Gersten, Ex parte - Re RRT & Anor S78/2001 [2001] HCATrans 201 (16 May 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S78 of 2001

In the matter of -

An application for Writs of Certiorari, Prohibition and Mandamus against THE REFUGEE REVIEW TRIBUNAL

First Respondent

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

Second Respondent

Ex parte -

JOSEPH GERSTEN

Applicant

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 16 MAY 2001, AT 9.31 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If your Honour pleases, I appear with my learned friend, MS R.A. PEPPER, for the prosecutor for mandamus and prohibition, and the applicant for certiorari. (instructed by Ron Kessels)

MR P. ROBERTS, SC: If your Honour pleases, I appear for the second respondent with MR G.R. KENNETT. (instructed by the Australian Government Solicitor)

HER HONOUR: I have a certificate from the Deputy Registrar saying that she has been informed by the solicitor for the first respondent that it does not wish to be represented at the hearing of this matter and will submit to any order of the Court save as to costs. Yes, thank you, Mr Jackson.

MR JACKSON: Your Honour, so far as the material before your Honour is concerned, your Honour should have two affidavits by Mr Kessels, one filed on 20 April this year, the other filed yesterday, 15 May.

HER HONOUR: Yes, I have those.

MR JACKSON: Your Honour should also have written submissions by both the sides presently represented here.

HER HONOUR: Yes. There is no objection to those affidavits, Mr Roberts?

MR ROBERTS: No, your Honour.

HER HONOUR: Thank you. Yes, I have read those.

MR JACKSON: Yes. Your Honour will see that the application is brought with the object of having before the Court a basis of challenge to the decision of the Refugee Review Tribunal which could not be made before the Federal Court. Your Honour, there is also a time question in relation to mandamus and certiorari.

HER HONOUR: Yes. I do not think you need trouble yourself. We will see what Mr Roberts has to say about that.

MR JACKSON: Your Honour, as to the substantive issue, that appears from the earlier affidavit of Mr Kessels filed on 20 April. Your Honour will see from that, that what is sought to be brought before the Court is an application based on a ground which could not be before the Federal Court because of the provisions of section 476(2)(b) of the Migration Act, and your Honour will see that provision - I am sure your Honour is so perhaps unnecessarily familiar - that a ground cannot be brought - a ground of challenge cannot be brought before the Federal Court on the basis that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

Now, your Honour, the particular issue that arises in that regard is summarised in Mr Kessels' affidavit and your Honour will see in that regard the relevant paragraphs are paragraphs 8 and following.

HER HONOUR: It has some parallels with what is sought to be raised in the special leave application, does it?

MR JACKSON: Yes, your Honour, yes. Your Honour, could I just say it is a question, in a sense, of ascribing a legal consequence to matters that do not require any new facts. Your Honour, to be put shortly, what is sought to be done is to raise before the Court the question whether the matters set out in paragraphs 8 and following give rise to a basis which would attract section 476(2)(b) if it were available in the Federal Court. Your Honour, that is the essence of the matter, and I am happy to develop it further if your Honour wishes me to at this point.

HER HONOUR: Yes. It is really a question of how you relate what the decision to - the ground of challenge.

MR JACKSON: Yes, your Honour. What we seek to say is this: that your Honour will have seen the passage quoted in paragraph 8 of that affidavit on page 3 of it that what is done by the Tribunal is to say that:

It may be that the Applicant is right in his assertion as to the motivation of his political opponents.

The Tribunal then goes on to say what your Honour will see is at the top of page 4. Then one sees from that that the basis upon which the Tribunal arrived at its decision was that the intervention, as it were, of the decision of the judge of the Florida court in providing for questions to be answered and a refusal to answer those and gaoling in consequence was something that, in a sense, broke the chain of causation.

