comply with section 13(1).
GUMMOW J: Has that been the remedy in any other of these cases? It has, has it not?
MR TRACEY: Yes. Orders have been made under 13(7), your Honour. I cannot tell your Honour how many but there certainly have been orders and, indeed, I can also tell your Honour that the equivalent provision in the Victorian Administrative Law Act has been used by the Supreme Court on a number of occasions to order the provision of reasons.
HAYNE J: And reasons in the form considered in Dornan v Riordan would not, on your submission, as I understand them, form the basis for an inference of the kind Justice Brennan was referring to in O'Brien as an inference that there had been a taking account of the irrelevant considerations or failure to take account of relevant considerations?
MR TRACEY: It may well give rise to that inference, your Honour.
HAYNE J: His Honour seems to consider the failure to give adequate reasons, if it warranted an inference of that kind, would engage a power to set it aside.
MR TRACEY: Yes, but not on the ground of the inadequacy of the reasons; on the ground that the inference that was drawn from them would support the ground of failure to have regard to relevant consideration.
HAYNE J: Failure to make decision according to law?
McHUGH J: You would call in aid Australian Stevedoring Industry Board 88 CLR if there was something about the actual decision itself if it is suggested it might be error and then you have these inadequate reasons that might permit you to draw the inference that something that their Honours missed in the reasoning process.
MR TRACEY: Yes. I think Lord Denning went so far, your Honour, at one stage as to say that if an administrator did not give adequate reasons, then we will assume he did not have any.
McHUGH J: Yes.
MR TRACEY: Now, that is an extreme position, but - - -
McHUGH J: Well there are some statements in Padfield v Minister for Agriculture, which goes pretty much along those lines as well.
GUMMOW J: Now, with Dornan v Riordan though, section 13 of the Administrative Decisions (Judicial Review) Act would have required a distinct application, would it not?
MR TRACEY: Yes, you have to ask for the reasons. I assume they were asked for here rather than proferred - - -
GUMMOW J: You put aside what you have been given, yes.
MR TRACEY: - - - and it is not just if they are not given, it is if they are not adequate then you have got your remedy under section 13(7) and it seems to us that that was the appropriate response in Dornan v Riordan, not finding error of law in striking down the decision. Could I just refer you in that regard to an analysis of Dornan v Riordan and these other cases. I referred the Court earlier to the judgment of Justice Finkelstein in Comcare v Lees [1997] FCA 1415; 151 ALR 647, and the Court will see a very carefully reasoned analysis that we respectfully adopt, as to how the Court has fallen into error in the approach that can be traced back to Dornan v Riordan.
GLEESON CJ: Is that a convenient time?
MR TRACEY: Yes it is, your Honour, Mr Tracey?
GLEESON CJ: We will adjourn until 2.15 pm.
AT 12.44 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.17 PM:
GLEESON CJ: Yes, Mr Tracey.
MR TRACEY: If the Court pleases, just before lunch, more in hope than with conviction, we were drawing attention to certain passages in the majority judgment in Singh which, on one view of it, might have been said to assist our construction of section 430(1). But, in the end, I think we were led to agree with his Honour Justice McHugh that what they say in paragraph 60 really makes it plain that they take a view contrary to the one for which we contended. There is another paragraph that we think probably tends in the same direction, and that is 48, where their Honours say:
The generally accepted view in this Court has been that the RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make. It must make findings on questions of fact that are central to the case raised by the material and evidence before it. In this respect, s 430 sets a standard of decision-making the RRT is required to observe.
If there were any doubt about it, could I take the Court to a recent decision of another Full Court. It is on our list. It is a case by the name of Minister for Immigration and Multicultural Affairs v Zitoni [2000] FCA 1225. Your Honours, this was an appeal from a decision of a single judge whose judgment had been rendered prior to Singh being handed down but it was nonetheless upheld. The alleged errors that were said to have occurred were that the Tribunal had failed to make findings on three matters and they are set out in paragraph 18. The trial judge had found three matters:
whether Mr Zitoni's farm and houses -
in Algeria -
had been confiscated after he left the farm and whether that confiscation occurred for a Convention reason.....whether Mr Zitoni's passport had been seized by Algerian authorities in Indonesia -
while he was on his way to Australia, and, thirdly:
whether those authorities had knowledge of Mr Zitoni's attempt to reach Australia by boat via Christmas Island, of his involvement in the sit-in protest at the United Nations compound in Jakarta.
Now, it was said that because the Tribunal had not made findings about those matters of fact it had failed to comply with its obligations under 430(1) and that was a complaint with which the Full Court was disposed to agree. The Court will see that at paragraph 22 their Honours say that in Naing, an earlier decision of Justice Hill to which the trial judge had referred, Justice Hill had said:
"a matter will be material, and the Tribunal thereby required to make findings with respect to it, where the matter is one that could -
and we stress "could" -
affect the outcome of the review. Where a finding one way or the other could have no effect on the outcome, a fortiori, the matter could not be material."
Then there is the quoted passage from the majority judgment in Singh that I read to the Court a little while ago that comes out of paragraph 48, and that is treated as being the ratio, relevantly. Then the next paragraph, at 24, they record the observation of the majority in Singh that:
"A fact is material if the decision in the practical circumstances of the particular case turns upon whether that fact exists."
Then this significant observation in 25:
It is not suggested that there is any significant difference between what is said in Singh on the one hand and what was said by Hill J in Naing -
So that Singh is interpreted as meaning that the Tribunal under 430(1) has an obligation to make findings of fact about anything that could have some effect on the outcome. With respect, we submit that is wrong, but it is clearly the understanding of the Federal Court as to what Singh stands for.
CALLINAN J: Mr Tracey, can I ask you a question? In orthodox legal proceedings it is regarded as an error of law, is it not, for a judge to fail to state the facts and the law necessary for his decision?
MR TRACEY: Yes, your Honour.
CALLINAN J: I think that is well established and it is an error of law. Section 476(1)(e) of the Migration Act states as a reviewable ground, "that the decision involved an error of law", and then goes on to characterise particular types of errors of law but not one of the kind to which I just referred.
MR TRACEY: That is so, your Honour.
CALLINAN J: Of course, the rationale to the rule in orthodox legal proceedings, or part of it, is that it is necessary that an appellate court be able to ascertain precisely what the judge decided and how the judge went about deciding it. Now, that rationale, of itself, will not exist under this Act when there is not a general right of appeal and, indeed, the right of review is itself a limited one. Is that so?
MR TRACEY: Yes.
CALLINAN J: I am putting that proposition to you because I would put it to Mr Basten also - - -
MR TRACEY: Yes, that is, with respect, the position as we would contend.
CALLINAN J: That proposition that I just mentioned about error of law, it is stated in a lot of places, but it is stated by Mr Justice Asprey in Pettitt v Dunkley (1971) 1 NSWLR 376 at page 382.
GLEESON CJ: I noticed it in the case of the Court of Appeal of New South Wales considering and applying Pettitt v Dunkley, Soulemezis. Mr Justice Mahoney said in (1987) 10 NSWLR at 271:
the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact - - -
MR TRACEY: Yes, that is so, your Honour. The test that is the one that has been developed in the cases to which his Honour Justice Callinan referred, as we understand it, is that there has to be a sufficient exposition to enable an appeal court to understand how the judge got to the conclusion that he or she got to. It is not an obligation to expose the entirety of the fact finding or the entirety of the thought processes that were involved in getting there.
KIRBY J: Of course, Soulemezis was dealing with the obligation of the judge at common law. It was not dealing with a Commonwealth template.
MR TRACEY: No, that is so. That said, we draw attention to an observation of Justice Finkelstein in Comcare v Lees in that passage that that we referred the Court to earlier[1997] FCA 1415; , 151 ALR 647, where his Honour refers to those authorities and specifically quotes Pettitt, and then continued:
There are two reasons why these authorities are of limited assistance in determining whether the breach of a statutory obligation to give reasons amounts to an error of law. The first is that unless the failure to give adequate reasons is an appellable error of law no other remedy would be available to a person who is adversely affected by the order of the court. A writ of mandamus can not issue against a superior court of record of a State. The second and more important reason is that these cases are not concerned with the construction of a statute that imposes an obligation to give reasons.
GUMMOW J: Now, Pettitt v Dunkley and Soulemezis are discussed in Fleming in this Court in 197 CLR 250 at 260, I think not in any way that would worry you.
MR TRACEY: Thank you, your Honour.
GUMMOW J: I think not in any way that would worry you.
MR TRACEY: If the Court pleases, we submit that the jurisprudence that has developed in the Federal Court around section 430 is fundamentally flawed, because it ignores some basic precepts. The first of them is that there is a difference between an obligation to find facts in the process of dealing with a relevant consideration and that relevant consideration itself. This was a matter to which your Honour Justice McHugh adverted in Ibrahim and we submit, with respect, the correct doctrine is there stated between paragraphs 81 and 87 in your Honour's reasons in that case, and your Honour there said that the Tribunal was not bound to find a particular fact going to motivation and it would only have erred relevantly if it had directed itself contrary to an appropriate legal precept and we submit that that is the proper approach.
