Gersten v Minister for Immigration and Multicultural Affairs S177/2000 [2001] HCATrans 483 (2 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S177 of 2000

B e t w e e n -

JOSEPH GERSTEN

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Office of the Registry

Sydney No S78 of 2001

In the matter of -

An application for Writs of Certiorari, Mandamus and Prohibition 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/Prosecutor

GAUDRON ACJ

McHUGH J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 2 OCTOBER 2001, AT 10.15 AM

Copyright in the High Court of Australia

__________________

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MS R.A. PEPPER for the applicant in special leave application S177 of 2000 and for the applicant/prosecutor in S78 of 2001. (instructed by Ron Kessels)

MR P. ROBERTS, SC: If the Court pleases, I appear with my learned friend, MR G.R. KENNETT, for the second respondent and the respondent in the other matter. (instructed by Australian Government Solicitor)

GAUDRON ACJ: Yes. I have a certificate from the Senior Registrar to the effect that she has been informed by the Australian Government Solicitor, Solicitor for the first respondent in the prohibition proceedings, that the first respondent will submit to any order of the Court save as to costs and, accordingly, does not intend to appear at the hearing. I take it both matters can conveniently be heard together. Yes, Mr Jackson.

MR JACKSON: Thank you, your Honours. Your Honours, as is apparent from the material, there are two matters before the Court: the first is the application for special

leave to appeal from the judgment of the Full Court of the Federal Court which appears at page 132. The second is the notice of motion at page 164 directed to the decision of the Refugee Review Tribunal. The decision of that Tribunal appears at page 38. Your Honours, as is apparent from the different form of the two proceedings, the applications for the writs are in relation to a ground which could not be taken or arguably, on our learned friend's argument, could be taken before the Federal Court.

Your Honours, may I go immediately to the central facts and then to the arguments which we seek to advance. Your Honours, could we in that regard note two things first. This is, of course, an unusual case. Folk law would have it that most people want to be refugees to the United States, rather than from it. The second thing, is that the course taken by Justice Katz in this case of himself reviewing the evidence in detail and making observations about it, almost universally adverse to the applicant, and only the relatively late point in his reasons, turning to the actual findings made by the Refugee Review Tribunal, seems unorthodox.

Your Honours, as the several paragraphs of section 476(1) of the Migration Act make apparent enough, the task of the Federal Court is not to engage upon its own fact-finding mission. I will come back to that a little later if I may, but could I go to the essence of the findings made by the - - -

KIRBY J: But your client had put a huge amount of material, thousands and thousands of pages, before his Honour - - -

MR JACKSON: Seven volumes I think, your Honour.

KIRBY J: What was he to do about it? Just ignore it? Why did you put it before him?

MR JACKSON: Your Honour, it was before his Honour as the background to the matter.

KIRBY J: That is all his Honour's description of the facts seems to be. If you put it before him, you have to expect that he will pay some regard to it if it is there.

MR JACKSON: Yes. I accept that the judge was entitled to look at the material. What, however, we would make some complaint about in that regard is the fact that if one goes, for example, to the transcript of proceedings before his Honour, one sees some aspects of the matters in the various volumes that he had that are referred to. One would not have expected, with respect, that his Honour would be entering upon the activity of engaging himself going through the material with a view to arriving at the conclusions which he did without that being a matter on which the parties had addressed or, with respect, to which the parties were invited to address. I do not suggest, your Honour, that the parties did not advert in the hearing before him to some aspects of it. The complaint which we make in passing is that his Honour went significantly beyond that.

KIRBY J: You moved the Full Court that his Honour was disqualified for actual bias.

MR JACKSON: Your Honour, that was an ambitious and no doubt inappropriate - - -

KIRBY J: It certainly was, especially when you could not point to a single aspect of his reasons that indicated actual bias.

MR JACKSON: Your Honour will see that - and I do not suggest that was an appropriate course to take - when the matter came to this Court, that was not pursued beyond the application, I think, for special leave and there is certainly no suggestion of it in any of the submissions that have been made to the Court in writing and there will not be any made orally.

KIRBY J: Wiser hands took control of the matter.

MR JACKSON: Well, your Honour, different perhaps, yes. Your Honours, could I say that a convenient summary of the background may be seen in the reasons of the Full Court. Could I take your Honours to page 112. Your Honours will see commencing at about line 44 and may I just invite your Honours to note the particular passage, it commences at page 112, about line 44 and goes through to page 113, about line 25, that is the introductory part. Your Honours will then see the more lengthy passage of background facts and background to the claims made at page 113, under the heading:

The decision of the Refugee Review Tribunal - Mr Gersten's claims and the background facts

KIRBY J: Do you make any complaint about the factual description of the Full Federal Court?

MR JACKSON: No, your Honour. I think the answer is no. Your Honour, I was going to refer to a particular passage from 113 through to 116, about line 15. Your Honour, their Honours refer in part to facts and in part to claims and I do not think there is any aspect of that that we would dispute.

KIRBY J: I was going to ask a question about a passage on 115 as to whether or not, if the so-called perjury trap or the perjury case came to fruit in a trial for perjury. I assume that in Florida that would in a State court be tried before a jury? Was that revealed in the material before the courts below?

MR JACKSON: Your Honour, I do not think it is revealed. Your Honour, I just cannot give the answer to that, whether it be a jury or a judge. I assume it would be a jury but that may be a large assumption.

KIRBY J: If it were a jury, it would make it pretty hard to contend that a jury of citizens, chosen at random in the United States, would oppress or persecute your client.

MR JACKSON: Your Honour, perhaps there is a question - and I will come to this in just a moment - the issue of persecution, in our submission, is one which is capable of being satisfied by the taking of action which, in itself, can be seen to be within a legal system.

KIRBY J: As you say, it is an unusual contention you put before the Court.

MR JACKSON: Your Honour, no doubt that is so, but having said that, one needs to be judged in the end on its merits, no doubt, with respect.

KIRBY J: Well, the important issue in the case is not just your client but the issue of the so-called irrational reasoning, but anyway, I will not interrupt again for a while. No guarantees, but I will try not to.

MR JACKSON: Your Honour, I had assumed it was a matter of imperfect obligation. But, your Honours, could I say that if one goes from that passage in the reasoning of the Full Court to the essence of the reasoning of the Refugee Review Tribunal - your Honours will see that commencing at page 47 - what your Honours will see is a heading "FINDINGS" at page 47 and the way in which the first paragraph under that heading is put is to note various contentions on behalf of the applicant and your Honours will see those noted throughout that paragraph. Then one sees at about line 35 in the next paragraph the way it is put is:

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

It then goes on, in a passage which goes through from page 47 about line 40 through to page 49 about line 35, to hold that the applicant was not dealt with by reason of his political opinions but rather, your Honours, because he refused to answer questions as ordered by the Florida court.

Your Honours will see that referred to on a number of occasions. Could I refer, particularly, your Honours, page 47, the paragraph commencing about line 39 and then the two paragraphs on page 48 commencing line 16 through to line 31. Your Honours will see, about line 41 on page 48, the paragraph commencing there and, essentially, from there through to page 49 about line 35. Now, your Honours will see that the view taken there was, essentially, that the applicant was the author of his own misfortune. May I come back to that in just a moment?

Could I first go, your Honours, to the other aspect of the Tribunal's determination immediately relevant? That is the view adopted by the Tribunal as to what was capable of constituting persecution in terms of the definition of "refugee" in the Convention. Your Honours, first of all, at page 49, commencing at line 31, your Honours will see the Tribunal noted that he "could be returned to prison on this contempt charge" if he returned to the United States. Then, secondly, the Tribunal treated a large number of matters, prima facie highly disadvantageous to a person, as not constituting persecution.

Your Honours can see those, first of all, at page 49, line 38, through to page 50, line 11, "the cost and inconvenience of defending a perjury charge". Your Honours will see that at the bottom of page 49. At the top of page 11:

not satisfied the cost and inconvenience of defending a perjury charge would cause the Applicant such serious harm as to amount to persecution -

and then, your Honours, we then go to the top of the next page.

The second feature, your Honours, was the pattern of behaviour which is referred to at page 52 line 35 and in particular about line 42:

The Tribunal finds that, even if there is a pattern of behaviour calculated to harm the Applicant, it is a pattern in which the harm caused stops short of persecution. If there is a pattern, it is a pattern of investigation, bad publicity, inconvenience, and expense, but not of persecution. His fundamental human rights have not been interfered with.

Your Honours, that is page 52 about line 42. Then, your Honours, that goes over to the top of the next page where it was noted that he was:

investigated by the State Attorney and her office and hounded by the media. It may be that this was done in bad faith, and for reasons of the Applicant's political opinion. He suffered political embarrassment, and his chances of re-election to public office have been greatly diminished. The dominant media organisation in Miami ridicules him, and attempts to make him a figure of fun. His personal relationships suffered and he is not estranged from his family.

The third feature, your Honours, was page 53 line 19 through to line 34 and that refers to disbarment.

KIRBY J: That was only for a year, was it? I thought I saw in one of the submissions, but I thought the respondent's submissions said he was disbarred for a year from a date in 1998.

MR JACKSON: Well, I think, your Honour, at the moment there is a disbarment for a period of a year from, I think, a date of, in effect, purging contempt. I will have that checked and give your Honour an exact reference. But your Honours will see at page 53 about line 30 it was said:

In any event, the Tribunal does not consider that being denied the opportunity to practise law would amount to persecution, even if it occurred for Convention reasons. The Applicant is a man of much experience and skill, and the Tribunal is not satisfied that being disbarred would result in him being unable to earn a living.

And, your Honours, the next paragraph it was said:

Nor is the Tribunal satisfied that being subject to bad faith investigations of some business dealings would prevent the Applicant from earning a living. He could work as an employee, or seek the protection of the courts for his rights.