Now, that aspect, as such, is dealt with in the special leave application. What we would seek to say, however, is that if one looks at the two aspects of the decision to which I have just referred, what one sees is that the difficulty, as we point out in paragraph 11 of that affidavit, your Honour, in pointing to Judge Dean - and that is the Florida court - is a protection for the prosecutor against the persecution was that the Tribunal had accepted that the judge had acted on a completely different factual basis when dealing with the prosecutor. Her Honour, in the Florida court, did not accept the investigation as being conducted in bad faith and, in those circumstances, the protection which the United States courts were to provide did not work on the same basis as the assumption that was being made by the Tribunal. Your Honour, that, in our submission, was an inconsistency which results in a decision which is, we would submit, sufficiently arguably illogical to attract the operation of the principle of unreasonableness.

HER HONOUR: If you were right thus far, the consequence really would be that there was a failure to consider whether there was a fear of persecution, is that right?

MR JACKSON: Yes, it would come to that in the end, your Honour, yes.

Your Honour, I do not know that I can advance the matter beyond that, with respect.

HER HONOUR: Yes, thank you. Yes, Mr Roberts?

MR ROBERTS: Your Honour, the persecution that was alleged here was the gaoling. We submit that the whole argument is - - -

HER HONOUR: Well, the test is not whether a person has been persecuted. It is whether there is a reasonable fear of persecution - reasonable grounds.

MR ROBERTS: Your Honour, what I was looking at was the circularity in argument of what was sought to be put as opposed to what constitutes - what was alleged was that the gaoling itself was persecution and the fear of going back to gaol, if he went back to America, would be further persecution. The Tribunal considered that at page - does your Honour, could I inquire, have the special leave application book?

HER HONOUR: I do. It is annexed to the affidavit; well, a copy of it is.

MR ROBERTS: At page 10 of the application book, the findings of the Tribunal which, in part, are extracted in the affidavit to which your Honour was taken and your Honour will see at line 30 where the extract comes from:

It may be that the Applicant is right in his assertion as to the motivation of his political opponents.

And then the Tribunal goes on, omitting the word "however" but this is what it goes on to deal with:

The Applicant was jailed by Judge Dean for contempt of court. She had ordered the Applicant to answer a series of questions -

et cetera, and the last line on 45:

Judge Dean rejected the arguments put on behalf of the Applicant and he was jailed.

Judge Dean's decision was not overturned on appeal, either by the State appeal court, or the Federal court. The Tribunal notes that arguments as to the bad faith of the investigation, and it's impact -

et cetera.

The Tribunal notes the Applicant's submission that as the investigation was, in his view, carried out to cause him harm for reasons of his political opinion, then the jailing for refusing to answer questions which were part of that investigation also occurred for reasons of his political opinion.

And he goes on at line 20:

The Tribunal does not accept that reasoning.

They dealt with this squarely and fairly and just said that reasoning process is wrong. It is that reasoning process which my friend is now - - - -

HER HONOUR: They say the Tribunal's reasoning process is wrong and inconsistent, inconsistently so.

MR ROBERTS: Your Honour, we submit that that certainly is not so and it is palpably clear that it could not be so when one reads the Tribunal's reasoning here and, indeed, when one reads what the Federal Court, both at first instance and in the Full Court said about it. I will just continue on with the Tribunal:

The Tribunal does not accept that reasoning. The Tribunal finds that the Applicant was jailed for flouting the authority of Judge Dean's court in refusing to answer a series of questions. The Applicant's refusal was his own choice, and not in any way an inevitable result of the allegedly bad faith investigation. Answering the questions required by Judge Dean may have placed the Applicant a risk of being charged with perjury or making a false report, or caused him embarrassment, but that does not mean it was unreasonable for him to have been required to answer the questions, or that he, in any sense, could not answer them.

I mean, your Honour, it is said that that is illogical. With great respect, we would have thought that it is entirely logical.

At page 56 - this is the judgment of Justice Katz at first instance in the - - -

HER HONOUR: It is page 34 of the judgment, yes.

MR ROBERTS: Yes, page 34 of the judgment; 56 in the application book. At the bottom of the page, line 46:

To translate that matter to the present case -

This is "but for" causation -

It appears to me to have been open to the Tribunal to conclude that, although there might be here an appearance of responsibility to the State Attorney's office for Mr Gersten's detention, because, but for the State Attorney's office investigation into the theft of Mr Gersten's car, Mr Gersten would not ultimately have been detained, nevertheless that appearance of responsibility was displaced by Mr Gersten's unreasonable action of refusing to comply with Dean J's order to answer certain questions put to him by Mr Band, his detention being the immediate result of such unreasonable action by him.