We would also refer the Court to the dissenting judgment of Justice Kiefel in Singh at page 493 and at paragraph 100 in that regard. So that we submit that section 430 does not impose a free-standing obligation and that the obligation is not to find facts, but to expose facts that have been found and that a failure to do so, whilst it might allow inferences to be drawn or errors to be detected, does not of itself warrant the setting aside or otherwise disturbing the decision.
Just applying those principles to the immediate cases, firstly in so far as Yusuf is concerned, the Tribunal in Yusuf, we submit, directed itself correctly as a matter of law and that it then went on to deal with all the relevant factual material and it did not err in the course of that exercise in the way that the court determined. In particular, it adverted to the incident at the house. It did not make a finding as to whether or not that particular incident was capable of giving rise to a well-founded fear of persecution. It did not need to because it had found that the Hawiye were not targeting the clan of which the applicant was a member and the incident in the house was carried out by Hawiye people, and so it was covered by the finding that, whatever the reasons for the attacks on the applicant, it was not by reason of her being a member of a different clan and therefore there was no relevant Convention reason identified. In the context, that was as much as the Tribunal needed to do and it did not err.
In Israelian the position was that the issues of fact were that Mr Israelian had evaded the draft by coming to Australia and not answering his draft notice; that he was not a conscientious objector, he had done two years in the army and he did not want to do any more, in particular, he did not want to fight in what he thought was a civil war; that if he did not do so, there was a chance that he might be subjected to a criminal penalty for not having done so - but it was also possible that nothing would be done because his brother, who was in a similar position, had not been prosecuted. Against those facts, the only issues were whether you could bring them within any of the Convention grounds.
The difficulty in doing so, as the Court has seen, was acknowledged by his legal representative in written submissions to the Tribunal, and two possibilities were suggested. When it came to the Tribunal, the Tribunal dealt thoroughly with all the facts that had been urged and then found, comprehensively, that any persecutory conduct that might befall Mr Israelian upon his return to Armenia would not be for any Convention reason - the two raised or any others.
Again, in context, we submit that that was sufficient and there simply was no error of failure to find relevant facts, but that, even if that is not right, as the trial judge suggested and Justice Emmett made clear, there could not have been any findings on the facts as were before the Tribunal on the matters concerned. In those circumstances, we submit that there was no error of the kind that 430 is directed to and, in any event, of course, that a remedy did not lie on the ground provided for in 476(1)(a).
McHUGH J: Mr Tracey, there must be quite a number of decisions of the Tribunal which have been set aside by the Federal Court, either on the 430 ground or on the 476 ground. If we were to say those decisions were wrong, what would be the effect of those cases? Would they just proceed back to be re-heard?
MR TRACEY: If the matters have been sent back and already dealt with by the Tribunal, then one would imagine that nothing that the Court would say in this case would have any practical impact. However, if there were cases, and Zitoni is one of them, where the Minister has made the formal submission that Singh was wrongly decided, then there may be practical consequences of the Minister either seeking a remedy in this Court by way of an appeal, but otherwise, I do not think there would be a practical consequence.
In that context, can I just indicate before lunch your Honour Justice Gummow asked for a comprehensive list of provisions that might be affected by a ruling in this matter. We have asked that a complete scan be done electronically of the Commonwealth legislation and we hope to be in a position to provide that to Court if not today certainly tomorrow.
GUMMOW J: Yes, thank you.
MR TRACEY: The matters that remain for me to deal with on the appeal are raised by the notice of contention and, as we understand it, what is said is that although these matters were not agitated below that the same outcomes could have been produced of benefit to the applicants by operation of the grounds provided for in 476(1)(b), (c), (d) and possibly (e). Can I just make these preliminary observations in relation to those provisions and reserve our right to give a more thorough response when we have heard the arguments developed?
As to (b), it speaks of the person who purported to make the decision did not have jurisdiction to make the decision. In our respectful submission, there can be no issue on the facts of either of these cases that the Tribunal did not have jurisdiction in the necessary sense to embark upon the task that it performed and that therefore (b) cannot be available. As to (c):
decision was not authorised by this Act or the regulations -
The decision in each case was to affirm the decision under review and that was a decision of a kind specifically contemplated by the legislation. We submit that that cannot provide any assistance to the applicant. As to (d):
that the decision was an improper exercise of the power conferred by this Act or the regulations -
and, of course, that has got to be read subject to subsection (3)(e) which specifically excludes from (1)(d) a failure to have regard to relevant considerations. Then as to (e) - (e) has been referred to in argument on a number of occasions. It is not a bland error of law ground. It is, as the Court has noted, only one of two classes of error of law:
an error involving an incorrect interpretation of the applicable law -
there is no suggestion of that in either of these cases -
or an incorrect application of the law to the facts as found -
which plainly concedes to the Tribunal the primary duty of fact finding and it then becomes a question of whether on the facts which it has in fact found there is an error in the way that the law has been applied. Now, we submit that on no view of the way the Tribunal has proceeded in either of these matters can it be said that one of those two classes of limited error of law have been established.
If the Court pleases, they are the submissions on the appeals. Subject to the leave of the Court, we would reserve our right to say that which is necessary on the section 75 point after we have heard our friends' submissions. If the Court pleases.
GLEESON CJ: Yes, thank you, Mr Tracey. Yes, Mr Basten.
MR BASTEN: If the Court pleases. Might I take your Honours to the appeal book in the Yusuf matter and invite your Honours to turn to page 152? The key paragraph in the judgment of the Full Court appears at the end of the discussion, and my learned friend took your Honours to it, paragraph 36:
For the reasons his Honour gives, there was a failure to make a finding on what was plainly a material question of fact.
That is the proposition which we seek to uphold as a reviewable error in the present proceedings. The reason that that is a reviewable error may or may not be determined by simple reference to section 430(1)(c) of the Migration Act and what we suggest in our written submissions is that an obligation to make findings on all material questions of fact may be derived from a combination of section 430 with section 414(1) and 415(1).
GLEESON CJ: What is the level of particularity or generality at which you identify a question of fact?
MR BASTEN: The level will depend upon a number of factors, your Honour. The proposition that I want to put is that the Court must ultimately give proper consideration to the application or claim which has been made - the application for a visa and the claims on which that application may be based.
GLEESON CJ: I am not suggesting that this is correct but one possible view is that in a case such as the present, a relevant question of fact was, is there a well-founded fear of persecution?
MR BASTEN: Yes. We would say that that is a level of generality beyond that which is required, your Honour. I think that the majority in Singh, using some of the terminology of subsection 476(4), may be deriving part of their rationale from the existence of the no evidence ground and, in particular, paragraph (4)(b), which talks about proof that a particular fact did not exist. Now, it is clear from 476(4)(a) that that is not a ground based upon the absence of the ultimate fact. A particular fact must be at a level below that.
The other aspect of the proposition that I make, if I may just develop this in a moment, is that the approach adopted by this Court and, particularly, in your Honour the Chief Justice and Justice McHugh's judgment in Abebe, provides in innumerable cases, basis for a proposition that there will be findings of fact which the Tribunal is bound to make. Now, the level of particularity may require some further analysis, and I will come to that. I think the proposition in Ibrahim to which my learned friend referred, again in Justice McHugh's judgment, was a negative proposition but the terminology that his Honour used was a fact so decisive or central to the claim that it would be an error on the part of the Tribunal not to make a finding about it.
GLEESON CJ: Suppose in the present case, that is the case of Yusuf, the more particular fact that was regarded as material is whether or not - I forget the names of the clans now - whether or not clan A were persecuting the members of clan B, not whether or not, on a particular day, the day the husband ran away, that persecution was being carried forward, as it were.
MR BASTEN: May I answer that briefly without taking your Honours to the material, although I will come back to that. We make two propositions in that regard: the first is that a reading of the Tribunal's decision makes it clear that it treated the individual incidents, to which the applicant referred in her statements, as matters of importance in reaching its conclusion; and secondly, that it treated the general statements in the Department of Foreign Affairs and Trade cable as important in reaching its decision.
Now, we would say, given the approach taken by the Tribunal, together with the claims that the applicant made, it was necessary for the Tribunal to deal with each basis upon which she put her claim. One significant element, which was different in a material respect, was not dealt with. We would say that was a sufficiently central matter of fact to place the Tribunal under an obligation to give it proper realistic and genuine consideration.
KIRBY J: Why was it not simply an instance of the suggested fear from a particular clan? In other words, simply one of a number of instances of the genus with which the Tribunal actually dealt.
MR BASTEN: In order to answer that I need to take your Honours to the material to make good the proposition I was putting in a very broad sense.
McHUGH J: In making your submissions, you have to be very careful to distinguish between two situations, do you not? One, what the Tribunal was required to do independently of the existence of 430 and what 430 required it to do? My discussion in Ibrahim was not directed to 430?
MR BASTEN: No, I appreciate that.
McHUGH J: Yes.
