Minister for Immigration and Multicultural Affairs v Rajamanikkam & Anor S206/2000 [2001] HCATrans 238 (1 June 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S206 of 2000

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Applicant

and

NADASARA RAJAMANIKKAM

First Respondent

BALAMBIKAI RAJAMANIKKAM

Second Respondent

Application for special leave to appeal

GLEESON CJ

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 JUNE, 2001, AT 10.09 AM

Copyright in the High Court of Australia

MR J. BASTEN, QC: If the Court pleases, I appear for the applicant. (instructed by the Australian Government Solicitor)

MR T.A. GAME, SC: If the Court pleases, I appear for the respondent with MR N.C. POYNDER. (instructed by Craddock Murray Neumann)

GLEESON CJ: Yes, Mr Basten.

MR BASTEN: Your Honours, in the judgments in Yusuf handed down yesterday, this Court affirmed the basic principle that judicial review does not expose to reconsideration in a court the general fact-finding processes of the Tribunal. That was in a context where the challenge was based on a suggested failure of the Tribunal to find material facts. The present case involves a direct attack on the fact-finding exercise undertaken by the Tribunal and the reasons given for its actual findings.

As is often the case, the respondent needed to establish persecution in the past in order to invoke a real risk of persecution on a Convention ground if he were to be returned to Sri Lanka. The Tribunal did not believe his claims in relation to that event. I should say that his claim centred relevantly for present purposes on a supposed arrest by the government authorities in April 1996. The Tribunal did not believe his claims in relation to that event and the surrounding circumstances. It explained its conclusion by referring to eight aspects of his evidence which it found to be unconvincing.

The Full Court accepted that one and a half of those aspects could be described as particular facts which did not exist. There was no evidence tendered before the Federal Court to prove that he was arrested. Before turning to the legal principles, may I illustrate the manner in which the Full Court dealt with the factual questions by reference to the fifth factor which they held was one which did not exist. The matter is dealt with, your Honours, at pages 94 to 95 in the application book at paragraph 37 of the judgment. The particular supposed fact was actually an inference drawn by the Tribunal from undisputed evidence given by the respondent, namely that which appears at line 50 on page 94. He was:

a "Jaffna Tamil who had moved from Jaffna recently".

The inference, with respect, was not a particular fact and the inference did exist. It was never suggested that it was not drawn. The basis for the inference was a claim that the respondent had moved from Jaffna recently. He said precisely that, although he also said other things. It is simply not possible, with respect, to identify this as a particular fact which did not exist for the purposes of the statutory provision.

The other aspect which was said to be a particular fact which did not exist is set out at paragraph 28. The fact in question was a denial by the respondent that the Sri Lankan government had taken over control of a place known as Point Pedro. The Full Court decided that the Tribunal had misread a word in a departmental interview. That appears in a passage at page 50 of the application book at line 33.

GAUDRON J: But again this is a case, is it not, where special leave would not be granted just because the Federal Court misconstrued or misunderstood?

MR BASTEN: No.

GAUDRON J: There has to be a more fundamental point of principle in this case, has there not?

MR BASTEN: Undoubtedly, your Honour. What I am really saying and what I have said in the written submission - I was simply putting the factual background against which I wish to put this submission - is that when one comes to consider the operation of 476(1)(g) of the Migration Act as restricted by subsection (4)(b), one needs to establish that there was no evidence to justify the making of the decision.

GAUDRON J: One has to identify the decision.

MR BASTEN: One must identify the decision.

GAUDRON J: And the finding about credit would not, prima facie, seem to be the - - -

MR BASTEN: We would say that is not the decision. The decision is the failure to be satisfied that the person had a well-founded fear of persecution if returned.

GAUDRON J: On that view, however, there is really some difficulty giving ground (g) any work to do in refugee cases, is there not?

MR BASTEN: Your Honour, there may be difficulty in giving any ground to it to do in a case where a negative decision is made. That is perhaps reflected by the terms of (4)(a) which talks about a particular decision being made "only if a particular matter was established". That would obviously only be the case where the decision was a positive satisfaction.