That, in fact, is what I interpret the Tribunal to have been saying when giving its reasons for refusing to attribute legal responsibility for Mr Gersten's detention to the State - - -

HER HONOUR: That may or may not amount to an error of law, if that was the Tribunal's reasoning, may it not?

MR ROBERTS: Your Honour, what I am focusing on is the argument that this is supposed to be Wednesbury unreasonable. Your Honour, I am suggesting that it really is unreasonable to suggest that it is Wednesbury unreasonableness of the Tribunal to have reasoned in the fashion that it did and clearly such reasoning was open and correct.

Similarly, in the Full Court, at page 13 of its judgment, or 92 in the application book, in the middle of the page there, about line 20:

The Tribunal made no specific finding as to whether investigation which was launched against Mr Gersten was itself politically motivated. It said no more than that Mr Gersten "may have been right" in asserting that the investigation was carried out in bad faith. However the Tribunal concluded, and the conclusion was to say the least open to it, that Mr Gersten's gaol term arose in the circumstances, not because an investigation was launched, but rather because he had refused to answer questions which he had been ordered to answer by Judge Dean. While it is true that Mr Gersten may not have been placed in the position of having an investigation being instigated into his affairs without his opponents being motivated by a political view adverse to his, that was not the reason he was gaoled.

It may be noted that Mr Gersten did not suggest that Judge Dean had done anything other than afford him a fair trial or that her Honour was herself biased against him. In these circumstances it was open to the Tribunal to find as a fact that his being gaoled was not persecution for reasons of any political opinion he held. There is nothing in the Tribunal's reasons which suggests that it applied, as was suggested, a "but for" test -

et cetera. In those circumstances, your Honour, we respectfully submit that this argument is without any merit or foundation and must fail. Accordingly, we would submit that your Honour should not grant the relief sought. I do not wish to say anything about discretion. Thank you.

HER HONOUR: Yes, thank you. Yes, Mr Jackson?

MR JACKSON: Your Honour, may I say two things. The first thing is that we seek to challenge the aspects upon which our learned has relied and what we would seek to say in relation to them is that if one goes back to the core matters at pages 10 and 11 of the application book, what one sees is that the Tribunal has drawn a distinction which, in our submission, is one which itself is unreasonable.

The leads me, your Honour, to the second thing. The fact that one may be able - - -

HER HONOUR: Does anything turn on the absence of a firm factual finding of political motivation?

MR JACKSON: Your Honour, a ground that was taken below - when I say "below", a ground that was taken in the Full Court of the Federal Court was there should have been factual findings. The way in which the Full Court dealt with this was to say these were assumed. But, your Honour, that - - -

HER HONOUR: No, I am just wondering does it bear on the "unreasonableness" argument?

MR JACKSON: Your Honour, it does in one sense. I suppose one would have to - I am sorry, your Honour, may I start again? If one looks at page 10, about lines 30 to 35, what has been done has been to put it at the highest in respect to the respondents. The assumption is made that we may be right. Then, when one goes from there to say that the reasoning is not accepted. A difficulty, your Honour, does arise, in part, by the way in which it is expressed. What I mean by that is that if there were to be a distinction between, on the one hand, the cause, or "the motivation", I should have said, and on the other hand what actually caused the gaoling, then, in our submission, it would have been appropriate to make a specific finding as to the first, and that weakens, in our submission, the approach taken by the Tribunal.

May I just go on to say this, your Honour, that one sees at page 11, lines 20 to 30, a very structured, if I may say so, with respect, but structured in the sense of a attacking it, approach taken. That seems to be on the basis that because what is done is to invoke successfully procedures of a court in circumstances where, if one looked at the matter purely by reference to the court and its procedures, there would not be any basis for saying that there was some infringement of rights or persecution, then to say that is what brought things about even though there may have been a background cause.