And then, your Honours, the conclusion at page 53 line 43:

The Tribunal is not satisfied that the Applicant has suffered persecution in the past. He has been put to inconvenience and expense, and his good name has been damaged. The Tribunal notes that the Applicant is not prevented from expressing his political opinions. His liberty has not been threatened, except when he flouts the authority of the courts. He has not been denied the opportunity to work and earn a living. He has not been denied the protection of the courts and Constitution of the United States. He may have suffered a detriment or disadvantage compared to his previous privileged position, for instance he is no longer an elected political, but . . . he is not seriously disadvantaged compared to his fellow countrymen.

Now, your Honours, those are the two aspects to which we seek to direct attention and may I return to the first of them, namely that the Tribunal held that his difficulties were caused by his failing to answer the questions which Judge Dean had ruled he should answer. Your Honours, one works, of course, on the assumption that the courts of Florida applied the law in accordance with the facts before them as they saw them. But, your Honours, it does not follow that to set in motion and to prosecute court proceedings against persons may not be in order to persecute people for a reason "of race, religion, nationality, membership of a particular social group or political opinion", to use the expression deriving from the provision of the Convention.

Your Honours will see the provision of the Convention set out at the commencement of the Tribunal's reasons. I think we have given your Honours copies of the Convention. In fact, one might think that is one of the well-established ways of persecution, to use the laws selectively against persons in circumstances where otherwise they might not be employed. If I could give two examples and then come to some observations made by the Court in relation to that. The first is, to take the simplest example: if a person is for a Convention reason in a situation where his or her every activity is observed, the person drives a vehicle and is followed, every trivial breach of the traffic rules results in a charge where other persons would not be charged. So too is the example which appears at page 175, to which we referred in the - - -

KIRBY J: There is no suggestion your client was continuously followed or that the matters alleged against him are trivial.

MR JACKSON: Your Honour, I am sorry, I was giving that by way of example. I was simply seeking to make the proposition that even though someone does something that might amount, or might reasonably be thought to amount, to a breach of a law of general application, the fact that that person is the subject of charges in relation to it may reflect the fact that there is some persecution against the person.

HAYNE J: The example you give being one of differential treatment.

MR JACKSON: Yes.

HAYNE J: In the earlier proposition you advanced that setting in motion court processes may be persecution for a Convention reason also, I think, had the tail setting in motion court processes where others would not be prosecuted in like case.

MR JACKSON: Yes. Your Honour, we give an example at page 175 in the course of an earlier argument in the proceedings, about line 32, in the paragraph commencing there. There are some countries not far away where events of that kind are suggested to have occurred. That that proposition is one of no especial novelty can be seen in some observations of the Court in Chen v Minister for Immigration, [2000] HCA 19; (2000) 201 CLR 293 in the joint reasons of Chief Justice Gleeson and your Honours Justices Gaudron, Gummow and Hayne in paragraph 21 at page 301. Your Honours say in the second sentence in paragraph 21:

Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination.

Your Honour Justice Kirby in the same case at page 316, paragraph 72. Your Honour referred particularly at the top of page 317:

Discrimination may in particular circumstances fall most heavily on racial minorities, on women subjected to sexual abuse, on religious minorities accused of apostasy or on homosexuals. It may be reinforced by laws or practices of apparently general application. The mere fact that the law is a criminal law or one of general application in a particular society does not withdraw from those who have a well-founded fear or being persecuted, the protection of the Convention definition.

Your Honour Justice McHugh referred to that also in Chan v The Minister (1989) 169 CLR 379 at page 429, where the last paragraph on the page, your Honour said:

The term "persecuted" is not defined by the Convention or the Protocol. But not every threat of harm to a person or interference with his or her rights for reasons . . . constitutes "being persecuted". The notion of persecution involves selective harassment.

Your Honour went on to discuss that through that paragraph, and on the next page, about the fourth line on the page, said:

Nor is it a necessary element of "persecution" that the individual should be the victim of a series of acts. A single act of oppression may suffice.

Your Honour went on a little further to about halfway down the page.

Your Honours, could I go then to the course which was taken by the Tribunal in this case. If your Honours would go back for a moment to page 47 - - -

KIRBY J: It does seem difficult to suggest though that the court system of a State the United States which, one would think, on the face of things, is at least as independent as courts here, will allow themselves to become an instrument of persecution. One can accept that in some countries and in some circumstances, but it just seems difficult to say that of the United States in this day and age.

MR JACKSON: Your Honour, could I say this. One is dealing with - - -

KIRBY J: I suppose I am merely reflecting what you began with.

MR JACKSON: That is so, your Honour, with respect, because one does need to deal with the individual circumstance. Your Honour, it is not difficult to find many cases - if one leaves aside altogether immigration questions, it is not very difficult to find circumstances where court procedures, be it in this country or in other countries, are instituted with a view, of course, to obtaining the result that the court procedures would bring about but for reasons in addition to, or reasons that are not the principal reasons that should motivate that happening. That is why one has, for example, provisions for abuse of process.

McHUGH J: Yes, but is that really an answer to what Justice Kirby is putting to you? Is not the very basis of this jurisprudence that a person must be outside the country of residence or birth, or whatever it may be, because either the government of that country is persecuting him, or that the government is powerless or just will not stop the acts of persecution? So that in this particular case you cannot confine yourself to the conduct of a couple of individuals, or even a group of individuals in Florida. Surely you have to look at the total context of the United States legal system, including the rights under the Constitution, the existence of the federal Court system, and the existence of the United States Supreme Court system.

MR JACKSON: Well, your Honour, could I say in relation to that two things. The first is at the lower level of it, if I could put it that way. Your Honour will see that there was material before the Tribunal which dealt with the way in which the applicant had been treated by the Florida courts. Your Honour will see that referred to at page 50 - it commences at about line 16 - referring to Ms Calzon, a United States lawyer, who dealt with the way in which the case had been dealt with. The view taken, in the end, was against that - that is at page 51 line 31 - and your Honours will see that it was accepted that Ms Calzon's views were "genuine" - that is page 51 line 27 - and caused her "some distress" because of the way that she was.....a lawyer in Florida. But, your Honour, the point I am seeking - - -

McHUGH J: But even assuming that there was some injustice in the State system - and we know as a matter of history that there were in some of the southern State courts at earlier times. There is the federal system. What is this, is this part of the Fifth Circuit? I cannot remember, I think it is probably part of the Fifth Circuit, is it? You have the United States Federal Circuit Court system there to protect - - -

KIRBY J: And your client has applied to them unsuccessfully.

MR JACKSON: Indeed, your Honour. Your Honour, may I say with respect, all that, with respect, is right in the sense that he is in a situation where he can endeavour to obtain the best out of the United States legal system. Having said that, however - - -

HAYNE J: Including challenging the process as being an abuse?

MR JACKSON: Well, your Honour, he is in the position where he may or may not be able to do it at this point. I put it in that way - - -

HAYNE J: But it was open to him at some points of the process, was it not, to challenge the process as being an abuse - - -

MR JACKSON: Yes, your Honour.

HAYNE J: - - - and to resort if needs be to the federal system, in addition to resort to the State system, to make good that claim?

KIRBY J: He did.

MR JACKSON: I am sorry, your Honour, he has endeavoured to do that and your Honours will see that the proceedings have been unsuccessful in those courts. But the point we would seek to make about it, your Honours, is that he has been put in the situation of having to seek to obtain those forms of relief because of the course that was taken in relation to him in the first place. Your Honours, the point I am seeking to make about that is that the view taken by the Tribunal and the approach taken by the Tribunal was one that did not give consideration, in our submission, to the relationship between his being in that situation and the events which brought it about.

Now, it may be, your Honours, that if the matter goes back to the Tribunal, that a different view would be taken. It may be the same view would be taken. But, in our submission, the issue is one which should have been dealt with by the Tribunal. Your Honours, that is the point we would seek to make about it and - - -

HAYNE J: Because the claim made was one founded in differential treatment of him, was it?

MR JACKSON: Yes, your Honour.

HAYNE J: And where do we find the claim of differential treatment reflected in the way the Tribunal dealt with it otherwise than by assertions of motive to those who instituted the proceedings against the applicant?

MR JACKSON: Your Honour, one can see it in, for example - and this may or may not be a complete response to your Honour, at page 48, line 16.

HAYNE J: I understand that a claim was made that, "Those who have instituted the series of proceedings do so for inappropriate and base motives founded in my politics", but do you have to go further than that and say, "Not only were they ill motivated, I was treated differentially"?

MR JACKSON: Your Honour, may I say to that, assuming that I have to, if one looks at page 47 in the first paragraph under the heading "FINDINGS", your Honours will see in the fourth line:

He cites examples of what he sees as bad faith. They included the timing of court hearings to coincide with election day, media leaks to maximize the embarrassment to the Applicant, assistance given by the Attorney's office in steps taken to disbar the Applicant -

and your Honour will see the remainder of it there. Your Honour, that, in our submission, would answer that.

CALLINAN J: Mr Jackson, what about the "pre-charge warrant". That would be a court process, would it?

MR JACKSON: Yes, your Honour. Your Honour is talking about the one-man grand jury?

CALLINAN J: No. No, I am talking about what appears on pages 25 and 26 in your client's statement in which he says that it was unique for a "pre-charge warrant" to be obtained for testing of samples of his hair to see whether he was a drug user. He said he knows of no other case. That would be part of the curial process. The court would grant the warrant, I take it?

MR JACKSON: Yes, your Honour.

CALLINAN J: Is that contradicted in any way, what he said there?

MR JACKSON: I do not think so, your Honour. I think that is so. I say that I do not think so. There was a fair amount of material not in the books, of course, but I think the answer is that it was not, your Honour.

CALLINAN J: Yes.

MR JACKSON: Your Honour, in our submission, there was material showing he was certainly treated differently and adversely. To the extent to which it would be necessary to show that he is treated differently, your Honours, no doubt in some circumstances all persons who satisfy a particular category are treated differently in Convention terms if they belong to a particular nationality, et cetera. But where one is speaking about political opinions and treatment of that kind, inevitably it is likely to be something that requires some different treatment.