MR BASTEN: May I say this at the outset of our argument: section 430 is undoubtedly a significant section in the scheme of things. It is significant because the material which it requires be set out in the statement prepared by the Tribunal includes in paragraph (c) the findings to which reference has been made on any material questions of fact. The proposition which I wanted to put to the Court is that ultimately what the Tribunal is considering is the application which has been made for a visa. If one traces through the statutory scheme, it must mean that the Tribunal makes findings, or considers and makes findings, on what may be described as material questions of fact in an objective sense, but that is all that we derive from section 430.
There is a slightly arid debate in one sense - perhaps I am alone in thinking that - which appears through some of the Full Court decisions and the Federal Court decisions about whether the error is a breach of the obligation set out in section 430, which requires the preparation of "a written statement" which "sets out the findings". We concede that if the Tribunal did not make a finding, it has not made an error in contravention of section 430 in its express terms by failing to set it out.
McHUGH J: Well, that is an important concession, and it does undermine, it seems to me, the principal reasoning of all those Full Court decisions.
MR BASTEN: I think not, your Honour, in this sense, that I think there is a level of ambiguity in some of the propositions, but in the passage which your Honours have just been looking at in Singh, the obligation - and it is the dual obligation your Honour the Chief Justice noted this morning - which they derived from section 430 is an obligation to make and set out findings on material questions of fact.
GLEESON CJ: I realise you cannot, but suppose you could actually interrogate the decision maker and you said to the decision maker in this case, "Why didn't you say anything about that incident when the husband ran away?", and the answer was, "I forgot about it". Would that answer disclose a failure to comply with section 430?
MR BASTEN: In so far as section 430 is the basis for the obligation to make a finding, that limb of it, yes. The express limb of 430 which requires a finding to be set out, no.
GLEESON CJ: That seems contrary to the concession you just made.
MR BASTEN: I am sorry, your Honour?
GLEESON CJ: The first part of your answer to me seems contrary to the concession you made a moment ago.
MR BASTEN: No. What I was seeking to say - might I go back to Singh [2000] FCA 845; 98 FCR 469. The key passage is paragraph 48 at page 481. The majority says:
The generally accepted view in this Court has been that the RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make.
GLEESON CJ: The expression "objectively material" I take it means that the Federal Court regards as material?
MR BASTEN: Yes. In other words, if the Tribunal has said, "We don't think any of the applicant's claims are material to the question before us for no very good reason", then the court could consider whether or not that is a correct assessment of the claims against the statutory criteria provided for by section 36(2).
McHUGH J: But supposing it does not say anything at all; it just ignores a particular fact which you or I or the Federal Court might think was material. Is that a breach of 430?
MR BASTEN: Yes, it is a breach of the duty to make findings on all matters of material fact.
KIRBY J: I am a little worried by your answer to the Chief Justice because, as I conceive the section, at least on your theory of it, it is that the law, the Parliament, imposes a duty to make the findings of material fact. The Federal Court may find it and declare it and we may ultimately reverse or uphold that, but in the theory of the Act it is the Parliament that has required this and it is an objective legal obligation. It may sometimes be controversial as to its content and difficult to find exactly where its perimeters lie.
MR BASTEN: Yes, that is so.
GLEESON CJ: But a process of reasoning sets its own standards of materiality, does it not?
MR BASTEN: It may do.
GLEESON CJ: It may be a fallacious process of reasoning but a decision maker may pursue a line of reasoning leading to a conclusion which, taken in its own terms, treats a particular fact as immaterial. A reviewing authority, whether the Federal Court or this Court or anybody else, criticising that decision might see a fallacy in the process of reasoning and say the fact was material. Your submission, as I understand it, is that the materiality of a finding does not depend upon the process of reasoning adopted by the decision maker; it is a matter to be judged by whoever is reviewing the decision maker's efforts.
MR BASTEN: Yes, although it may not be irrelevant to that exercise to consider the process of reasoning. If one takes the facts of Abebe, for example, the complaint in that case in this Court was that the Tribunal had failed to make a finding about, I think it was the rape, that had occurred in detention, according to the claim. Well, that was not a material fact once the Tribunal had made the preliminary finding that she was never arrested. So that in that sense, what might otherwise have been a material fact became an irrelevance.
GLEESON CJ: Well, take the facts of Yusef. If you look at page 115, lines 24 and 25, the decision maker refers to the two occasions, said to be isolated occasions, on which the applicant encountered problems. Now, suppose the decision maker had added an extra sentence to the following effect: "I do not regard the occurrence that occurred on the occasion when the husband ran away as having any possible bearing that might lead me to a different conclusion in respect of those two incidents, so I do not take the trouble to make any particular findings about it."?
MR BASTEN: That would be a finding, we would say.
GLEESON CJ: Well, why would not, on the approach taken by the Full Court of the Federal Court, why could not the Full Court say, "Well, we disagree. We think, as a matter of fact, that it would have been very important to a decision as to whether clan A is persecuting clan B to look at the detail of what went on on that occasion. So we regard the fact as material and we note that there is no finding about it, so we say there has been a failure to comply with section 430."?
MR BASTEN: We would say that is impermissible, your Honour. There is a distinction between considering a claim which has been made and dismissing it, albeit on unconvincing grounds, and failing to consider it. That is the distinction that we seek to make. If the claim otherwise appears to be central to the application for the visa, then it must be considered. If the Tribunal had said what your Honour said, it would probably be unreviewable.
GAUDRON J: But Mr Basten, if you put your argument that way, you do not need to rely on 430 because what you are really saying is there was just a failure to consider the claim.
MR BASTEN: Yes.
GAUDRON J: That is a jurisdictional error, and maybe you cannot take it to the Federal Court, but that is the end of the matter.
MR BASTEN: Well, maybe we can take it to the Federal Court under other subparagraphs. Perhaps I should come back to that aspect of it.
McHUGH J: Before you do, could I ask for your assistance at some stage on this matter: in Durairajasingham, I am not sure whether I said it expressly, but I saw a distinction between (b) and (c). You have an obligation to set out your reasons and if one of your reasons was X and it was material in some way, then a failure to set it out would be a breach of (b). But it seems to me it is a different matter from saying that objectively you have to set out material findings of fact. Do you follow?
MR BASTEN: Yes. I accept that. I think your Honour did make that distinction. We would not have any difficulty with that proposition. In a sense - - -
McHUGH J: In some cases it may get you a long way to the position you seak to achieve.
MR BASTEN: Yes, that is so. Perhaps I might say this, and I am not sure whether this is part of what your Honour had in mind, but there is, perhaps, a danger in parsing the subsection too carefully and not treating it as a holistic statement of an obligation to provide reasons imposed on the Tribunal, which includes, but is not limited to, the particular element set out there. The very concept of reasons - - -
McHUGH J: But it is plain that the section requires the Tribunal to state its reasons and to set out the findings on any material questions of fact. Now, whatever reasons it had, it is obliged to set them out, and minds may differ as to whether it has fully set out its reasons if you knew what they were, but it has an obligation. But in these cases, the Full Court seems to have gone further in respect of (c) and says, "Well, you do not merely set out the facts. The Tribunal must do more than set out the facts it thinks are material, it must set out the material facts in some objective sense".
MR BASTEN: Yes.
McHUGH J: Now, that is where I have trouble, particularly having regard to the providence of 430 and I would like, at some stage, some submissions from you on section 13(1) of the AD(JR) Act because that is the source of 430 and I think it is very difficult to say that under section 13(1) of the AD(JR) Act there is an obligation to set out facts which you have not in fact found.
MR BASTEN: I think that was the point of my concession, your Honour. I have some difficulty with some of the propositions in the Federal Court judgments which seem to us not to be essential to the case that we seek to put. If the Tribunal did not make a finding of a material fact, leaving aside who decides that, then there may be a breach of 430 in the sense that 430 requires the Tribunal to make the finding but there is no breach of an obligation to set out a finding because you cannot be obliged to set out findings which you did not make. That may be a semantic quibble at one level, but if one - - -
McHUGH J: Well, I am not sure. I think much turns on the proposition of the term "make".
MR BASTEN: Yes.
McHUGH J: Now, you see 430 as implying an obligation to make something or other.
MR BASTEN: Yes.
McHUGH J: That is not what the section says and at the moment I have some difficulty in seeing that it is implied. It seems to me that it requires you to record something but not to make something but you may be able to persuade me to the contrary.
MR BASTEN: Well, no. May I follow that one through because I thought, in a sense, it was a question that his Honour the Chief Justice put to Mr Tracey this morning that there may be a dual element to it and I had understood from Singh at paragraph 48 that their Honours were accepting there was a dual element to it, namely, a duty to make and to set out. It must make findings on questions of fact that are central to the case raised. In this respect, section 430 sets a standard of decision-making the RRT is required to observe.