Now, your Honour, one sees, of course, there are numerous circumstances in which the invocation of otherwise perfectly appropriate curial procedures may itself amount to persecution. May I give one example, your Honour? If one took a country in which homosexuality was regarded as a crime in the sense of sodomy being forbidden but, on the other hand, there was never a prosecution, it may well be possible to have a persecution of a person for political beliefs by bringing a number of prosecutions of that kind. It may be, your Honour, if one looked at the prosecution itself it was entirely something that was justified by the evidence and could not be successfully appealed but, at the same time, to engage in conduct of that kind may yet amount to there being persecution, in our submission.

So, your Honour, that is why we would seek to say that it is unreasonable - the test encapsulated the brevity in section 476(2)(b), it was unreasonable to adopt the course that because everything that was done fell within the powers of the court and could not itself be attacked, therefore, there could not be persecution, notwithstanding the view taken about political motivation.

HER HONOUR: You put it on the ground of unreasonableness. I am just wondering whether, if you put it like that, it is not really a constructive failure to exercise jurisdiction, a failure to ask the right question, if you put it on that basis.

MR JACKSON: Your Honour will see - - -

HER HONOUR: I have a draft order nisi.

MR JACKSON: In our written submission, your Honour - - -

HER HONOUR: I am just looking at - you have:

in excess of jurisdiction.....employed illogical reasoning -

I am just looking at the grounds.

MR JACKSON: Yes. Would your Honour excuse me just one moment. I just wanted to check if this aspect is covered by the special leave application?

HER HONOUR: Yes.

MR JACKSON: Your Honour, that aspect, I think, is covered by the special leave application. Your Honour will see at page 103 the grounds of the draft notice of appeal what your Honour was putting to me a moment ago: grounds 1(i) and (ii).

HER HONOUR: No, not exactly. What I am wondering is whether, if your argument be right, it is correct to say that the first respondent acted in excess of jurisdiction as distinct from constructively failed to exercise jurisdiction by failing to consider whether, if the investigation was politically motivated, the court proceedings were also - - -

MR JACKSON: Your Honour, we have referred to that, in fact, in our written submissions, I think, in paragraph 5, and your Honour is right, I suspect, in thinking that perhaps the grounds of the order nisi might not be appropriate to cover that. Your Honour, in that circumstance, we would seek leave to amend it or to amend a notice of motion if your Honour were to direct the matter be dealt with by notice of motion to a Full Court, to include a ground along those lines.

HER HONOUR: Yes. Did you wish to say anything to that, Mr Roberts?

MR ROBERTS: As I understood what was being articulated, this is a matter that could have been raised, if in fact it was not raised, in the Federal Court.

HER HONOUR: No, no, not at all.

MR ROBERTS: Constructive failure to exercise jurisdiction. I think, in fact, it was at some stage - - -

HER HONOUR: What I am suggesting is that if there is unreasonableness in the circumstances which Mr Jackson postulates, the jurisdictional error is not necessarily excess of jurisdiction. It may be constructive failure to exercise jurisdiction.

MR ROBERTS: Yes, I understood that, your Honour.

HER HONOUR: Yes.

MR ROBERTS: Theoretically, I would agree with that but my point was if that be so, if that is their point, then it could and should have been raised in the Federal Court, and indeed was.

HER HONOUR: As unreasonableness? I mean, this is just one of the myriad of procedure problems that arise by this bifurcated process.

MR ROBERTS: Your Honour, at first instance, as I recall - I am just looking for the grounds of the original appeal to the Federal Court, there was certainly something said, at some stage, about a failure to find facts and that was abandoned at some stage.