Your Honours, the point we would seek to make is that if one looks at page 47 and goes through the way in which the matter was dealt with by the Tribunal in the several succeeding pages and, in particular, your Honours, page 48, line 24, the essence of the reasoning and it is repeated on a number of occasions, is that there is simply no consideration of the question whether the applicant was placed in the position of having to comply with Judge Dean's order or be liable for contempt by reason of his political opinion. The view taken is simply - your Honours will see it at page 48, line 25, he:

was jailed for flouting the authority of Judge Dean's court -

and, your Honours, that is it.

KIRBY J: Is the sort of analogy you are suggesting that, take during the Vietnam War and the decision of this Court in Ex parte White, I think it was, that you had to be a conscientious objector against every war and all wars, an Australian applies to Sweden and says, "I am being persecuted. It is true the legal system of Australia is perfectly honest and independent but the law as interpreted prevents me from exercising my conscientious belief and I'm being persecuted for my political persuasion. Give me refuge under the Convention." Now, is that the sort of thing you are trying to suggest that this is this type of case?

MR JACKSON: It is possible, your Honour, yes. When I say possible, I mean, it would, prima facie, fit within the description, yes.

KIRBY J: The problem I have though, is that if your theory is right, every politician in the United States who is prosecuted for perjury or for some crime can rush out here and say, "I am being persecuted for my political persuasion because I am a politician and, really, the real reason behind this prosecution is that I am a politician and they have control of the prosecution branch and, therefore, I have to be admitted as a refugee". It does not sound very attractive.

MR JACKSON: Your Honour, with respect, that assumes that, (a), everyone rushes here, and (b), that they are all admitted. But what we submit is that there used to be a proper hearing of the application. Whether the application succeeds is another question. Your Honours, the fact that it is the United States rather than the United Kingdom or someone from Northern Ireland, or wherever one chooses, does not, in the end, matter. It may affect the result but it does not matter in relation to there being an appropriate hearing.

KIRBY J: You are here basically to argue what you say is an important point of principle, that is, irrational, illogical argumentation in administrative reasons, and that that, as I see it, is the most important point of principle that is raised by the case and, in a sense, the merits of your client's case are irrelevant to whether or not that principle is good or bad.

MR JACKSON: Your Honour, no doubt the merits are relevant to it but, no doubt, equally, he has an interest in the matter. Could I say, in relation to what I have dealt with so far, that that is the essence of where we would say the error lies, if one puts in a causation sense, that there was no taking into account of the fact that the charging and dealing with the applicant was something which was, itself, part of, or a consequence of, the persecution.

GAUDRON ACJ: What was the ground of review in the Federal Court to which that argument relates?

MR JACKSON: Your Honour, it was, I think, section 476(1)(e), I think, namely:

that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law . . . to the facts as found by the person who made the decision - - -

HAYNE J: Do you mind restating it again? I know you have now stated it several times, Mr Jackson, but I just need to grasp it a little more tightly.

MR JACKSON: Yes, your Honour. What we would seek to say is that - your Honour, may I put it in this way? First, the approach taken by the Tribunal was simply to say that because the applicant was gaoled for flouting the authority of the court in refusing to answer questions, that was the end of the matter, that was the cause. That is the first thing, your Honour.

The Tribunal, in our submission, then did not attempt to relate that to the motivation of the political opponents, a matter which it assumed, for present purposes, in his favour. The Tribunal was in error, in our submission, in not appreciating that even though the procedures of the United States courts might be regularly invoked and applied, so to invoke them and apply them could be an element of the persecution of which he complained.

HAYNE J: Thank you.

GAUDRON ACJ: Because it was selective?

MR JACKSON: Yes, your Honour. The basis of selection, of course, being the political opinion.

GAUDRON ACJ: Yes.

KIRBY J: Now that was rejected by Judge Dean, was it not?

MR JACKSON: Yes, your Honour. Your Honour, it was in a sense - - -

KIRBY J: And your client makes no complaint that Judge Dean was in any way biased or acted otherwise than as a judge?

MR JACKSON: No, your Honour, we do not suggest that. When I say that was rejected by Judge Dean - I am going to come to the facts of that in a little more detail in a moment, because what your Honour is saying, with respect, really picks up our learned friend's submission that it does not leave out of account the political aspects that were mentioned before Judge Dean. In the end her Honour said, "Well, I don't think there is bad faith", but it is not quite as simple as that, with respect.

GAUDRON ACJ: Did Judge Dean deal with the selective nature of the process?

MR JACKSON: Well, your Honour, one sees it referred to - - -

CALLINAN J: At page 32, is it not, first paragraph? Is that the selective dealing by Judge Dean? It deals with the selectivity of the process. Is that not her Honour's decision at page - - -

MR JACKSON: It is, your Honour, it is the order for contempt. I just could not see the passage your Honour was referring to, I am sorry.

CALLINAN J: "While this relief was unprecedented", the third line. I wondered if I had misread that.

MR JACKSON: Yes, your Honour. Yes, that is so. I thought your Honour was referring to a different thing, yes. Her Honour refers to the fact that the - that what her Honour was doing though, with respect, was not, I think, saying that the taking of the pre-filing statement was selective, but rather that the course that had been adopted of reviewing the questions was.

CALLINAN J: Yes, that is why I asked whether I was misreading it, I think, yes.

MR JACKSON: So that was selective but in our favour. Your Honours, in the material before the court, what took place before Judge Dean is, in effect, summarised, or a view of it is put, in the reasons for judgment of Justice Katz. Your Honours will see that commencing at, I think, page 67. What Judge Dean said concludes at page 69 in paragraph 43 lines 20 to 22, where his Honour said:

she rejected it, saying that she stood by the finding which she had made in January that "there was no bad faith here".

However, if one looks at the passage which commences at page 67 about line 40, your Honours will see Mr Gersten's attorney then quoted, saying:

They have no evidence. So now, they want to submarine [sic] or subvert his political chances on this day -

because that was the day of the election, so there was certainly a reference to political chances there. His Honour then goes on in paragraph 38 to say:

The obvious inference is that the persons being referred to in that submission were those who had been referred to in the earlier disqualification proceedings -

His Honour then makes various observations about it and then says on page 68 about line 13:

They would procure his questioning in the car theft investigation on the day before or the day of the election. They would then ensure that adverse publicity resulted merely from the fact of that questioning, which adverse publicity would prejudice Mr Gersten's chances of election.

His Honour then goes on to say:

I note that it was not suggested against Messrs Gregorie and Havens that they were seeking to prejudice Mr Gersten's chances of election because of any political opinions which he held or was thought to hold, but merely because they genuinely believes him guilty . . . and hoped that the fact of his running for office at that time would provide the occasion -

Your Honours, that is the judge saying what he assumes was the effect of it not being suggested, but one sees that the context in which this occurred was on election day and the particular reference had been made to them endeavouring to subvert his political chances. Your Honours will see a reference again - - -

KIRBY J: Election day would be too late for the print media, but I suppose not too late for the electronic media to influence voters in the actual election.

MR JACKSON: Yes, on the day before or the day of the election, your Honour will see referred to at page 68, about line 14. Your Honour, no doubt the electronic media would be there, and it would be all over the television and radio. Instead of Joe Gersten going around the places where they punch the holes in the cards, he would be answering questions before Judge Dean.

KIRBY J: On the other hand, your client was constantly saying, "I reported a car theft, and that is all you can investigate, and everything else is irrelevant". Where as they were saying, "We now have later information and that information suggests that you have been involved in drug use and we want to ask you questions about that", and he said, "That is irrelevant, and you are acting in bad faith".

It then goes to judges in the US system and they say "no bad faith". It is pretty hard to persuade an Australian court that there is then bad faith, or at least that such bad faith that it is to be taken as persecution.

MR JACKSON: Your Honour, so far as the application was concerned, it may be that in the end there would be significant difficulties in persuading, for example, a Refugee Review Tribunal that the right result was that there was a refugee. However, your Honours, it would be appropriate, in our submission, for the consideration of that issue to be dealt with by the Tribunal. The problem is in the particular case that what the Tribunal has done is simply to say, "The reason for your problem is because you would not answer the questions". That is the short, simple answer. He would not answer the questions without considering whether the circumstances bringing about the need to answer the questions was one motivated by political opinion.

McHUGH J: Speaking for myself, on the issue of discretion, at some stage or other I want to hear from you on the question as to whether or not these applications should not be dismissed on the basis that there is just simply no evidence that the government of the United States is either persecuting your client or has in force a legal system which permits him to be persecuted. It cannot possibly be the law that a person can be a refugee or is being persecuted for the purpose of the Convention simply because some rogue policeman or judicial officer persecutes a person. The law is very clear that it has to be the government of the country that either does the persecution or fails to take steps to prevent the persecution. I cannot see a tittle of evidence so far in this case that the United States as a government has failed in any way in that respect.

MR JACKSON: Your Honour, there was material before the Tribunal indicating that the United States was itself - and the detail of it is not in the material - engaged in endeavouring to cause difficulties to him here. I will give your Honours a reference to that in just a moment. It is put in a relatively short form in the Tribunal's reasons.

KIRBY J: They want him back to face his perjury charges.

MR JACKSON: It was not just that, your Honour. It is referred to at page 52, line 35. Your Honours will see there is a reference, albeit brief:

The Tribunal notes the submission that the evidence discloses that the Applicant has been subject to a pattern of behaviour from his enemies which has continued even since he has been in Australia, and that pattern indicates a determination to do the Applicant harm - - -

HAYNE J: Yes, but it is the preceding paragraph that is the real bite, is it not:

not satisfied that there is any real chance that the Applicant would be unfairly convicted of any other charge, or unfairly denied the usual protection afford to United States citizens.