Now, I am not sure whether I will take that argument any further by comparison with the AD(JR) Act because I do not think that I am at odds with what your Honour was putting to me about section 13, but the - - -
GLEESON CJ: Well, if you look at section 476(2)(b) it tells you that you cannot have a review in the Federal Court on a ground that the decision:
is so unreasonable that no reasonable person could have so exercised the power -
Now, I suppose a good example of an extremely unreasonable decision is one in which the process of fact finding is obviously deeply flawed, but many cases of deeply flawed fact finding would, on your submission, come within 476(1)(a) because it would involve a failure to recognise materiality of facts.
MR BASTEN: Your Honour, I think this Court would have to embrace the minority judgment of Justice Deane in Bond for me to be able to make good that proposition and I do not seek to do it for present purposes. The illogicality of the fact finding may invoke a feeling of unfairness. Whether that is an element of procedural unfairness sufficient to set aside a decision I would have thought is doubt, at the moment in this country, and it is certainly not a proposition which I need to embrace for the purposes of this argument.
All I was seeking to do, and I still have not perhaps done it sufficiently precisely, is to say that the scheme of the Act imposes an obligation on the Tribunal to deal with the central claims in the application for the visa. That obligation, on one view, is a procedure required by the Act to be observed in connection with the making of the decision. On another view, failure to carry out that exercise may be "an improper exercise of the power conferred by" the Act - though there may be some doubts about whether that is the appropriate category - or it may be an error of law "involving an incorrect interpretation of the applicable law", being the law which this Act requires the decision maker to apply.
But there is a separate question as to whether or not there is anything wrong with the decision maker simply failing to make a finding on what appears, in the circumstances of the case, to be a material question. May I go, for this purpose, to the joint judgment of your Honour the Chief Justice and Justice McHugh in Abebe [1999] HCA 14; 197 CLR 510 in a passage at paragraph 83 on page 544, in which your Honours adopt, in the context of the present Act, an approach taken from the majority judgment in Guo's Case, to which I can take your Honours if necessary. Halfway through paragraph 83:
As Guo makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution. The Tribunal "must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear.....However, given the nature of the prosecutor's claim, the Tribunal was entitled - indeed bound - to start its inquiry by considering her claim that she had been arrested by government officials for political reasons.
"Bound", as I understand your Honours in that passage, means legally obliged to commence the inquiry with that claim. That claim was rejected, so - - -
McHUGH J: Yes, I know, but that obligation does not arise from 430. That arises from the function of the Tribunal.
MR BASTEN: I am putting less emphasis, perhaps, on section 430 than the Federal Court has, and for this reason, that it seems to me that it is one of the sections, but only one, which helps to define in detail the function of the Tribunal. What we say in the written submissions is that one needs to go back to 414 and 415. Section 414(1) requires the Tribunal to review the decision, that is, the decision of the delegate of the Minister. Section 415(1) provides that the Tribunal may:
exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
Your Honours, we have over lunchtime provided your Honours with a photocopy of some further provisions in the Migration Act which really take the story back to its root. It is necessary to go back behind these provisions to understand what the matter is which is before the Tribunal. You start at - rather than go backwards through it, one starts at 36 which prescribes a class of visas know as "protection visas" and identifies the critical criterion.
One then goes to section 47, which requires:
The Minister is to consider a valid application for a visa.
Perhaps I should say, one perhaps needs to refer to section 45 on the way through, which deals with that matter of the application:
Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class.
Then section 47:
The Minister is to consider a valid application for a visa.
And then section 65 which imposes the obligation on the Minister "(a) if satisfied", and after considering the valid application -
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
Now, that exercise makes the application the key basis on which the grant or the non-grant of the visa is to be considered and we have set out in the written submissions an analysis as to the operation of these provisions in relation to the function of the decision maker in a number cases in the Federal - - -
GUMMOW J: You have to go to section 415(1) though, do you not?
MR BASTEN: Yes, I thought I went to that, your Honour, I am sorry, I should have.
GUMMOW J: It puts the Tribunal in the shoes of the Minister.
MR BASTEN: Section 415?
GUMMOW J: Section 4l5, yes.
MR BASTEN: Yes, that is so; I am sorry, I did mean to take your Honours to that.
GUMMOW J: That, in a way, tells you something about the review under section 414.
MR BASTEN: Yes, that is, in a sense, why I took your Honours backwards through it in order to come to the proposition that the source of the material which is to be considered is the application.
The line of authority to which we refer in the written submissions is a line which arose under the AD(JR) Act heading relating to improper exercise of power and at paragraph 4.36 of page 16 of the submissions, we refer to a number of decisions, including judgments of your Honour Justice Gummow then in the Federal Court in Khan and in Broussard and we have included - and I will not take the Court through all these matters - with the authority of the unreported decision in Khan v Minister for Immigration and Ethnic Affairs a decision of his Honour on 11 December 1987. At page 11 of that judgment, at the bottom of the page, after setting out the then relevant provision in 6(a)(1) of the Migration Act, your Honour had this to say at about point 8 on the page.
McHUGH J: What page is that, 11?
MR BASTEN: Page 11, your Honour.
However, what was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy.
And after some reference to other authority:
The assertion by the decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense.
Referring to the judgment of Justice Toohey then in the Federal Court in Turner's Case. At page 20, in the middle of the page, following the same line of reasoning as we would apprehend, again after referring to the provision in the Migration Act, your Honour said:
when read with what precedes it, is further indication that the applications in question were not each given proper, genuine and realistic consideration upon the merits.
And that, as we would understand it, is a reflection of the obligation on the Tribunal as part of its central authority and power to carry out its functions in that manner.
Accordingly, we would understand the comments in Guo and Abebe as based upon the same legal principle, namely, that there is an obligation imposed on the Tribunal to make findings on material facts, being facts which are made material not simply by the statutory criteria but by the claims contained in the application for the visa and that those are objective considerations. May I say before leaving that topic that it is necessary of course to accept what your Honours in the majority judgment say in Chen Shi Hai, namely, that the exercise of power under section 65 of the Migration Act is not the exercise of a discretionary power. Accordingly, there may be a question as to whether - - -
GUMMOW J: It was at the time of Khan.
MR BASTEN: Undoubtedly. Khan, Broussard, the line of authorities that we have referred to, Hindi at paragraph 4.36, were all dealing with a power which was undoubtedly a discretionary power. The proposition I am putting, your Honour, is that we accept that one needs to go beyond that proposition in order to make good the step under the present Act.
GUMMOW J: Yes, I understand that.
MR BASTEN: Nevertheless, the line of authority which is reflected in Guo and now Abebe provides exactly the same test, as we would understand it, namely, the need to consider the central claims made by the applicant and to provide an answer by way of a finding on the central matters of fact. If that is not an obligation derived purely from section 430, so be it. We say that it is appropriately derived from the Act taken as a whole and the structure properly understood. That may bring us back to the question of whether or not the failure to carry out that obligation firstly falls within one of the subparagraphs of 476(1) and, if it does, which one, and, if it does not, whether it is the subject of relief which may be available in the original jurisdiction of this Court.
Leaving that last proposition to one side for the present purposes, we would submit that it falls readily within either paragraphs (b), (c) or (e). If there is a legal obligation to make material findings of fact and that is not complied with, the decision involves an error of law within (e), one would think, "being an error involving an incorrect interpretation of the applicable law", namely, the obligation imposed by the statute. If that is not the appropriate course, then it may well constitute a decision not authorised by this Act because it has been made without following the legal obligations imposed by the Act.
It may be said to be a jurisdictional error in the terms of (b) which, as I think your Honour Justice Gaudron noted in Abebe, was not picking up the ground of jurisdictional error in the prerogative writ sense, or it may be - and we see no difficulty with this proposition - a failure to comply with the procedures that the Act requires to be observed in connection with the making of the decision. As we understand it, really the only objection which has been put against that line of reasoning is that in some way we are really doing something illegitimate because we are seeking to say that the Tribunal has failed to take a relevant consideration into account and that is not a ground available to the Federal Court.
With respect, we do not understand that as being illegitimate complaint. It is not insignificant that the drafter of 476 has made two general exclusions to the grounds available in the Federal Court in subsection (2), one of which is manifest unreasonableness which may have been put in there from an abundance of caution. But in subsection (3), he or she has sought to define the proper extent of the improper exercise of power ground in (1)(d) and it is only in relation to (1)(d) that relevant and irrelevant considerations are excluded.
Now, that is not a problem if the analysis which I have proposed is correct. This not being a discretionary decision, the improper exercise of power ground referring to discretionary decisions, the reference to relevant and irrelevant considerations, should really be understood as being considerations which go to the exercise of a discretion and that is the sense in which those factors are dealt with in the AD(JR) Act.
There may be other ways in the common law jurisdiction of identifying and categorising grounds, but if we are right in saying that there has been a failure by the Tribunal to exercise its functions properly under the Act, then it is not appropriate simply to seek to bring that failure within an exclusion because the terminology of relevant and irrelevant considerations read in the abstract is broad enough to cover that complaint.
McHUGH J: But this argument seems to have nothing to do with the appeal. It seems to be the basis of a notice of contention which has not been filed.
MR BASTEN: Which has been filed.
McHUGH J: It has been, has it?