Your Honours, our first proposition, and perhaps the broadest proposition, is that that is the correct interpretation of 476(1)(g), but we do not need to go that far in order to establish that there was error in the way that the Full Court dealt with this matter because if in a particular case let it be supposed that one can find absence of evidence of a failure of satisfaction, then it must be a case in which under (4)(b) the decision was based "on the existence of a particular fact, and that fact did not exist."

We still do not get to the case where we have a credibility finding and even if a credibility finding could be said to be a particular fact, it is not the case that there was no support for that finding here. There were, as it were, six and a half pillars left to support that finding which were found not to be erroneous by the Full Court. In that circumstance, we say that the way in which the Full Court dealt with this matter can only be seen to demonstrate a misconception of the operation of the two provisions read together in the Act.

That in essence is the legal analysis. I was merely going to take your Honours to the other element in the pillar but, if your Honours are conversant with the way the Full Court dealt with the matter, I need not trouble your Honours in that regard.

GAUDRON J: Perhaps you could look at paragraph 4 of your reply, Mr Basten. Could I assume that were special leave granted and were the Minister successful in the appeal, there would at least be time for the Minister to consider those other questions before any action was taken in respect of the liberty of the respondents?

MR BASTEN: I think your Honours could. It has happened before.

GAUDRON J: There does not seem to be such provision in the Act.

MR BASTEN: No.

GAUDRON J: Can you tell me how it works?

MR BASTEN: Might I seek instructions on that, your Honour? I am not sure whether - - -

GAUDRON J: Otherwise, it does not seem to me that there is any relevance in that paragraph 4.

MR BASTEN: I am just saying that it has been done, your Honour. This has been the outcome in particular cases. The mechanism by which - perhaps I should say this. The respondents are here as persons who are not in detention. They came lawfully to the country. They have bridging visas which allow them to remain in the country while the legislation is completed. Consideration in relation to those matters could be given at any time.

GAUDRON J: That also is a worry because, if they were given at any time, there may well not be any controversy left between the parties.

MR BASTEN: All I can say, your Honour, is that there is no - - -

GAUDRON J: Perhaps you had better get those instructions.

MR BASTEN: Your Honours, I am instructed that it works like this: there is provision for a bridging visa in relation to a 417 application which would allow the people to remain while it was considered so long as they have not already made a 417 application. In other words, that bridging visa is available only on the first occasion. So far as I am aware, that would be available in this case because they have not made that application. So that that is how they would stay in Australia while that matter were considered by the Minister. My friend says they cannot get Medicare on a bridging visa but I do not dispute that. I think that may be all I can - - -

GAUDRON J: But when would that bridging visa expire if it were - - -

MR BASTEN: When the decision were made on the - - -

GAUDRON J: That is what I am concerned about, you see.

MR BASTEN: If there were a legal challenge to that decision, then the bridging visa would continue.

GAUDRON J: No, there can be no - - -

MR BASTEN: All I say there, your Honour, is that there is power to - - -

GAUDRON J: What is a 417, I am sorry?

MR BASTEN: I am sorry. I have not given your Honours a copy of it, I do not think. It allows the Minister to make a decision more favourable to the applicant than the Tribunal.

GAUDRON J: We are in a real catch-22 situation here, you see, are we not? This is why I am concerned about this paragraph. If the Minister did make a more favourable decision, then there would be no controversy between the parties.

MR BASTEN: Yes, that is the case in every one of these matters, your Honour. It is always there.

GAUDRON J: Yes, but let us look at this in terms of this Court's function. The appeal must then fall away, it would seem to me.

MR BASTEN: Yes.

GAUDRON J: So let us assume that none of that is done until the matter is disposed of by this Court. Where then is the opportunity for the Minister to consider acting in the manner you have advanced as a reason why we should not accede to the respondents' claims?