MR JACKSON: Your Honour, there is no doubt that the Tribunal was of that view, but the point we would seek to make is the one - I say two things about it. The first was that at the time of this hearing Ms Reno was the Attorney-General in the United States and she had been formerly from Florida and was on the other side of politics from him. The other thing - - -

McHUGH J: She was a member of the same party, was she, but a different faction?

MR JACKSON: Your Honour, one - - -

KIRBY J: Nothing is more bitter than factional disputes, at least in Australia.

HAYNE J: Perhaps you could explain to us in two minutes the intricacies of faction disputes of the Democratic Party.

MR JACKSON: Your Honour, the Democratic Party, whatever it might be now, below the Mason-Dixon line, as it were, was a broad Church, shall we say. The point about it we would seek to say is this, that what your Honour put to me may be right in the end, that there would be circumstances where there would be no difficulty for him but one should not, in our submission, have a situation where you just have the member of the Tribunal saying, "I note this, I note that", without there ever being any determination of any of these questions and without him turning his mind to the question whether the result that had been arrived at was one that was brought about by the Convention reasons.

KIRBY J: But there is a discretion issue, because it is raised directly by the respondent who says that the court should refuse the constitutional writs because the court can take notice of the fact that the political situation has changed, Mrs Reno has gone in and out of federal office and things are completely different and, therefore, that that discretionary factor should be taken into account.

MR JACKSON: Well, your Honours could no doubt note, even with the Mickelberg restrictions, that there has been a change of government in the United States and that in consequence that the Attorney-General has changed. But having said that, there is nothing to indicate that the contempt proceedings do not remain in being. There is nothing to indicate that there would be any change in relation to those.

HAYNE J: Can I just understand that proposition against what appears at lines 24 to 27 or thereabouts on 52. You have a finding of fact there, it seems, or lack of satisfaction, that there is any real chance of unfair conviction on a charge of perjury.

MR JACKSON: Well, though, your Honour, that is because your Honour will see the words interpolated in line 25 "for reasons of his political opinion", and that goes back to the passages commencing at, I think, page 47, where the distinction is drawn between failing to answer the questions which is treated as the cause, on the one hand, and the events leading to that, on the other. Your Honour, that reference - - -

HAYNE J: But the complaint that is made is, is it, that there is a politically motivated creation of a set of circumstances in which there is compulsion to answer questions?

MR JACKSON: Yes, your Honour.

HAYNE J: If he answers those questions untruthfully, he will be dealt with for perjury. If he answers them truthfully, he will not be dealt with for perjury. Does that state the universe of discourse?

MR JACKSON: No, not quite, your Honour, because - - -

HAYNE J: What is missing?

MR JACKSON: Yes, because what is missing, your Honour, is this, that it obliges him to - I am sorry, your Honour, I will start again. He was in a position where for not answering the questions in circumstances where the requirement to answer them, if one assumes is politically motivated and derives from that in the first place, he is yet in a position where he is liable to be dealt with further for not answering the questions.

HAYNE J: Yes. So his choices are: not answer and go to gaol for contempt; or answer. And if he answers truthfully, nothing befalls him.

MR JACKSON: Well, nothing may befall him because there may yet be an endeavour to charge him with perjury because of that.

KIRBY J: He fears - his assertion is the so-called perjury trap, that they have already made up their mind, they are just going to go through the motions and they are going to charge him with perjury, and that is why I would like to know if that charge would be tried by a jury because prosecutors can prosecute but, in the end, one would think independent judges or independent juries will give short shrift to a case where there is a real defence.

MR JACKSON: Well, your Honour, I will endeavour to give your Honour an answer to that. I cannot give one at the moment.

KIRBY J: It is a matter of law and I would not want to have any new facts.

MR JACKSON: No, no, I appreciate that, your Honour.

KIRBY J: No way that I would receive any new factual material, but it is a matter of law, it would seem to me.

MR JACKSON: Your Honour, may I endeavour to put that in a - it will have to be in a note, I think, your Honour.

Now, your Honours, what one ends up with then, in our submission, is a situation where there was no consideration whether the applicant was placed in a position of having to comply with Judge Dean's order or be liable for contempt for reasons of his political opinion. Now, your Honours, the way in which the Tribunal went about the matter was, of course, to say that the applicant could be protected by the judicial system of the United States and, indeed, in a sense, had been protected by Judge Dean when dealing with the matter.

Your Honours, the situation was that Judge Dean's view was based on the assumption, or based on the view, that there was no bad faith in relation to the matter. I took your Honours to a reference, I think, page 69 at paragraph 43 in Justice Katz's reasons, saying "there was no bad faith here". Whereas the underlying assumption of the contention which the Tribunal was prepared to assume was that there was a form of bad faith, that is, as to the motivation of the political opponents. That is at page - - -

KIRBY J: It does not rise as high as that or is the Tribunal perhaps unwisely saying, "Well, it may be, we are just not concerned with that"? I am looking at 47, line 35. One way to read that is, "Well, this is a gratuitous act of kindness in the exposition of the Tribunal of saying it may be" - I am sorry, it was not that particular passage, it was some other passage where they - what was that passage, Mr Jackson?

MR JACKSON: Page 47, your Honour, line 35.

KIRBY J: I see, yes, it is that passage. It may be that that is just a throw-away line of irrelevance in their reasoning simply saying, "That is not our concern".

MR JACKSON: With respect, your Honour, if that was so, then it would be an appropriate case, in our submission, for a mandamus, because it would be a matter of concern. It would be a matter of concern because the Tribunal's function was to determine whether the criterion was satisfied, the criterion referred to in section 36 of the Migration Act, namely being whether he was a refugee as defined by the Convention.

KIRBY J: But not really. All they said was "as to the motivation of his political opponents". Again, I would say what Justice McHugh said to you, the fact that a rogue prosecutor or rogue policeman had motivations is really not to the point of whether there is persecution.

MR JACKSON: Well, your Honour, to call them "rogue" puts them outside the system. These people were part of the system and "rogue", if I can say so, with respect, really gives them a characterisation they do not possess.

KIRBY J: Well, I understand that. I withdraw the word "rogue", but the motivation of people is often complex and we have to be very careful about scrutinising the Tribunal or any other reasons in a pernickety way. One way to read that is just that they are saying, "We're just not going to go into a psychoanalysis of the motivations of the political opponents of the applicant. We're going to concentrate on the objective facts", which are that he came before a judge who he makes no complaint of and who actually did a surgery job on the questions, ruled some of the questions out, said you have to answer the rest of them in an independent court system that he does not complain of, and he refuses to answer them and then says `That is persecution'".

MR JACKSON: Well, your Honour, one could always say that, of course, of a perfectly well-conducted hearing by a court but the anterior question, which it was, in our submission, necessary to resolve, was whether the situation of being before the courts at all was one that was brought about by, to put it shortly, a Convention reason.

Now, your Honour, if one were talking about a person who was selected to be charged because of religion or nationality or race, one could say in such circumstances, "Well, the hearing was conducted perfectly well. The judge wasn't biased", but at the same time one is entitled to take into account the fact that the - and, your Honour, one could also say the legal system of this country is very good but, your Honour, if lying behind it is the fact that the person who is charged is charged and brought into that situation because of the political reasons or a Convention reason, then, in our submission, one cannot adopt the - and, your Honour, I appreciate I am not using it in the same sense as your Honour did - but one cannot deal with the matter quite as clinically or surgically as, say, in two separate bits.

McHUGH J: Mr Jackson, that submission seems to me to overlook the point I have been putting to you that it ignores the necessity for the government, either directly or through its failures, to be responsible for the persecution. It is made very clear in the United Nations Handbook. It is referred to by Justice Dawson and myself in Chan's Case. It has been referred to on a number of occasions. You have to be able to impute this conduct to the government of the particular country, either directly or by its tacit consent to what is going on, otherwise any time somebody was prosecuted or arrested for reasons of political opinion, there would be a persecution for Convention reasons.

MR JACKSON: Your Honour, so far as the Convention is concerned - your Honour, looking at the federal clause in the Convention, Article 41, your Honours will see that under Article 41(a) so far as the subjects of the Convention are for the central government, to put it shortly, the obligations are "the same as those of" non-Federal States. As your Honours will see, that so far as Article 41(b) is concerned for the constituent elements of it:

the Federal Government shall bring such Articles . . . to the notice of the appropriate authorities -

and then, Article 41(c) is to:

supply a statement of the law and practice of the Federation and its constituent units -

to the Secretary-General in relation to -

any particular provision -

Now, your Honours, the point about that is simply that the Convention does recognise that the laws of particular nations will be laws that may be either laws of the central government or laws of a constituent element of it.

Your Honours, if one is speaking about the government, there is no reason why in a federal State one is not speaking as much relevantly about the provincial governments of it as one is speaking about the national government.

McHUGH J: Well, it would depend upon the relationship between the two governments but in a federal State it is, particularly where you have a judicial system where one can have recourse to - after all, we were talking earlier about trial by jury, the Sixth Amendment right to a trial by jury, if my recollection is right, is one of the Bill of Rights articles, which has been incorporated into the due process clause, so it is available in State courts. You have the federal system. It would take a lot of argument to convince me that the United States federal court system would not protect people's rights.

MR JACKSON: Well, your Honour, one - - -

McHUGH J: So you have a jury trial. It might not have been very palatable to your client, but he could have pleaded the Fifth Amendment to any of those questions that he thought might incriminate himself.

MR JACKSON: Well, your Honour, whether the trial be by a judge and jury or by a judge alone, the position of being put in the situation where there may be such a trial is itself related, in our submission, to the underlying ground.

GAUDRON ACJ: Is that not really your case though, Mr Jackson? You have to say, do you not, at the end of the day, that setting this process in train was the persecution - - -

MR JACKSON: Yes, your Honour.

GAUDRON ACJ: - - - and that that aspect of it simply was not considered by the Tribunal.