HER HONOUR: No, I am not talking about - - -

MR ROBERTS: I think, your Honour, in fact, that is how the argument - - -

HER HONOUR: Well, there was certainly a bit of overlap but - - -

MR ROBERTS: If your Honour had determined to remit the matter or to grant the order nisi at this stage and it goes to a Full Court, I would not have any objections as to some amendment as to the pleading, except the argument that I am advancing now, that this can and should have been put and, indeed, we submit, was put at some stage, certainly at first instance, in the Federal Court. I have now the application for an order of review which is at page 18 of the application book which is not very illuminating. But, certainly, as I recall, during the course of argument there was an argument put and seemingly abandoned that findings were or were not made and, indeed, his Honour Justice Katz dealt with that by saying that the Tribunal, in effect, had made a finding favourable to the argument that there was a "bad faith" investigation, whereas the Full Federal Court dealt with it on the basis that the Tribunal was prepared to assume that there was, which seems to be possibly the better argument.

But this argument, as I understand what your Honour has derived it from is a suggestion that the Tribunal did not do its job because it did not find facts and therefore failed to exercise its - - -

HER HONOUR: No, no. It failed to consider whether, if there was a "bad faith" investigation, there might nonetheless - and even though the court acted entirely properly, whether that in itself might constitute persecution because of the selective nature of the person subjected to that process.

MR ROBERTS: We submit they, in fact, dealt with that entirely in their reasoning.

HER HONOUR: Yes, but if that is as Mr Jackson puts the case, the question is whether that is an excess of jurisdiction as is said in the application or whether it is a failure to exercise jurisdiction. It is only a quibble really.

MR ROBERTS: Yes, it is only a quibble because it is an error of law, and an error of law is a matter that can be raised in the Federal Court, and was. So, correcting the application in that fashion, we would submit, would be to do something quite extraneous to what these proceedings were supposedly had been launched for because that matter was and could have been raised as a ground under the Migration Act. Error of law is a ground of review, or appeal, I am sorry, in the Federal Court.

HER HONOUR: Yes. One understands all that but, as I think has been pointed out on a number of occasions, there is an overlap between the grounds and it is just a question of how you identify the jurisdictional error based on the alleged unreasonableness. Anyway, I think nothing turns on it.

MR ROBERTS: Anyway, I think I have put what I wanted to, if your Honour pleases, in relation to that.

HER HONOUR: Yes. Now, one of the difficulties about cases such as this is that they present procedural problems for this Court, as has been said on many occasions. I would be minded to refer this matter to a Full Bench but making it obvious that the matter might be dealt with summarily by a Full Bench in the event that the special leave application were to fail, unless the parties are in agreement about the special leave application, in which event if there were some such agreement the special leave application could simply be referred as a leave application to the same Full Bench.

MR ROBERTS: We would certainly support that, your Honour. In fact, possibly the best outcome would be to have both matters dealt with at the same time which would probably be quicker in the long run than - - -

HER HONOUR: I do not think one can anticipate great haste in view of our refugee list, Mr Roberts.

MR ROBERTS: I am not referring to haste, your Honour; merely, it may be quicker in the long run for that to occur in this case and we would certainly support the special leave application being dealt with at the same time as - - -

HER HONOUR: As the special leave application, albeit that the parties might have to go further. What - - -?

MR JACKSON: Your Honour, we are content with that. Your Honour will have seen that the first affidavit contemplated that the proceedings might be heard together.

HER HONOUR: Yes, but it is a little bit difficult to organise those, other than - - -

MR JACKSON: Yes. Your Honour, I appreciate that. We would be content with that course.

HER HONOUR: Yes, very well. What I shall do is I shall refer the application for an order nisi to a Full Court and I shall direct that the special leave application be listed as a special leave application before the same Full Bench, the parties being put on notice that should the special leave application fail, it may be that the application for an order nisi will be dealt with summarily. Alternatively, should the Court so direct, the parties may be required to argue both matters comprehensively.

I will certify for the attendance of counsel. I do not think there was anything else I need do, is there?

MR JACKSON: No, your Honour.

HER HONOUR: Could you give me an estimate of how long, assuming the matter were to be argued fully?

MR JACKSON: Your Honour, the case, I should think, would be less than a day but more than half a day.

HER HONOUR: Yes. Do you agree with that, Mr Roberts?

MR ROBERTS: Yes, your Honour.

HER HONOUR: Yes, thank you. I will adjourn at this stage.

AT 10.02 AM THE MATTER WAS CONCLUDED