MR BASTEN: There is a notice of motion - I thought it had been filed, your Honour, but there is a notice of motion to rely on it, it was filed out of time. I do not understand that to be opposed.
McHUGH J: I am not sure that I have seen it.
MR BASTEN: It was attached to our submissions, your Honour.
KIRBY J: I have seen it.
McHUGH J: It is not attached to the ones I have.
MR BASTEN: I am sorry. Does your Honour have - - -
KIRBY J: I think Mr Tracey referred to it too, did he not?
MR BASTEN: Yes.
KIRBY J: But reserved his major arguments until - - -
MR BASTEN: Your Honour, there was a notice of motion and an affidavit filed in support of being permitted to rely upon - - -
McHUGH J: I have one in Israelian, an affidavit, but I - - -
HAYNE J: Supported by the affidavit of Fisher sworn 2 November.
MR BASTEN: That is in Yusuf, your Honour, yes.
McHUGH J: I am sorry, I have it now, I have got it.
MR BASTEN: I am sorry, yes. Can I say one thing about your Honour put to me, though. The notice of appeal which appears at page 158 of the appeal book includes five grounds, all of which appear to raise questions of the categorisation of the error.
McHUGH J: But they are all harnessed to section 430.
MR BASTEN: Yes. Well, subject to subsection (2) where we are pushed off into 476(3)(e). That was the point I was seeking to address a moment ago. I am sorry?
GLEESON CJ: No, go ahead.
MR BASTEN: I was just going to say I accept what his Honour Justice McHugh puts to me about 430, but that is because that was the approach adopted in the Full Court.
GLEESON CJ: A central question, as you put your argument, as you just said, I think, to categorise or classify the error. I may be misunderstanding something about the facts and I would appreciate it if you could clear them up. The error concerns the way in which the Tribunal dealt with the occasion on which the husband ran away, is that right?
MR BASTEN: Yes.
GLEESON CJ: If you look at the reasons of the Tribunal on 115 - it has already been pointed out that the Tribunal talked of two isolated instances. Does it not appear that the reason the Tribunal concentrated attention on those two isolated instances was the Tribunal thought that the husband ran away on one of them?
MR BASTEN: No.
GLEESON CJ: Have a look at page 113, line 24. If you look at that paragraph, you see references made to two attacks. On line 24 it is said:
She said that her husband ran away with the help of a neighbour - - -
MR BASTEN: Yes.
GLEESON CJ: Well, the characterisation of the error seems to be factual confusion, does it not?
MR BASTEN: May I say two things about that? One is that is a summary of the claims, so that we do not derive the error from that passage. We derive the error from the absence of a finding about that at all, but - - -
GLEESON CJ: But does that not make it look as though the Tribunal thought that the husband ran away on one of these two isolated occasions? That would explain - it might provide an embarrassingly simply explanation of why the Tribunal on page 115 only dealt with two isolated instances.
MR BASTEN: I suppose that that is one way of reading it, read in the abstract, your Honour, but in that paragraph the Tribunal has sought to summarise a volume of material. Could I take your Honours to it briefly? I wanted to do that in any event. The first statement made by Ms Yusuf appears at page 31 of the appeal book. The second paragraph at line 5 refers to this incident:
About a year and a half ago members from the Hawiye clan invaded our house and attacked my husband. My husband was able to run away with the help of a neighbor.
The terminology used in the passage to which your Honour refers suggests that the Tribunal was reading that material, including the next sentence. Then there is a new paragraph:
On one occasion I went to purchase food for my children -
clearly a different incident -
People from the Hawiye clan attacked me.....I was lucky that my neighbors saw this attack and they came and saved me from these people. I was lucky that the neighbors who were Hawiye saved me otherwise I would have probably been killed.
On another occasion a group of women from the Hawiye attacked me as I was shopping near our house.
The distinction between the first incident in the house, when there was an attack, a house invasion - almost those terms - and the two other incidents where she left the house, after she had lost the protection of her husband, but at a time when she was living with some people who provided her with some surrogate protection apparently; clearly three separate incidents. Then - I will not read it all - your Honour will see the fears on return set out in the final paragraph of that statement. Might I say in relation to your Honour's question to me that the similarity with the wording in the two passages suggests that the Tribunal was not intending to run those three incidents together because he appears to have the precise words in front of him.
The second statement appears at page 36 where in five paragraphs she adds some more detail. The first paragraph is an attempt to excuse the failure to provide this information 10 days earlier. I should have said, perhaps, that she arrived in the country on 9 February and the first statement is, I think, dated 12 - it says "January" but it should be February. The Tribunal suggests it is February.
The second statement is dated 22 February. Paragraph 2 refers back to the initial statement and notes "knife" injuries. The third paragraph is a totally new incident. This is the incident which the Tribunal dismisses as having been invented. In a passage which is set out on page 116 at line 10 in the Tribunal's reasons:
that four family members were killed in a bombing incident in 1991. The claim is of such significance that the Tribunal does not accept the applicant, having fled Somalia specifically in order to seek asylum, would then have omitted any allusion to it at all in the initial stage of her application......invented those claims.
Despite them being of such significance the Tribunal says in the next paragraphs:
Even if the claims were found to be true, they -
were of no significance. That is something, of course, we cannot complain about. Going back to page 36 at line 20 she adds something to the statement about "the neighbors who" had "protected" them, saying:
they could no longer protect us.
Then, the fifth paragraph does not raise any further issue. There is an interview with the Tribunal member which appears at pages 73 and following. Much of the early material is not relevant for present purposes. The matters which were to be considered by the Tribunal member in relation to her fears commence at page 86 when he invites comment on her personal situation. Interestingly, at line 25 after asking:
How old is your oldest child?
Interpreter: The child who is 15 now is the son of my sister who died, and when she died, I had to marry her husband and that meant I had to bring up that child as a mother.
That, of course, is, at least indirectly, a reference to the attack which left her sister dead and her sister's husband having escaped with the older child. There is then some discussion which I will not take your Honours to about her clan on page 87 to 88. She is asked some questions from the department's information on page 89 about the clan being mostly associated with south-eastern Ethiopia. At line 40 she points out, not irrationally, that she actually comes from a different country. She was then asked at the bottom of that page:
Why would you not go to return to Mogadishu and live there?
Then there are a series of questions about:
What difficulties did you have in Mogadishu?
At 90, line 7. He refers to the "injuries" which was in the second statement.
How did you incur the injuries?
Who attacked you -
And so on down the page.
At the top of 91 she refers to her situation at that stage - this is after the departure of her husband - being "like some kind of house arrest". In the middle of page 91, she was asked - sorry, line 12:
What was the family that offered you protection?
INTERPRETER: That family was my neighbour.
She describes why they protected her. At 92 at line 17 she says:
In fact the Islamic faith says that neighbours have the right to defend one another -
and then there is a misunderstanding. Indeed, the interpretation does not seem terribly good. At line 40 on page 92, Mr Brewer - that is the Tribunal:
Are there any other problems that you experienced in Somalia that you haven't already told me about?
There she talks about the incident with her husband again:
my husband and myself were attacked.....I was put on something on my head -
she was wounded on the forehead:
and after we have had to suffer attack and the family who are protecting us have decided that at this time they are forced to take us out of the place where we were living -
She says she was pregnant at the time. Then at 93 at line 10 the Tribunal refers to two significant features of her later statement which she says she has not addressed in evidence so far. What they are, apart from the incident with the sister, is not clear. She was never asked about an incident so far in the hearing which did not refer to her difficulties or problems and she did refer indirectly to the sister being dead and then there was a further discussion of that separate incident at the bottom of that page.
GLEESON CJ: Well, now, taking findings of fact in descending order of particularity, on page 117 at line 17 you get the most general finding, no:
well-founded fear of persecution for a Convention reason.
Then you go down one level of particularity to 117 line 5:
The applicant is not a member of a clan that is targeted for persecution by other clans and her individual experiences of harm are not attributable to her race.
That is a more particular finding. Then you get a more particular finding still on page 115 which is that on - it is not her clan membership that motivated the attacks on her. Then you get a more particular finding again a little higher up on page 115, "on the two isolated occasions" when she:
encountered problems, she was assisted by persons from the same clan as her attackers - - -
MR BASTEN: I am not sure that I accept the last two at a different level but I understand your Honour's point.
GLEESON CJ: So you get what might be described in old-fashioned terms as the fact in issue, on page 117, line 15, then you get a fact relevant to the fact in issue, further up on page 117, and then you get what might be described as a particular on the bottom of page 115, and then you get some evidence further up page 115. At what point in this descent down the level of particularity of fact finding do you stop when you are categorising a "question of fact" as material?
MR BASTEN: We would say, your Honour, that one need for this exercise go no further than 117, line 6, because the finding there about "her individual experiences of harm" is simply, we would say, a composite phrase which picks up the findings which have been made - I think your Honour took me to 115, line 25 to 30-odd.
GLEESON CJ: But what you are really complaining about is that that is a flawed process of reasoning because it does not pay sufficient regard, or perhaps does not pay any regard, to the occasion on which her husband ran away.