MR JACKSON: Your Honour, that is what I am endeavouring to put, with respect.

GAUDRON ACJ: The real question is whether it can be said that the setting of this process in train could constitute persecution from the purposes of the Convention.

MR JACKSON: Well, your Honour, may I say in relation to that, what one has is a general proposition which, in our submission, is correct and that is that to set the procedures of justice, if I can put it that way, in operation, and I accept selectively against people, for political reasons, is capable of constituting persecution for a Convention reason, is capable of doing so.

McHUGH J: Even if the proceedings fail in the end?

MR JACKSON: Even if they fail in the end. Your Honour, one assumes that they may fail if a person is put in jeopardy. What we would then say is that that possibility was not adverted to really at all by the Tribunal and the judgments of Justice Katz and of the Full Court really just simply draw a line between, on the one hand, the political motivation, if I could put it that way, and, on the other hand, the setting in train of the proceedings.

McHUGH J: Supposing it is a private prosecution. Supposing I go down to the court tomorrows and I lodge a prosecution against somebody on the ground of race or political opinion. Does that constitute persecution, allowing the person to flee to Australia, gets to some other country, they are bound to accept it?

MR JACKSON: It may not, your Honour, the point at which - - -

McHUGH J: What is the distinction?

MR JACKSON: Your Honour, I say "may not" for two reasons. The first is to advert to cases such as that adverted to by Lord Hoffmann, and your Honours may have seen in some of the reasons in the application book an observation of Lord Hoffmann dealing with cases where the conduct of persons not part of government was, in effect, sanctioned by government, because of the knowledge that government would take no action against them. I will give Your Honours a reference in just a moment. That is one observation I make in response to your Honour.

The other is, if one were talking on a narrower basis of what your Honour put to me, it may be a question of the timing involved. If it be that if a private prosecution was started against someone, then it might be difficult to say that there was persecution by, or in any way, related to government. On the other hand, if the situation were that the institution of prosecutions was something which could be taken over by a governmental agency as would normally be the case, and the governmental agency chose not to do so and political reasons could be identified for doing so, then it may fit within the definition of persecution.

HAYNE J: Thus, the bare fact of the possession of political motive by a prosecutor is sufficient to found the well-founded fear?

MR JACKSON: It may be, your Honour. I am sorry to be - - -

HAYNE J: I understand why you put it in that way and that no absolute, but does the existence of processes in State and federal law in the United States to challenge the regularity of institution of a prosecution provide a complete answer to the claim? If it does not, why does it not?

MR JACKSON: Your Honour, first of all, the issue which arises in terms of whether the definition is satisfied is one which will depend upon the material which is before the member of the Refugee Review Tribunal or the body which is considering the issue. That may well be different from the material which was, or might be, before a body in the country in question.

HAYNE J: Yes, I understand that, that evidence depends on somebody bringing it before the relevant tribunal, but does the bare fact that in the US, both at State and federal level, a challenge can be made to the institution of criminal process against a defendant, represent a complete and sufficient answer to a claim in this country that the political motivation of the prosecutor or investigators reveals a well-founded fear?

MR JACKSON: No, your Honour, it does not. What you have is a situation which has, first of all, the element that to have to adopt the course of doing that, of going to those links, is itself something which may be regarded as being brought about by the initial activities pursuant to the motivation. That is one aspect of it.

HAYNE J: So too might going to court to obtain injunction to restrain continued threatened assault against you by your political opponent. Yes, you have to go to court to obtain relief but - - -

MR JACKSON: Your Honour was asking me is it a complete answer. The answer is no, it is not, in our submission. It may well be a factor but it is not, in our submission, a complete answer. There may well be procedural matters that bear against it, time has gone, all sorts of things of that kind.

HAYNE J: It seems to me that the case that was being put to the Tribunal had these elements: one, there was an investigation of an allegation by Mr Gersten of crime by others. Step two, that investigation, according to Mr Gersten, became an investigation into wrongdoing by him. Step three, he says it became so and was being conducted by both investigators and prosecutors as it was on account of his political belief. Step four in the case advanced at Tribunal level appeared to be that in the course of that investigation he had been required to answer questions, on pain of penalty if he did not and on pain of penalty if he answered untruthfully, which itself revealed the persecution but to which, it seemed to me, needed to be added a further proposition, that so far as the court system of Florida and of the United States was concerned, the requirement to answer questions was both regular and in accordance with applicable law.

MR JACKSON: Your Honour, I would have to say not demonstrated to be irregular, put it that way.

HAYNE J: Yes, the correction is well made.

MR JACKSON: In those circumstances, if one follows through the course of events that your Honour summarised a moment ago, the situation which obtained, in our submission, was, that point having been reached, no further avenue of relief was available in the United States. Therefore, that is the situation he is in.

Now, your Honours, one is really speaking about a band of cases. The question is whether the particular case is one that is capable of satisfying the definition. In our submission, it was, and, in our submission, it was one that was simply not dealt with in the appropriate way by the Tribunal or by the courts. Your Honours, one has a situation where what is being said in the Tribunal and in the courts that the courts, in effect, can provide the protection but the question, in a sense, is whether they have.

In the end, if they have not, the question is, in a sense, self-answering, because it is said the courts will provide the protection. We say the courts did not provide the protection, and it is said that is the end of it. But in our submission, one is looking at two different things, whether the circumstances of the court's involvement is brought about by the events which took place in the first place.

Your Honours, could I move then to the question of the approach taken by the Tribunal in relation to what was meant by "persecution". Your Honours will see that referred to first at page 40, about line 16, and your Honours will see - I am sorry, your Honours, I said, page 40. I think that is actually incorrect.

GAUDRON ACJ: Page 40, line 40, the definition of "persecution", the glossary, as it were.

MR JACKSON: Your Honours will see at page 49 about line 37 that it was said that - there is a reference to "serious harm", but the approach taken by the Tribunal was to treat persecution - I am sorry, your Honours, page 40, line 13, I should have said. I think your Honour said that. I missed it, I am sorry. It was said that "Persecution" meant "serious or significant harm", and that was the test that was applied. Your Honours, that it was the test applied appears in a number of places, page 49 about line 39, "that, in itself, is a form of serious harm". Your Honours will see it adverted to also at about line 49 on the same page:

The Tribunal is not satisfied that the cost and inconvenience . . . would cause the Applicant such serious harm as to amount to persecution.

Then page 54, about line 14, your Honours will see the reference to "seriously disadvantaged". Your Honours, that applies rather more stringent tests, in our submission, than one can see in approaches taken in this Court. Could I refer your Honours to Minister for Immigration v Guo [1997] HCA 22; (1997) 191 CLR 559 at 570. Your Honours will see under the heading "Persecution" on that page:

In Chan, Mason CJ referred to persecution as requiring "some serious punishment or penalty or some significant detriment or disadvantage".

Your Honours will see a reference further down under that heading, just above the reference to "Persecution for a Convention reason", a reference to your Honour Justice McHugh in Chan:

persecution was selective harassment and that in appropriate cases it could include single acts of oppression and measures "in disregard" of human dignity.

But your Honours will see, for example, the reference by Chief Justice Mason, "some significant detriment or disadvantage".

Now, your Honours, no doubt to a degree there are various ways of putting the same concept, but the expression "serious harm" appears to have been used by the Tribunal and, your Honours, if one looks at the actual approach taken by the Tribunal in the passages at page 52 to 54 - I have taken your Honours to the various aspects already - we would submit that the Tribunal takes a view of persecution which is significantly outside the expression "significant detriment or disadvantage" and - - -

McHUGH J: Yes, but maybe despite some of the statements in the courts and I have them myself in some of the earlier cases, that that is too low a standard. The United Nations Handbook, in effect, requires that the harm be so intolerable that a person cannot reasonably be expected to remain in the country or to return to the country. It cannot possibly amount to persecution simply because you suffer some significant harm, just standing alone, can it?

MR JACKSON: Well, it depends what it is, your Honour, it depends what it is. Your Honour, I am sorry, I did not mean to be facetious in saying that, but it must depend what the harm is and whether it be person, property and so on, but, your Honour, if one - - -

KIRBY J: This is what Lord Hoffmann dealt with in Shah and it referred to in the Full Court. People said, "Well, the Jews in Germany, all they have to do is wear their little yellow star and walk around and they can get by and they can carry on their business and it is no big deal." Justice Hoffmann and I disagree with that.

MR JACKSON: Yes. I said I would give your Honours a reference, that is page 122 in the application book and - - -

CALLINAN J: Mr Jackson, what is the status of the handbook? Who compiles it, do you know?

MR JACKSON: Well, your Honour, it is the United Nations Secretariat itself, as I understand it.

CALLINAN J: So it is compiled by some officials, is that right?

MR JACKSON: It really has a status equivalent to some of the documents that were relied upon to seek to give meaning to the Child Abduction Convention in the two cases the Court dealt with that. JLM was one of them. The point I was going to make about it, your Honours, was that in the end it is a question of what the statute says. The statute says, look at the definition, and one applies that by reference to, amongst other things, the Vienna Convention on the Law of Treaties and, your Honours, no doubt, as with textbooks and other matters, one is assisted by the views of those involved in the administration of things. But in the end, they are not decisive. The question is - - -

CALLINAN J: I just wonder what assistance you can get from them. The handbook is presumably prepared by lawyers in the Office of the High Commissioner for Refugees or somebody like that.

MR JACKSON: Yes.

CALLINAN J: I do not know why their views on the construction should be any better than any other lawyer's views on it.

MR JACKSON: Well, your Honour, that is the difficulty, of course, that always arises in relation to these things and particularly with international things where, your Honours sometimes the views that are expressed do reflect the current learning of international lawyers on the topic. One sees, of course, that there are sometimes decisions of the International Court and of tribunals and they have a greater status. But I suppose it is right to say, your Honour, that in the international area, the writings of writers are of some significance, but - - -CALLINAN J: But you do not know who they are. That is the point. They are anonymous.