MR BASTEN: At the moment the Tribunal decision does not stand. If this Court were to overturn the decision of the Full Court, then there would be, as it were, a final decision of the Tribunal. At that stage the Minister would be able to consider, substituting for that decision, his own more favourable decision, at that stage the bridging visa would be available to the respondents if they sought that visa. It would not arise, as I understand the practice at any event, before a final determination has been made by the courts in relation to the validity of the Tribunal decision.

GAUDRON J: So there would, in fact, be time?

MR BASTEN: Yes.

GLEESON CJ: Which would be secured by an application for a bridging visa in the event that the appeal were allowed?

MR BASTEN: And an application for exercise of that power.

GAUDRON J: And that application could be made the day before judgment was delivered, as it were.

MR BASTEN: Yes, or the day after.

GAUDRON J: The day after would be too late, would it not?

MR BASTEN: No, I do not think so, your Honour, because I do not think the bridging visa which is currently in operation terminates on the date of judgment. I might need to get some instructions. I know there is no appeal from this Court but, in fact, they are in uniform form and expire 28 days after the date of the judgment of a court.

GAUDRON J: Thank you.

GLEESON CJ: Thank you. Yes, Mr Game.

MR GAME: Your Honours, just leading on from that exchange, we would raise the question whether or not this is an appropriate vehicle, given that there are, according to the applicant, dozens, if not more, cases raising this question in the - - -

GLEESON CJ: That is a matter of concern. Presumably, having regard to the nature of the issue that the applicant wants to raise, any case will be highly fact-specific because that is what it is about.

MR GAME: Yes, of course, your Honour.

GLEESON CJ: It is about whether the way the Federal Court is interpreting the "no evidence" ground is in accordance with the legislation.

MR GAME: Yes, your Honour, we accept that. Just with respect to whether or not this is an appropriate vehicle, we do say that this case is both highly specific and it involves two 80-year-olds in ill health and there really are plenty of other cases by which this issue could be ventilated in this Court. Section 35A of the Judiciary Act is wide in its scope and it speaks of the interests of the administration of justice generally in subparagraph (b), and we would submit that that is an appropriate consideration in the circumstances of this particular case, particularly since the applicant is, as it were, indicating that there is a likelihood or a possibility that a particular view will be taken about section 417 in due course, or at least canvasses the possibility.

With respect to the substance of the application, in our submission, this is really an uncontroversial application of the decision in Curragh v Daniel. The particular fact which was found not to exist in Curragh was a finding about whether or not Curragh could have a later delivery date for particular goods. That was not the ultimate question under the customs legislation. That was the fact upon which the decision was said to be based. In this particular case the Tribunal found - and it is at page 17 of the application book - that it had a number of difficulties with the applicant's evidence, which in the end tells strongly against the applicant's credibility.

The decision is a decision under section 65(2) that the Minister is not satisfied of the criterion and it is a decision to refuse a visa, but it is a decision which is based on credibility. If you chop down the argument at that point, then section 476(1)(g), in our submission, would have no work to do at all. The credibility finding in this case was based on a combination of facts. Two facts less than eight may be critical. In Curragh itself it was held that the reason does not have to be a predominant reason for the decision. So two facts wrong may be critical.

The facts in this case are facts and they are facts that did not exist. They are in the form of prior inconsistent statements and it has never been doubted in law that prior inconsistent statements are facts. In effect, the Tribunal thought that it had caught the applicant out for telling two lies to the department which sought to advance his case, but those statements were never made to the Tribunal. They were the fact that he denied to the department that Point Pedro had been taken over by the government and that he had claimed that he was a newcomer to Trincomalee, both of which claims he did not make.

Those are particular facts which did not exist and the decision was made in reliance upon them. If you cut down the relief in section 476, I should say not only must this application seek to strike at Curragh, it really seeks to strike at the decision of Chief Justice Mason in Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321. If one turns to page 357 of Bond, which was relied upon in Curragh, we see at the bottom of that page:

The effect of s 5(3) is to limit severely the area of operation of the ground of review in s 5(1)(h). If we put to one side the situation to which par (b) is directed (proof of the non-existence of a fact critical to the making of the decision) -

and that is how (b) is construed -

the opening part of par (a) restricts the "no evidence" ground to decisions in respect of which the decision-maker was required by law to reach that decision only if a particular matter was established.