MR BASTEN: There is no regard, we would say, in the discussion and findings to that incident. It is a highly significant incident for the reasons that the trial judge gives, and I will not repeat them. It is also significant in the context in which your Honour puts it to me for this reason: although on page 31 it is clear that the members of the clan that attacked the house, invaded the house, were Hawiye and that the husband was helped by a neighbour, there is no reference there to that help being provided by other members of the Hawiye clan, nor is there any evidence of that in the interview, nor did the Tribunal member ever ask her about that. If that is a different circumstance, then it is in a different category.
GLEESON CJ: But behind all this, he is acknowledging his reliance on the information on page 115, line 8 and 9.
MR BASTEN: Yes.
GLEESON CJ: He has been informed by some other source of information that:
The Abaskul are not the target of the Hawiye - - -
MR BASTEN: Not the target, that is so, yes.
GLEESON CJ: Yes, so that is a finding of fact.
MR BASTEN: Using the old Adan terminology. Yes, that is a finding of fact, but that does not mean that individual Hawiye might not be the subject of attack because of their clan membership in particular areas. That is why he looks at the individual circumstances of her case, as I would understand it. He treats her claims as not being totally dismissed simply because the Department makes that suggestion. He accepts the suggestion, but he does not see that as being determinative of all her claims.
GLEESON CJ: Well now, in all that process of reasoning you say he fails to have proper regard to the incident concerning the husband.
MR BASTEN: Yes.
GLEESON CJ: Why is that not just a straight error of fact?
MR BASTEN: We say he fails to have regard to an important element of her claim, which was of a different kind from the other elements to which he does have regard, he has therefore failed to adequately consider all aspects of her application.
GLEESON CJ: Is this expression "element of a claim" a technical expression?
MR BASTEN: No.
GLEESON CJ: So it is just something she is saying?
MR BASTEN: It is, and it is the basis though upon which she seeks the visa and that is what the delegate or the Tribunal in turn must deal with in deciding whether to grant the visa. That is why I came back to that statutory scheme which starts with a valid visa application and requires that the decision maker consider it. It is not an abstract consideration. It is not a visa based upon, "I come from Somalia". It is a protection visa under the Convention, which requires assessment of claims against the Convention standards, which contain the grounds, the real chance of persecution and so on and so forth.
Quite rightly, one would think, the Tribunal cannot say there is no real chance of persecution, especially for a person who may have been badly treated by persons of another clan, simply because the Department of Foreign Affairs and Trade suggests that they are not targeted as such. That is the way in which we put the matter, your Honour.
CALLINAN J: Mr Basten, could I ask you this. What do you say about section 481? Does section 481(2) have application, for example, in a case in which the Tribunal has purported to make a decision but the decision is so bereft of reasons that it is not possible to say even whether it is a reviewable decision or not? When I say "reviewable" I mean within the terms of a restricted review that section 476 contemplates.
MR BASTEN: Your Honour, we would say that that deals with a different circumstance from the making of a flawed decision. We do not say that the Tribunal did not purport to exercise its power. If the Tribunal had said, "I don't accept this was a valid application, therefore I have no authority in relation to it", that might be challengeable if it were based on an error of law and the appropriate order would be an order under 481(2), but that is not this case.
CALLINAN J: Why could not the Federal Court make an order under 481(2)(a) if the decision of the Tribunal was really so bereft of reasons which would enable the Federal Court to say whether it was a reviewable decision or not? Why could not the Federal Court then make an order directing the Tribunal to make a decision sufficient to enable it to decide whether it was a reviewable decision?
MR BASTEN: There might be an extreme case in which that would be appropriate, your Honour. That is not this case. My only hesitation is that we would resist the suggestion that that is the only source of power for remedying a failure to make a particular - - -
CALLINAN J: You do not dispute - I think Mr Tracey submitted that it was a source of power. You would simply say that it was a power that would very rarely fall to be exercised because the giving of decisions of such a kind is so unlikely or so rare that it would not happen very often?
MR BASTEN: That is so. The example I gave I hope was a realistic one but, if there was indeed no decision and the Federal Court so found, of course the applicant would no doubt be content with that result.
CALLINAN J: It may be a decision but it may be so deficient in the respect to which I have referred that the Federal Court would be entitled to say it is not a decision in any real sense. Do you accept that?
MR BASTEN: I accept the possibility that that might be so, your Honour, yes.
CALLINAN J: If you take that together with what is said in 476(1)(e), which provides for review on grounds of error of law.
MR BASTEN: I cannot apply the reasoning in that circumstance, your Honour, because 476 is posited on the existence of a decision. Section 481(2) is posited on the absence of a decision.
CALLINAN J: No, what I am suggesting is that 481(2), taken with 476(1)(e), may provide an indication - add to that also 476(3)(e). Those three statutory indicators, as it were, really strongly indicate, taken together, that the absence of reference to a material fact of itself would not provide a reviewable ground.
MR BASTEN: Well, perhaps I should say this, your Honour: 481(1) and 481(2) are true alternatives. If one has a judicially reviewable decision, then it may be quashed. The Act assumes that there may be a flaw in the decision which leaves it as a reviewable decision but permits its quashing. The improper exercise of a power as referred to in 476(1)(d) would not usually be a case in which there was no decision, because (d) refers to the existence of a decision.
Subsection (3) qualifies and explains (1)(d), it depends upon the existence of a decision. I think I would need, therefore, to say that 481(2) could have no application in the sort of circumstance your Honour is putting to me as being one that might otherwise have fallen under that provision, namely (3)(e). It just would not have application where there is a decision, as I would understand it. I may have missed your Honour's point, but that is my - - -
CALLINAN J: I was really putting the three things together as a basis for a possible inference that omission of reference to a material fact would not provide a reviewable ground. It does not say anything about your prerogative relief.
MR BASTEN: No. I appreciate what your Honour is putting. I suppose I say in that case that the suggestions in cases like Abebe and Ibrahim, which suggest that a tribunal is bound to consider certain facts and make findings, would not have been appropriately termed in that language if what your Honour is putting to me is right. So, I think I would rely upon those decisions in answer to the inference which, as I understand your Honour, to be deriving from 481(2).
KIRBY J: Could I just mention a few problems I have with section 430 itself. If you look at 430(1), it requires the setting out of the decision of the Tribunal, the setting out of the reasons of the decision and then the setting out of the findings on any material questions of fact. One would, by orthodox statutory construction, look at (c) as being of the same general kind as (a), (b) and (d). When one does that, (a) is simply referring to the decision which is an objective statement from the Tribunal; (b) are its reasons, good or bad; and (d) talks of any other material. So, the difficulty of elevating (c) into some objective standard is that it is then not fitting very comfortably into the (a), (b) and (d). I do not know whether discussion of this in the broader context of the template leads to any clarification of that, but just as a matter of statutory construction, there is a problem in elevating (c) to an objective standard, when (a), (b) and (d) are not thus.
MR BASTEN: May I say this, your Honour, firstly in relation to (d). It clearly is at a different level to the first three because it depends upon the findings of fact being made and then it requires that those findings be the subject of further reference, so that I suppose (d) is at a different level, but - - -
McHUGH J: But they must be findings.
MR BASTEN: There must be findings, but all I am really saying is that you cannot refer to the evidence where there are not findings on which they are based, so there is a sort of - one starts with (c) and then moves to (d) in a sense. Logically, one has to have a finding before one can set out the evidence on which it is based. Similarly, you might say that one needs - I am not sure about the relationship between the others, but I do not think there is any doubt that the function of the Tribunal is to make a decision on the application. That is the decision which is referred to in (a). One perhaps does not bother to go to 430 to find that the Tribunal has an obligation to make a decision. One may pick it up from one of the earlier provisions to which I referred.
GUMMOW J: Yes, but this is where the problem arises. Outside this Act, are there cases which say the obligation to make a decision is an obligation to make a decision in accordance with a specified procedure and, therefore, if the procedure is not followed, jurisdiction is exceeded?
MR BASTEN: Well, there are, your Honour, because - I mean, that is certainly true in relation to the - - -
GUMMOW J: Putting aside natural justice for a minute.
MR BASTEN: Leave aside?
GUMMOW J: Leaving aside procedures attached to natural justice, are there other procedural requirements which have been treated as conditioning jurisdiction?
MR BASTEN: I will ultimately want to say that I do not want to leave aside natural justice.
GUMMOW J: I know you do not.
MR BASTEN: Our case, of course, is that in the other areas procedural fairness has been seen as the source of the obligation. But leaving that point aside, there was reference earlier to the line of authority in relation to judicial reasons and we provided a copy to the Court of what I think is all but one of the most recent decisions of the Court of Appeal in New South Wales, a matter of Apps v Pilet, a decision of a court comprising Justice Kirby as President and Justice McHugh and Justice Priestly - - -
GUMMOW J: But will it not always just be a question of statutory construction? The answer to the question I was putting to you.
MR BASTEN: Well, the answer in that case though was no because it is not dealt with as a matter of statutory construction in Soulemezis and these - - -
GUMMOW J: I think the judicial case is in a different league, if I may say so.