KIRBY J: But they are officers of the High Commission for Refugees, and it is common in virtually every country that deals with refugee cases to have regard to that handbook. It is not binding in any way. We have often done so in this Court, I think.

MR JACKSON: Your Honour, what it is, is a handbook. I do not mean to understate or overstate, it is, in effect, like a commentary on a statute.

CALLINAN J: Torts in a nutshell.

MR JACKSON: That a long read, your Honour.

KIRBY J: There are some things a little simpler than Perre v Apand.

CALLINAN J: Well, no, it really is not a laughing matter. You will remember, I think it was in Israelian there was a statement attributed - it was obviously never proved that it had been made - to the United Nations High Commissioner for Refugees that all persons who wanted to avoid national service in Russia - I think it was the Israelian - were fit to be considered as a class liable to be persecuted on that account. It was never established that the High Commissioner had said that, but even if it had been, it would merely be the expression of an opinion by a very senior official, but nonetheless an official.

MR JACKSON: That is so, your Honour, and I do not know that really one would suggest otherwise, that that is what it is.

KIRBY J: What does the handbook say in this case, if anything?

MR JACKSON: Your Honour, I am simply referring to what Justice McHugh said about it.

McHUGH J: The 1979 book was referred to by Justice Dawson in Chan, and said:

"In general, the applicant's fear -

that is of persecution, I interpolate that -

should be considered well-founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him for the reasons stated in the definition, or would for the same reasons be intolerable if he returned there."

KIRBY J: Well, that fits in with Article 1C, which constantly refers to the unwillingness of the person to seek the protection of the country of his nationality. The scheme of the Convention seems to be that ordinarily people should look to the country of nationality to protect them, but in some cases it is reasonable that they do not because they are being persecuted there and, therefore, the scheme of the Convention seems to fit in with that comment in the handbook, that ordinarily you should look to the protection of the country of nationality.

That brings us back to Justice McHugh's question earlier about the discretionary element in this case, given the change of political fortunes and so on, who could seriously say that the country of nationality in this case, or even the State of the country of nationality, would not protect your client's rights against persecution.

MR JACKSON: Your Honour, if one looks at the definition which is the feature to which one is required to look by virtue of the Migration Act, and that is section 36, your Honours will see that what is says in section 36(2):

is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

Your Honours will then see that the terms of the Protocol have the effect that articles - this is Article 1 of the Protocol. It says that Articles 2 to 34 apply to refugees as therein defined and there was some amendments to the definition of "refugee" in Article 1A(2) to take it beyond World War II refugees.

Then your Honours will see, for example, that when one goes to the terms of the Convention that it provides that the contracting States, for example, are to apply the provisions of the Convention to refugees without discrimination in various ways, but the critical thing is whether a person is a refugee. If one goes to the words of that, one sees that the person is not just "unable", but is also, owing to the fear, "unwilling" to return to it.

HAYNE J: But it has to be tied back to "well-founded" surely?

MR JACKSON: Yes, your Honour; a "well-founded fear of being persecuted".

HAYNE J: "Well-founded" has particular work to do if it is demonstrated that there is a developed and sophisticated scheme for protection of the particular citizens of the country against persecution.

MR JACKSON: Yes, your Honour, but also a "well-founded fear" does not have to be one that is based upon the certainty that something will happen.

HAYNE J: Indeed so, but "is unable, or owing to such fear", that is a well-founded fear.

MR JACKSON: Yes, your Honour, I accept - - -

HAYNE J: The proposition for which you must contend is that the United States has a legal system of a kind where a person can, with proper foundation, conclude that it is unable to protect him against persecution for "race, religion, nationality", et cetera.

MR JACKSON: Well, your Honour, what we would say in relation to that is that the way in which the matter comes before the Court is that the issues were sought to be raised before the Tribunal and before the Tribunal the question whether the requirement, whatever its precise content, was or was not satisfied, was one that needed to be determined by the Tribunal and what we would seek to say is that the Tribunal in answering that question did not apply the correct test because it did not look to see whether the events which occurred and which remained to occur were ones that were brought into being because of the political opinion.

It does not turn precisely, in our submission, upon whether there might be some protection in the United States, but the question is whether the system in the United States, if I can use that description shortly, was one that was brought into operation against him in circumstances where it ought not to have and where it had a continuing operation.

CALLINAN J: Mr Jackson, your complaint really is against the officials and the politicians and it involves the contention that they are not satisfactorily amenable to the United States or the Florida judicial processes.

MR JACKSON: Your Honour, not, with respect, quite so in the sense that we were accepting that we were the ones who were liable to the judicial processes of Florida and the United States.

KIRBY J: But not willing to take their verdict.

MR JACKSON: Well, not willing to take the result, your Honour, in circumstances where the system was not being used to provide protection against persecution but was being, we would submit, used really in a sense as an instrument of it. Your Honour, I do not mean that offensively to the United States, of course, but I am speaking about the fact that it is perfectly possible to utilise a judicial system in a way which will have a significantly adverse effect against those who are selected to be its objects and selected for a Convention reason.

McHUGH J: Yes, I know, but you have to take into account the whole background of the system as it has been pointed out. You have a right to a jury trial. You have a right to all the amendments. You have the right to claim self-incrimination. You have the right to a speedy and public trial. You have the right to compulsory process for the purpose of obtaining evidence. All those federal rights have been incorporated by the United States Supreme Court into the Fourteenth Amendment so you get all the protection in State courts and if they are not carried out then the federal courts will intervene.

KIRBY J: Have more rights than you have in this country.

McHUGH J: Certainly have.

CALLINAN J: And, Mr Jackson, in this country everybody, to some extent, is at the mercy - and it is not unknown for this to occur - of corrupt officials and policemen and, indeed, at the mercy, perhaps, of politically motivated ministers administering various departments but the courts provide the safeguard for those in this country and do in the United States too.

MR JACKSON: Well, your Honours, it is tempting to treat the courts as the - - -

CALLINAN J: Complete antidote.

MR JACKSON: The complete antidote, but, your Honours, if one took something slightly away from the President - not unknown for defamation actions, for example, to be used to silence political opponents or the threat of defamation action.

McHUGH J: They cannot in the United States since New York Times v Sullivan.

MR JACKSON: I appreciate that.

McHUGH J: But even if you take the bad old days, take the Scotsborough Boys back in the 1930s, they kept getting convicted by southern juries. The United States Supreme Court kept intervening and protecting their rights.

MR JACKSON: Well, your Honour, no doubt one can pick the triumphs of the system and one sees, too, so frequently discussions about the failures of the system: people released from prison after they have been in the execution row for some years who have had all the rights, all the lawyers, all the petitions to the Supreme Court and who have had a significant rest at the expense of the country or the State. So, your Honour, it does not, with respect, always work.

McHUGH J: No system of justice is perfect.

MR JACKSON: I am sorry, I thought your Honour was saying it was in a sense before, with respect.

McHUGH J: It is as perfect as human beings can make it.

MR JACKSON: Well, with respect - your Honour, I do not know how to answer that. Your Honour may have a view about it - - -

McHUGH J: Yes, I certainly have a favourable view of the United States Constitution, as a Bill of Rights and the federal judicial system.

MR JACKSON: Yes. Well, your Honour, having said that, it does not, with respect, mean that the system is not one capable of being utilised to the disadvantage of persons for political reasons. The point we would seek to make about it is that this was an issue which was never properly considered, either by the Tribunal or by the two courts to which the matter has been. Your Honours, what we would submit is that if one goes, for example, to the Full Court in this case - and could I take your Honours to that for just a moment, at page 123 - if one looks at paragraph 32, it is a passage that goes through to the next page through to paragraph 36 - your Honours will see that what was said at the bottom of page 123 was:

First, it is necessary to identify the persecution -

and then your Honours will see in paragraph 34:

The Tribunal made no specific finding as to whether the investigation which was launched against Mr Gersten was itself politically motivated. It said no more than that Mr Gersten "may have been right" . . . 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 -

Your Honours will see through the remainder of that page that what has been done has been to do exactly what the Tribunal and Justice Katz did, and that is not to consider whether the fact that the proceedings commenced because of the political motivation was itself a factor linking the two things. There is a complete separation brought about and, your Honours, without putting it in a particularly florid way, we would seek to say what we said a moment ago, that the US judicial system was not being used to provide protection against persecution but was being utilised, our submission is, as an instrument in the persecution.

Now, what the Full Court does not consider, other than to recite the existence of the historical connection, is whether the jeopardy into which he was placed was by reason of his political opinions. Your Honours, what it does do is to overlook the fact that, if I could pick up the phrase used, I think, in Chen, in paragraph 21, page 301, "selective enforcement of a law of general application may result in discrimination". Your Honours, those are our submissions.

GAUDRON ACJ: I did not hear anything about unreasonableness.

MR JACKSON: I am sorry, your Honour, I thought I had dealt with it, albeit briefly. The point we were seeking to make was simply this, and your Honours will see it - the point is made in our written submissions - - -

GAUDRON ACJ: I mean, there is a fairly large question about the nature of unreasonableness and whether or not it constitutes jurisdictional error. I thought we were going to have a significant argument put to us on this matter.

MR JACKSON: Your Honour, the point we were simply seeking to make is really a narrower one, and that is the one to which we refer at page 10 of our written submissions in paragraphs 38 and 39.

GAUDRON ACJ: We have all been guilty of lapses of logic in our time, even you, I suspect, Mr Jackson.

MR JACKSON: More than once, I suspect, your Honour.

GAUDRON ACJ: How does that bring us to jurisdictional error? I know what is said about what Justice Gummow said, but a lapse in logic is not necessarily the same as a lack of any logical foundation.