That is (a). Then it goes on to say further down that consideration is given as to limiting the provision really in the way in which Mr Basten puts. Then at about point 4 on that page the former Chief Justice said:

However, such a result would verge upon the extreme and would pay scant attention to the traditional common law principle that an absence of evidence to sustain a finding or inference of fact gives rise to an error of law.

If you read back into 476(1)(g) that which Mr Basten would read back into it, that is that you have to also satisfy yourself in a generic sense "that there was no evidence or other material to justify the making of the decision" - - -

GLEESON CJ: What was the decision in this case?

MR GAME: In this application?

GLEESON CJ: Yes.

MR GAME: The decision was a decision that the criteria were not satisfied under section 65(2). The particular criterion was that he satisfy the protection requirements.

GAUDRON J: Or that they were satisfied that the decision-maker was satisfied.

MR GAME: That is right, your Honour, but section 65 refers to a decision that you are satisfied. It also refers to a decision that you are not satisfied and that decision results in you directing that the person be refused a visa. So that is a decision. Then it goes on to say:

Within the area of operation of par (a) it is enough to show an absence of evidence or material from which the decision-maker could reasonably be satisfied that the particular matter was established -

and so forth. So what in effect Chief Justice Mason is doing is giving (a) and (b) real substance beyond no evidence to support the decision which is an error of law. This is why I say that the argument if successful really reduces (g) to a provision that has no practical effect whatsoever. But if I bring into that also the observations made by Justice Gummow in Eshetu, where he speaks of judicial review under section 75(v), he says speaking of 75(v):

It would permit review in cases where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds.

There is really only going to be judicial review under section 75(v) left if section 476(1)(g) is construed in the way in which my friend puts it, because error of law under section 476 has been cut down to a much more limited form of error of law review than it is in the AD(JR) Act. So error of law is gone. Now the Minister is saying no evidence to support the decision goes, so everything is thrown into judicial review under section 75(v) in effect into Wednesbury unreasonableness.

GLEESON CJ: Take a case where an applicant gives an account of alleged events and the Tribunal or a delegate or whoever says, "I don't believe you, full stop. I think you're telling lies". What application to that could 476(1)(g) have?

MR GAME: None.

GLEESON CJ: Now suppose the Tribunal says, "I don't believe you because there's an aspect of your story that is internally contradictory of another aspect of your story". Would section 476(1)(g) have any application?

MR GAME: That depends entirely on whether or not the contradiction that is said to exist did exist. If it can be shown objectively that there was no contradiction, then that would be sufficient. But the Full Court addresses the different situation. I will just find the passage. The centre of the argument is on page 88 as to why a finding of fact upon which a decision as to credibility can be a fact, the non-existence of which a decision is based upon, but then at 89 they go on to say:

It should also be noted that the conclusion of the Tribunal that a visa applicant is not a credible witness may be based upon the impression of the Tribunal having had the benefit of seeing and hearing the evidence . . . it is difficult to conceive of circumstances in which the ground of review in s 476(1)(g) could be made -

In my submission, there is nothing controversial about what I am putting to the Court or what the Full Court decided. It is as simple as this: the Tribunal thought that the Tribunal had caught the applicant out because the applicant had said something different to advance his interests before the department in a number of respects, but we are concerned here with two. An examination of the material shows that he did not, in fact, say to the department what the Tribunal said he said to the department.

GLEESON CJ: Suppose the Tribunal had been right in one case and wrong in the other.

MR GAME: That depends, your Honour, whether or not the decision is based upon it but, because the Tribunal said that it was the combination of factors, that is to say that there are, as it were, eight strands upon which the decision holds and if you take one strand out, the decision might not hold.

GLEESON CJ: Take a simpler case. Suppose that a Tribunal says, "I don't believe you because two aspects of your story are contradicted by facts which I know from other material to exist", and the Tribunal is mistaken as to the existence of one of those other facts but correct as to the existence of the other. How do you apply paragraph (g) to such a case?