MR BASTEN: I accept that.
GUMMOW J: The judicial power cases are in a different league.
MR BASTEN: Well, can I say two things about that: one is - - -
GUMMOW J: At least for the reason that the great injunction of administrative law is against "appeals".
MR BASTEN: Yes.
GUMMOW J: I know people use it loosely, but it is not what you are talking about. You are talking about judicial review here, you are talking about exercising original jurisdiction.
MR BASTEN: In review, wherever the review is?
GUMMOW J: Yes.
MR BASTEN: Yes.
GUMMOW J: So, what courts do when they review one another is another ball game, it seems to me.
GAUDRON J: Were there not cases about conditions precedent to the exercise of jurisdiction distinguishing between conditions precedent and other conditions?
MR BASTEN: Yes.
GUMMOW J: I thought so. Do we not need to know about them?
GAUDRON J: They did not go to jurisdiction but, indeed, might fall within (a) or (e) even and perhaps even within (c), even though it does not fall within (b). Now, are there not some cases about that?
MR BASTEN: Yes, I think there are, your Honour, and I am - - -
GUMMOW J: I am sure industrial lawyers have been onto the point before today in this Court.
MR BASTEN: Yes. There may be statutory preconditions, for example, which do not go to the constitutional constraints on industrial power but arise from the statute and Coldham and that line of authority may include those cases.
GUMMOW J: Yes.
MR BASTEN: I hesitate to say that we may not finish today but, whether we do or not, might I have an opportunity to either come back to it in the morning or give your Honours a note of that?
GUMMOW J: Because, on one view of it, maybe section 430 is a provision like that. Maybe you have to say it is a provision like that.
MR BASTEN: Well, yes. I think, in a sense, I am saying that, although I do not treat 430 on its own in that regard.
GUMMOW J: I realise that.
MR BASTEN: I think perhaps some of the discussion of jurisdictional fact cases may also give some assistance in that regard. And, yes, if that is right, then your Honour Justice Gaudron's comment to me about the other heads of power may be appropriate. Can I just say one other thing? What I was seeking to say, for example, in relation to Apps v Pilet, is that the result of the failure of the judge to give reasons results in the decision being set aside, not on some other form of relief.
Now, that is said to be because you cannot order mandamus against a judge, by Justice Finkelstein, I think it was, in Comcare v Lees. But it is clearly not based upon the absence of other relief being available, that is the consequence of the failure, and as we would apprehend it the reason for that is precisely the reason that the obligation to give reasons, and the failure to give reasons, is either an error of law or is a breach of procedural fairness. I think in Soulemezis your Honour Justice McHugh, in a passage which has been referred to with approval in a number of subsequent decisions, referred to the need for justice to be seen to be done as the ultimate basis of the obligation.
But in this case, what one would say about the distinction between the judicial obligation and the statutory administrative decision making obligation, is that it is just that. In this case we have a statutory provision so that applying Project Blue Sky-type approach, one must, of course, look to the statute to see if there is some different scheme found in the statute or some indication that the result will not be invalidity. That scheme one does not find because 476(1) provides a number of ways in which a failure to comply with the statutory obligation, however one categorises it, gives rise to invalidity and the setting aside of the decision and, with respect, my friend struggles to find any other relief available within the scheme of the Migration Act to cure the failure to which, on this basis, we accept has occurred.
Might I add one other proposition to that? Namely, that if there is a decision then it is essential, as he said, that an application for review be made forthwith and obviously before any order could be made seeking some further and better particulars of reasons because section 478 imposes a 28-day limit, unextendable by the Federal Court, within which review must be sought. We refer to that in our written submissions.
Your Honours, in that regard, may I just come back to the proposition which I will not perhaps trouble your Honours with in terms of the case law because it is set out, I think, in the written submissions, but at paragraph 4.6 at the bottom of page 7 and subsequently the reason for going through the case law dealing with the obligation to provide reasons is not to establish that there is any particular common law obligation in this country but merely to suggest that in none of the cases is it suggested that that obligation, or the contravention of it, will be other than a contravention of procedural fairness, and that seems to be the basis upon which Osmond was dealt with.
It is certainly the basis on which all of the English cases set out at paragraphs 4.8 through to 4.11 deal with it. It is certainly the basis upon which the Supreme Court of Canada in Baker v Canada in the judgment of Justice L'Heureux-Dubé set out at paragraph 4.12 is founded, namely, that procedural fairness requires the giving of reasons, if anything does. That was the approach referred to in Muralidharan - - -
GAUDRON J: I wonder in what sense procedural fairness is being used in that context. I mean, it is an expression that has not always had a constant meaning.
MR BASTEN: Well, that is undoubtedly so, your Honour. The proposition which I seek to make in that regard is really simply this that although 476(1)(a) does not use that phrase, indeed it may eschew it, it talks - - -
GAUDRON J: And, 476(2) talks about "natural justice".
MR BASTEN: Yes, but 476(2)(a) and (1)(a) are clearly counter-posed and I thought that was my friend's point in relation to the explanatory memorandum. What the Parliament has tried to do is to put into the statute those elements of natural justice or procedural fairness which are to be the ground, or are to be available as grounds of review in the event of breach in the Federal Court. There is no reason to suppose that the talk of procedures in 476(1)(a), in that context, was other than talking of the sorts of procedural steps which might be required by procedural fairness as a matter of implication under the common law.
So, we would say that if that be right then the failure to make appropriate findings of fact or to set them out in the statement are procedural failures which are encompassed within 476(1)(a), and that comes back to the appeal, I suppose.
GAUDRON J: I do not know why you do not just say, given what section 430 says, you assume that the Tribunal was complying with what it conceived to be its duty, and if it does not make findings or it does not deal with a particular matter, it is to be inferred that they simply did not consider it.
MR BASTEN: Yes.
GAUDRON J: And, the question then is whether failure to consider that matter is something that falls within any one or more of the paragraphs in section 476(1) and if it does not whether it falls, nonetheless, within that territory which might attract constitutional relief.
MR BASTEN: If I have not said it, your Honour, may I do so now? I thought that the written submissions did in a rather difficult and no doubt complex way say that. That is certainly the proposition I would seek to make, your Honour. The reason, perhaps, why it does not come through as clearly is that until the reply when, for the first time, we were told we did not know that there was a failure or it has not been shown, we had assumed that the notice of appeal was raising grounds which were simply concerned with the categorisation of the error, that we need now to address it expressly, and if I may adopt what your Honour has said we would do it in those terms.
GAUDRON J: It may be that you can say because the Act requires that claims be considered, going back to section 415(1) and via it back through, if you come to the view that it is to be inferred that a part of the claim was not considered, then the procedures required by the Act were not considered.
MR BASTEN: Yes. Well, that is our primary ground, your Honour, and that may not even depend upon a notice of contention, but if it does, because it may require one to go outside 430, then we seek to rely upon the notice.
Your Honours, I think with the written submissions that covers what we seek to say about the appeal. In a sense there are questions arising in relation to the original jurisdiction relief in this Court, which of course we say just do not arise. If it is necessary to rely upon the original jurisdiction, it is necessary to deal with two provisions, namely, sections 75(iii) and 75(v).
KIRBY J: Can I just ask you to pause. You say "if it is necessary to rely on it". Is that the correct approach where a party comes to the Court by way of an appeal and also invoking original jurisdiction, do we only look at the original jurisdiction if it be necessary or, because it is an invocation of the Constitution, do we give that primacy and deal with that first? What is, first of all, the authority of the Court, if anything, on that? What is the logic of the Constitution?
MR BASTEN: I suppose it is a problem which has first arisen because of the bifurcated jurisdiction under Part 8, so I do not know of any authority which would assist your Honour.
KIRBY J: What in terms of principle is the correct approach? Both processes are under the Constitution. One comes here, there is an appeal under the constitutional appellate provision. The other comes here, you having invoked the original jurisdiction. As you say, it would not ordinarily arise but it does here. I think we just have to get some principles clear.
MR BASTEN: Unless an issue is raised as to discretionary refusal of relief on the basis that we went successfully in the first instance to the Federal Court and did not seek immediately to invoke the jurisdiction of this Court, we would say that it does not matter.
KIRBY J: It is unlikely that we would hold that that was a very big discretionary consideration, otherwise we would be inviting on ourselves even more disasters than we have.
MR BASTEN: That would invite everyone to file first or contemporaneously in both courts and that, one would think, would not be desirable.
KIRBY J: But the fact that it is desirable that the ordinary course of litigation should be followed in courts that are available suggests that one should first deal with the appeal.
MR BASTEN: Yes, and there may be another reason for that, namely, that this is in effect, although not in the appellate jurisdiction, in the nature of a cross-appeal. It is only the notice of appeal, ground (2), in the first instance which suggests that the relevant considerations put us outside the Federal Court's jurisdiction, that characterisation of the error and, secondly, the possibility that there may be procedural error which does not fall within 476(1)(a).