MR JACKSON: Your Honour, could I put it this way. The observation to which we referred there is an observation made in relation to circumstances where the expression of view was expressed in terms of if someone is satisfied or if the opinion is reached and so on. The point that Justice Gummow made and which seemed to be picked up by four members of the Court in the Enfield Case was that if that were so, then prima facie the provision was to be treated as one which involved the making of an opinion on reasonable grounds or grounds, to put it the other way, that were supported by some probative material or grounds that were logical grounds.

In relation to that, that, as I said, appears to be referred to in relation to something where you have to be satisfied of an opinion. When one comes to the test that is being applied in relation to section 36, on the one hand, and the functions of the Tribunal in sections 412 and 414 which says that the Tribunal must review the decision, it seems right to say that the Tribunal is not dealing with a case purely of there being an opinion. But involved in the determination of the matter is whether there has been satisfaction of the requirement under section 36 and the provision of the Convention.

What we would seek to say about it is that in arriving at that view, the Parliament should be treated as requiring that the result be one which is arrived at by the application of logical criteria, the criteria being ones that in their application to the facts are ones that sit together, to put it shortly. I am not saying that they have to be right but they have to be ones that are, in a sense, logical. It is in that sense that it would go to jurisdiction.

GAUDRON ACJ: You say not mutually inconsistent?

MR JACKSON: That is so, your Honour, yes.

GAUDRON ACJ: Is there anybody who says that that is what is meant by the ground of - first of all, in the context of 75(v), where does this ground of reasonableness come from?

MR JACKSON: Your Honour, it comes from the fact that one is dealing with a number of forms of relief in section 75(v). If one took, for example, or took perhaps in a sense archetypally mandamus, what one is looking to see is whether there has been a failure on the one hand or a constructive failure on the other to exercise jurisdiction. Your Honours, if one leaves aside actual failure, because the issue is most likely to arise in circumstances where some decision in form has been made, one has to go then to see whether there has been a constructive failure.

Now a constructive failure can arise in a number of ways: first of all, the ordinary case of misapprehension of the statute; secondly, a number of circumstances where perhaps facts have not been taken into account at all when they should have been taken into account and matters of that kind. One can also see, in relation to natural justice, that failure to exercise natural justice will be regarded as something which can constitute a constructive failure to exercise jurisdiction, because the provisions conferring jurisdiction - and, your Honours, I appreciate there are a number of different ways of describing the concept - but, one way or another, the provisions conferring jurisdiction are treated as incorporating in them the concept that the powers are to be exercised judicially, to put it shortly, or in accordance with natural justice.

Then if one goes on from that to provisions which are treated as requiring that the decision be one that is made logically, for example, or supported by some probative material, if I could pick up the words of Justice Gummow. Now, your Honours, in our submission, the same situation applies. One is dealing about powers that are conferred to be exercised in a certain way and to say that is to describe, on the one hand, manner of exercise, but on the other hand to describe what is to be exercised, what is the ambit of exercise, and that is a question of jurisdiction.

KIRBY J: Have the constitutional writs ever been issued for, so-called Wednesbury unreasonableness?

MR JACKSON: Your Honour, the answer in relation to mandamus I think is yes. Can I give your Honour a reference on that?

KIRBY J: I would like a reference. If one were, for example, to take a 1900 view about the Constitution, which I do not take, then you would not include in concepts of the prerogative writs when they became constitutional writs such notions, I would not have thought, because Wednesbury unreasonableness came much later in the development of administrative law remedies in England and followed here, but therefore there is quite an important question as to what is the content of the constitutional writs and when one decides that.

MR JACKSON: Your Honour, no doubt Wednesbury unreasonableness became Wednesbury unreasonableness at the time Wednesbury was decided. One can see some hints of it on the way. But, could I endeavour to give your Honour an answer to that perhaps at 2.15, if that is necessary. Your Honours, that is what I wish to say about that topic.

GAUDRON ACJ: Yes, thank you, Mr Jackson.

KIRBY J: Could you just help me in a sentence or so as to what is the Wednesbury unreasonableness, illogicality of the reasoning of the Tribunal that you attack? Is it that because they said, "Well, the policeman and the prosecutor might have political motives, might have those but we're not going to go into that", and then went on to hold that your client was not entitled to protection?

MR JACKSON: If I can put it this way, the Tribunal was saying, in effect, "Well, you have been and you can be protected by the courts of the United States". The point we were seeking to make is that that is illogical because the complaint that we are making is that we have been brought to the courts of the United States because of the political - - -

KIRBY J: Yes, but, as Justice Hayne pointed out, so long as a court system has a procedure - it may not always be perfect and courts are very loath to interfere with prosecutions - but so long as there is a procedure to strike down proceedings that are brought for a want of good faith, then there is a remedy and Judge Dean, as I understood it, refused that and said that she was not convinced. Now, your client does not like the result, but it is not as if either (a) the courts of the United States do not have a remedy, or (b) that your client has not invoked it. He just does not like the decision.

MR JACKSON: Your Honour, there is no doubt that he does not like the decision but the point we would seek to make about it in a sense is set out, your Honours will see, in paragraphs 42 and 43 of our written submissions, page 12. Where the Tribunal, in effect, said, "You have the protection of the United States courts" and treated that as the end of the matter, we say it is right to say, in one sense, we had the protection of the United States courts, but in reality it did not protect and that one cannot treat the existence of the United States courts as the be-all and end-all of the matter. One is brought into the system - and, your Honours, this comes back to the first point I was seeking to make - in any event by the fact that the institution of the proceedings is something that has the political motivation.

KIRBY J: You have directed most, if not all, of your argument to the application of the constitutional writs, but there is also before us the special leave application. Is there anything separate and different that you say in that?

MR JACKSON: Well, your Honour, it is really a question of classification in a sense. Perhaps in the light of what your Honour has said, I should just say something about whether it is an appropriate case for special leave, and I will do that in just a second, your Honours, but either, we would say, it falls within the constitutional writs or else the case is one where, if one goes to section 476, I refer your Honours back to the provision to which I adverted earlier, 476(1)(e):

that the decision involved . . . an incorrect interpretation of the applicable law or an incorrect application of the law to the facts -

Your Honours, as to this question whether special leave should otherwise be granted, could I just say these things, that this is a case where the approach taken in the Tribunal and in both courts below first of all has been to deprive the concept of "persecution" of its full meaning, in our submission, and has failed to recognise that persecution may occur through the application of laws of general application.

First of all, we would say those are matters of public importance but, secondly, we would say that the case is one, in any event, of significant injustice in a particular case meriting special leave because first the Tribunal did not actually make relevant findings, secondly, it applied unduly constricted tests; thirdly, Justice Katz, on the review, went off, in a sense, on a factual exercise of his own without the benefit of full argument - - -

KIRBY J: To which you have made selective references yourself in the sense that you have gone to it to explain to us what Judge Dean did in the United States.

MR JACKSON: Your Honour, that is all that was there. Your Honours, if I had not made selective references I would be here for several days and your Honours would not let me be here anyway.

KIRBY J: Perhaps that is what Justice Katz had in mind.

MR JACKSON: And, your Honours, both courts applied tests which, in our submission, were too narrow. Your Honours, those are our submissions.

GAUDRON ACJ: Yes, thank you, Mr Jackson. Yes, Mr Roberts.

MR ROBERTS: Your Honours, perhaps if I could start at the end and say something about discretion which we have not adverted to in our submissions at all.

KIRBY J: I think you do refer to it at the very end, do you not?

MR ROBERTS: Not this particular aspect, because I was unaware of it, so I, with some trepidation, wish to raise this particular matter. If I could just set the scene in relation to this. The questions that Mr Band, the prosecutor, sought to ask under subpoena of Mr Gersten, concerned the theft of his motor vehicle, it apparently being a requirement that there be some evidence against the perpetrator of that crime independent of the admissions which it made to police which, apparently, were not able to be used because they were immunised. So there was a requirement, I assume, that the federal or State authorities in Florida be satisfied of the prosecution case in relation to the theft of the automobile and it was in relation to the automobile theft that the subpoena was issued to Mr Gersten to answer questions.

Now, a relevant matter in relation to discretion that arises at this stage is whether the proceedings against the alleged perpetrator for a theft of the automobile could still be pursued or whether there is some reason that those proceedings are now otiose.

KIRBY J: But how would we know that? We do not even know whether a jury is available. I assume it is.

MR ROBERTS: I will answer that - the jury one separately. Your Honours, there is a decision of the New South Wales Supreme Court, a decision of Justice James called Gersten v The Law Society (2001) NSWSC 748 which is unreported. It was delivered on 7 September 2001 and those were proceedings by Mr Gersten pursuant to Part 65A of the Supreme Court Rules in relation to him having apparently not received a practising certificate, he being a lawyer, and apparently being suspended from practice in the United States and in those proceedings all of the evidence that was canvassed before the Refugee Review Tribunal got a rerun and additional evidence was apparently called, and I am reading from - - -

KIRBY J: I hope you are not trying to put new facts before us, because this Court has said that that cannot be done in an appeal.

GAUDRON ACJ: Not in relation to 75(v) though.

KIRBY J: No. It is available on 75(v), but it would not be available if special leave - we will have to divide our mind.

GAUDRON ACJ: It is always available on special leave applications.

KIRBY J: I know. I know these distinctions have been drawn.

GAUDRON ACJ: I do not think you have any difficulty. This is a special leave application. Evidence has always been admissible on a special leave application, particularly in relation to any discretionary factors that might be involved, and it is certainly admissible in 75(v) proceedings. So you need not be inhibited.

MR ROBERTS: Thank you, your Honour.

KIRBY J: But it would only be received on a special leave application as it might be available in the appeal.

GAUDRON ACJ: No.

HAYNE J: I think not.

KIRBY J: Or going to the question of the importance of the matter.

MR ROBERTS: Well, hopefully, what I am endeavouring to do is to say that the American law apparently, or Florida law, is X, according to the recital of the facts - it being a fact, I take it, in the judgment of Justice Bruce in the Supreme Court.