MR GAME: If it is the combination of the two, then the decision is based upon it in the sense set out in Curragh. That is to say, it is critical to the decision, or it is at the heart of the decision. The decision is based upon it. As the court said in Curragh, it does not have to be predominant. So it all comes down to how you construe whether the decision is based upon it but, because of the way in which the Tribunal reasoned in this case, the decision is not based upon demeanour or impressions or other lies. The decision is based upon two, we say, identified contradictions which nobody suggests existed.

That would be an error of law were it not for the cut-down version of error of law in 476(1)(e), but now it is being said it does not even come within the error of fact, the facts found not to exist provision, which is why I said a little time ago that, according to the approach taken by Justice Gummow, the whole thing will then be thrown into jurisdictional error in the original jurisdiction of this Court under section 75(v).

GLEESON CJ: So your proposition is that it would be an error of law to form an adverse opinion of a witness' credibility based upon a misunderstanding of the witness' evidence?

MR GAME: Based upon a fact which did not exist.

GLEESON CJ: Or based upon a misunderstanding of the witness evidence or a misunderstanding of some of the other evidence?

MR GAME: Based upon a fact that did not exist, yes, your Honour. That would be an error of law as construed by Chief Justice Mason in ABT v Bond. In fact, an erroneous drawing of inferences was one of the very things identified by Chief Justice Mason in Bond as founding an error of law. So yes, and we would submit so in a strong sense. I am not sure that there is much more that I can put on this - - -

GLEESON CJ: All right. Thank you, Mr Game. Yes, Mr Basten.

MR BASTEN: Your Honours, might I say two things. Firstly, if my friend is right about Bond, one would think that was a good reason to reconsider what his Honour said at least obiter in Bond. Secondly, assuming against my earlier argument as to the broad - - -

GAUDRON J: I suppose there may be a question whether the process of construction that his Honour the Chief Justice engaged in in Bond is permissible under 476.

MR BASTEN: Yes. Bond, of course, was a case in which neither (a) nor (b) of the subsection was relied upon, so it is not directly - - -

GAUDRON J: I know it is obiter but there would seem also to be a question - - -

MR BASTEN: I agree with that, and Justice Gyles has recently suggested that that may need to be addressed in another matter of Rahman which I refer to in the reply. The other point I was going to make, your Honours, was that if one assumes against my broader arguments that the Tribunal had said that its absence of satisfaction was based on a particular fact, namely that the claimant was not arrested in April 1996, because the Tribunal disbelieved his evidence in that regard and assuming again against my argument that that negative fact could be a particular fact which did not exist because he was arrested within (4)(b), there was no evidence put on to suggest that he was arrested. So that on any way one construes these provisions, what the Full Court did was simply an error, we would respectfully submit.

GLEESON CJ: How long would you expect an appeal to last?

MR BASTEN: Perhaps half a day, your Honour.

GAUDRON J: And costs? Do you make the same undertaking as in the last matter?

MR BASTEN: The same undertaking, your Honour, yes. I think we say that in our submissions.

MR GAME: We would actually ask that costs be paid in advance. We have had problems in other cases with payment.

GLEESON CJ: What is that?

MR GAME: We have had problems with the Commonwealth paying us in other cases where these orders have been made.

GLEESON CJ: What do you say about that assertion of fact?

MR BASTEN: It is one which does not exist, your Honour. I do not know. I have no knowledge. There may have been some disputes about the fees.

GLEESON CJ: There is a lot of insolvency in the air at the moment but I did not think it affected your client.

MR BASTEN: Not the Commonwealth anyway, your Honour. I am not sure about my client personally but not the Commonwealth. I do not know of any of these problems. I would have thought the Commonwealth could have been trusted to pay reasonable costs reasonably promptly.

GLEESON CJ: In this matter there will be a grant of special leave to appeal. The grant is conditional upon the applicant paying the costs of the appeal in any event and agreeing not to seek to disturb the orders for costs made in the courts below.

We will now adjourn to reconstitute.

AT 10.42 AM THE MATTER WAS CONCLUDED