GAUDRON J: One matter which may provide some guidance at least is this: theoretically at least under this system, the legislative scheme that exists, one may be able to deal with it simply by allowing or dismissing an appeal but one might then get into trouble if one takes section 75 procedures first of granting a remedy and leaving what appears to be an inconsistent decision on the record of the court below, which at least is a pragmatic way of dealing with the matter. You deal with the appeal first and see if you can deal with it to finality. If not, so be it.
MR BASTEN: Yes. With respect, that may be right your Honour. The question had arisen in our minds as to whether if the Court thought that other relief were available and that it might have been appropriate to revoke special leave on the basis that if the reasoning in Singh were thought to be correct, that has resolved the matter of dispute between two separate Full Courts and the Federal Court, so the issues on the appeal could be said no longer to be truly alive, but that would mean one would not need to address the prerogative relief at all either. But I think the considerations that your Honour raises are probably the correct answer to his Honour's question and we do not invite the Court to embark upon its original jurisdiction unless that is necessary because we are unsuccessful in maintaining jurisdiction of the Federal Court to deal with the matter.
What I was going to say in relation to the issues though that then arise are that at least in theory one needs to go back to consider the scope of section 75 relief. Mr Tracey has suggested that perhaps that might be done in writing, at least given the imminence of the possibly relevant decision in Aala tomorrow, we would accept that proposition and also noting the time today. It may also require reference to section 75(iii) which, of course, would be a separate issue, but which will not, I presume, be addressed in Aala, but we could deal with that in writing too, if that were thought appropriate.
GAUDRON J: You have not filed in this Court, have you? You have just simply asked in your submissions.
MR BASTEN: No, there is a matter in 126 which is commenced by notice of motion and we have filed an order nisi.
GAUDRON J: Yes, thank you. And you filed the order nisi?
MR BASTEN: Yes.
GAUDRON J: Has that been - - -
HAYNE J: You have asked for an order nisi. There is no order nisi, is there?
MR BASTEN: Well the application has been filed.
HAYNE J: Which leads to the next question, what is it that you are now moving for, an order absolute in the first instance or what are you - - -?
MR BASTEN: Well, I think my friend suggested that the Full Court should decide whether the point was arguable, but it seems to us that the Full Court, if it were minded to deal with it - may I say that I understand it is listed for directions, as it were, before the Full Court in the first instance, so we are not seeking to jump the gun. If it were thought necessary that it be referred back to a single judge, we would accept that procedural step.
HAYNE J: It is a matter of some interest to me, given the prefix of the number, Mr Basten. What is it that you are, in fact, asking?
MR BASTEN: Does your Honour have - maybe the Court has not been provided with the material.
GLEESON CJ: We have a notice of motion, and a supporting affidavit.
MR BASTEN: And an affidavit?
GLEESON CJ: Yes.
MR BASTEN: Well, the relief is set out in the notice of motion, the relief that is sought - perhaps not terribly well. But the grounds which are set out in paragraph 1 are intended to be the grounds on which relief is sought under the other grounds too. It is, in a sense, as I said, a response to the suggestion that this was really a case of a failure to consider a relevant consideration which was excluded from the jurisdiction of the Federal Court, or, if it were a procedural error, it was one which was not to be found within 476(1) because of the terms of 476(2)(a).
GAUDRON J: What you require, I suppose, is a direction from someone that the notice of motion be referred to a Full Court and heard with the appeal matter.
CALLINAN J: Order 5.
GAUDRON J: Yes.
MR BASTEN: Yes. Part of that is dealt with in paragraph 2 of our outline of submissions in the matter, because we note that, in some respects, the relief may not properly be sought by way of a notice to show cause. But, what your Honour says is correct in relation to so much of it as is properly undertaken by way of order nisi.
GUMMOW J: But your ultimate objective is to have the 75(v) matters dealt with by us at the same time as we deal with the appeal, is that right?
MR BASTEN: Yes, your Honour, on the basis that if we are wrong in thinking that the Federal Court's jurisdiction was properly invoked, we nevertheless seek relief on the same grounds within the original jurisdiction of this Court. We would think it inappropriate that this Court would need to reconsider, in a procedural sense, at a preliminary stage, whether the arguments were arguable. The grounds have succeeded before four judges unanimously in the Federal Court; we would have thought that was at least arguable. The question of the characterisation of the errors has been dealt with fully in this Court already on the appeal.
GUMMOW J: Justice Hayne refers you to Order 55 rule 4.
HAYNE J: Rule 4, at least on one view of it, suggests that you can move in the Full Court without direction from a single Justice under 55 rule 2.
MR BASTEN: Yes, we are happy to - - -
HAYNE J: But then are you moving for order nisi? Because if you are moving only for order nisi - - -
MR BASTEN: No, no. I think I simply reiterate what I said to his Honour the Chief Justice, but, no, that is so. If we are here we are here and we would hope that the matter could be dealt with without procedural - - -
GAUDRON J: Well, you simply move on the notice of motion.
MR BASTEN: Yes.
GAUDRON J: But that still says show cause. You may need to amend that.
MR BASTEN: All right, well, if we could have leave to - what we have said in the outline of submissions is that it may not be appropriate to - that the relief sought under 75(iii) may require an originating application in this Court, too. If that were thought necessary with a statement of claim then we would do so, but we seek a waiver of that procedural requirement if that were thought to be otherwise applicable.
GAUDRON J: Well, all of these seem to be good reasons why one could deal with the appeal to finality to a point where it could be ascertained, at least, whether any of this is necessary.
MR BASTEN: Yes. That is so. Yes, we would agree with that proposition, your Honour.
GLEESON CJ: All right, thank you, Mr Basten.
MR BASTEN: Yes, thank you, your Honour.
GLEESON CJ: Yes, Mr Keon-Cohen.
MR KEON-COHEN: If the Court pleases, may I address the issue raised in the last few minutes. Does the Court have the document that we have filed which is in the matter Israelian in the proposed order nisi matter and it is headed, "Prosecutor applicant's submissions". I understand from a discussion with the Registrar on Friday that it was circulated.
GLEESON CJ: Yes.
MR KEON-COHEN: Your Honours, you will see there the materials filed in both matters by my client, Israelian, in the appeal and in the original jurisdiction. In the order nisi proposed proceedings the position is as we have just described. There is an order nisi, there is an affidavit in support sworn by my instructing - - -
GLEESON CJ: You mean there is an application for an order nisi?
MR KEON-COHEN: An application for an order nisi, I am sorry. There is a notice of motion seeking to bring on for hearing and determination of the application that an order nisi issue, and as has just been discussed by Justice Gaudron, perhaps that should be amended or added to to require that the order absolute be brought on for determination. Then there was a notice of a constitutional matter and I understand there has been no responses. That touches upon the order nisi grounds which go to 75(iii) and 75(v) and there have been written submissions and a list of authorities.
GLEESON CJ: We will hear tomorrow morning what Mr Tracey says about this but it was my understanding that he has come prepared to meet applications for final relief under section 75(v).
MR KEON-COHEN: Yes, your Honour, that is as I heard my learned friend this morning, with the caveat that he may wish to file written submissions later on, if he is given leave to do that.
GLEESON CJ: Yes. He mentioned, and Mr Basten mentioned, that there might be something in Aala, for example, that might have a bearing on it, to which they would wish to respond.
MR KEON-COHEN: And, your Honour, perhaps it is useful whilst we are on this topic to clarify it this way, if you look at those, if you like, three items listing grounds, that is to say, the original appeal, the notice of contention which seeks to add grounds and the order nisi, it comes down to this that in the appeal we have the fundamental issue under 430 as it relates to 476(1)(a) and the issues touched on there.
Secondly, in the notice of contention, that is mentioned, plus three others, not authorised under 476(1)(c), error of law under 476(1)(e) and proper exercise of power in so far as that ground of review is available, in so far as there is, if you like, a residual element available, taking into account 476(2) and 476(3) - - -
GLEESON CJ: All this based upon an underlying contention, whether it is right or wrong, that the Tribunal failed to deal with your social group.
MR KEON-COHEN: Yes, your Honour, and the first thing I wish to do is to indicate that Justice Hayne's comment that this is a "two group" case is correct and, secondly, to take the Court to the materials in the appeal book in Israelian, to put the proposition that my learned friend is incorrect when he says, and that Justice Emmett in dissent was incorrect when he says, that there was only one straw in the wind to found a threat of persecution and to found an inquiry or an attempt to understand what is the nature of the social group alleged.
GLEESON CJ: All right, well, perhaps you can do that tomorrow morning - - -
MR KEON-COHEN: Your Honour, could I just finish with the final list of grounds which is the third process, if you like, before the Court, which is the 75(v) order nisi? There are two extra grounds added to those I have mentioned so that we end up with a total of seven, as I count them up: constructive failure to exercise jurisdiction under 414, 415 and failing to take into account relevant considerations and, seventhly, failure to exercise jurisdiction conferred by the Act. That is the totality of the three processes.
GLEESON CJ: We will adjourn until 10.15 am tomorrow morning.
AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 16 NOVEMBER 2000
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