McHUGH J: It was held 30 years ago in Duncan v Louisiana by the United States Supreme Court that the Sixth Amendment right to a jury trial applied in State court - - -

MR ROBERTS: I am sorry. I am dealing with a different point, your Honour.

McHUGH J: I see.

MR ROBERTS: Paragraph 598 of that judgment - - -

CALLINAN J: Before you do that, I have a further concern. I do not doubt for a moment that evidence can be received as her Honour the presiding Judge has said, but what I am concerned about is the form in which it is to be received. There is no affidavit. It may be that Mr Jackson does not dispute it. Are you going to try to prove or demonstrate what Florida law is? Just tell me, if you do not mind, for what purpose are you referring to the findings in the Supreme Court?

MR ROBERTS: I am referring to a finding - I take it is a finding as opposed to a holding of Justice Bruce - I am sorry, James. I beg your pardon, Bruce James, in the Supreme Court, in relation to a limitation period in relation to car theft.

CALLINAN J: But foreign law is a matter of proof. It is a fact to be proved. I do not know what Mr Jackson's attitude to this is. It may be that there is no dispute as to it. If it is a factual question, although it can be received here, Mr Jackson would be entitled to attempt to controvert it if he could. That is the only point I want to make.

MR ROBERTS: Your Honour, the fact at issue here is a question of Florida law - - -

CALLINAN J: Limitations period for this sort of crime in Florida.

MR ROBERTS: Yes.

CALLINAN J: I do not know whether Mr Jackson wishes to try to controvert that or not.

MR JACKSON: My attitude is one of surprise.

McHUGH J: What has it got to do with the case, anyway?

GAUDRON ACJ: It would seem to me the relevant question is whether there is a limitation period for the contempt proceedings.

McHUGH J: Exactly.

GAUDRON ACJ: Which you need not answer. That is just to say that that seems to be the relevant thing in terms of whether or not there might be a well-founded fear of persecution.

MR ROBERTS: The two go together. The chain of logic is this. If there were a limitation period, which we submit there is, in relation to prosecution for the theft of the car and the reason that Mr Gersten was required to give evidence related to the potential prosecution of a person for theft of the car and that person can no longer be prosecuted, ergo the substance of the subpoena that was issued to him has now disappeared, the whole matter is now moot. Accordingly, we would respectfully submit that no court in Florida, even if the bodily attachment writ against him was now sought to be enforced, he would have, obviously, a perfect defence to that because the answering of questions is no longer a matter of any relevance or substance to anybody.

McHUGH J: That is not the heart of the proceedings against him. The proceedings is that he has disobeyed an order of the court. What does it have to do with the fact that the malefactors cannot be prosecuted for car theft?

MR ROBERTS: Because, your Honours, the chain of events is this: Mr Gersten is saying, "Look, I don't wish to answer the questions". The questions were being asked apparently to get evidence in relation to prosecuting Mr Elswick, I think his name is - - -

McHUGH J: Yes, but he has been dealt with for not answering the questions.

MR ROBERTS: But nobody would ask the questions now and he cannot purge his contempt - - -

McHUGH J: Maybe they would not but - - -

KIRBY J: I am not so sure that they would not because behind the questions was the question of whether Mr Jackson's client had been involved in drug use and drug dealing, was it not?

MR ROBERTS: That is the point that I was endeavouring to make to start off with. The subpoena was issued in order to obtain evidence in relation to the car theft, evidence being necessary - they could not use Mr Elswick's admissions because those admissions were immunised, so they could not use that. Therefore, they sought to bring in Mr Gersten to answer questions to see what he would say if a prosecution was launched in relation to the car theft. That car theft, we submit, could no longer be charged - - -

KIRBY J: The least of your client's concerns in the Florida courts was his car theft. His car was stolen, he reported it. His concern was to try to fend off questions of the so-called perjury trap which related to drugs.

MR ROBERTS: He has now fended them off by effluxion of time and the whole proceedings have disappeared, in effect, because there is no basis for asking him questions and therefore no basis for seeking to say that he has told lies on the subpoena proceedings.

GAUDRON ACJ: I think you must have better discretionary arguments than this one, Mr Roberts, do you not? I mean, first of all, it is not agreed. There would seem to be a need to prove it by proper evidence and you have not and it is largely speculative, is it not?

CALLINAN J: In any event, at page 26, the applicant claims that the car thieves have been granted immunity from the prosecution. So, if there is anything in your point, that seems to be evidence that the car theft is not going to proceed and it is evidence coming from the applicant.

MR ROBERTS: The immunity, as I understand it, which they were granted was in relation to use of cocaine and the like, as opposed to - - -

CALLINAN J: You say you understand that, but the evidence at the moment, unless there is something else, is evidence coming from the applicant. Relevantly it may be an admission against interest if it is against him, and you want to use it against him, and it is to the effect that they have been granted immunity from prosecution for the theft. That is at page 26, paragraph 25. So that makes your point, if there is anything in the point, that the prosecution for car theft is unlikely to go ahead.

MR ROBERTS: Your Honours, the documentary material, which was extensive, is reviewed in the judgment of Justice Katz, which was before the Tribunal and - - -

CALLINAN J: That contradicts that, does it?

MR ROBERTS: As I understand it, yes, but the testimony was immunised. The testimony that they gave in relation to the events in the "crack" house, that was the immunised testimony, and part of that was how the car came to be obtained by Mr Elswick. None of that could be used against them.

CALLINAN J: Anyway, look for the reasons the presiding Judge and Justice McHugh have said, there is probably not much point in taking up very much time on this. I do not want to go down a - - -

MR ROBERTS: There is also a holding by the judge in this respect, in relation to what would happen or might happen in the United States if he were to return in proceedings brought by Mr Gersten in which all of these matters were ventilated and which evidence was given and, in my respectful submission, when one looks closely at this matter, it is a complete answer to the claim by Mr Gersten that should he return to the United States it is likely that he would be returned to custody pending his answering questions which he says he refuses to answer because of this allegation of a perjury trap.

Now, if all of that falls apart, then, of course, it does go to the question of discretion, and that was the matter that I was seeking to adumbrate here, that the whole of his case before the Tribunal was based upon this claimed fear of being returned to custody in the United States, to remain in custody until he perjures his contempt of court, the contempt being his refusal to obey the order of Justice Dean to answer those questions which she said he had to answer and all of that substrata - - -

KIRBY J: What is your answer to the Acting Chief Justice's question to you of there being now a dispute about the matter, Mr Jackson not consenting to this, you are telling us something from the Bar table about a judgment that we do not have, why should we listen to it?

MR ROBERTS: Well, I am not so sure that there is a dispute in relation to the application of a limitation in relation to the prosecution of a person for car theft. If there is, well, I have not yet heard that that is the attitude of our learned friends, but, your Honours, in proceedings in which Mr Gersten brought himself in the State of New South Wales seeking to agitate again these very matters, we would respectfully submit that this Court is entitled to look at the evidence that was given, the law that was referred to - - -

KIRBY J: I am not saying that we would not look at it. At least it may be relevant to the discretionary questions that arise, but, as I understand it, Mr Jackson says, "I am surprised". He is surprised that you are raising this. I think you have to sort out, maybe over lunchtime, coming back to this if need be, how the matter is going to be put before us in a correct fashion. I do not have Justice James' decision. I have not the slightest idea about it.

MR ROBERTS: I can, of course, have it copied, but it is some 600-odd paragraphs in length. That is the problem.

HAYNE J: Why should we be in the slightest bit fussed by findings of fact made between other parties, in another court, on other evidence? What you seek to do is try to get before us the findings of fact by another judge, on other evidence, in other proceedings, and at least - - -

MR ROBERTS: On a matter of law.

HAYNE J: - - - on a matter of foreign law, a question of fact. That, to my view is, at the least, irregular.

CALLINAN J: I specifically criticised that in Jia and White, where one Full Federal Court adopted as findings that had been made some many months before in another Full Federal Court case and, I think, at least implicit in some of the reasons of some of the other members of this Court was a similar criticism.

KIRBY J: Mr Roberts, you rose and said with trepidation. The reason for your trepidation was well-founded.

MR ROBERTS: I am well-founded. This is so.

KIRBY J: I think you had better put your trepidation to one side and get back to your case.

GAUDRON ACJ: Do you have arguments of substance or is your case simply this: whether or not the lower courts or the Tribunal were right or wrong, this man could never be found to be a refugee within the terms of the Convention?

MR ROBERTS: That is our major point in relation to discretion.

GAUDRON ACJ: That is your major point. You do not have arguments of substance?

MR ROBERTS: Your Honours, there are about two or three matters that I wish to refer to if your Honours wish me to, but if it is unnecessary, then I will not.

GAUDRON ACJ: I would not have said it was unnecessary.

MR ROBERTS: I would like to make a couple of points, if I may. The suggestion by our learned friends that the legal system of Florida was used as an instrument of persecution, could I remind your Honours that the proceedings in which the order was made by Judge Dean to answer the questions were proceedings commenced by Mr Gersten himself. He brought those proceedings.

KIRBY J: But he was seeking more ample relief than Judge Dean was persuaded to give him.

MR ROBERTS: That is so, but he did, in fact, receive some relief, and the relief being that he was excused from answering certain of the questions that Mr Band sought to ask of him, so he received partial relief, and the prosecutor's office then went back to Judge Dean in those proceedings seeking to enforce the order that he answer the rest of the questions that Mr Band was asking. So to suggest that the legal system was used as an instrument of persecution, we would respectfully submit, is entirely wrong.

The question about whether there would be a jury for a possible proceeding against Mr Gersten for perjury is partly answered at page 52 of the appeal book, where at line 15 there is a reference to:

Nor is the Tribunal satisfied that a jury in Florida would, having heard the evidence, and properly instructed by a judge -

et cetera. Evidence was given, oral evidence, by not only Mr Gersten but by Ms Calzon, and we would respectfully submit that is a reflection of the evidence that was given, that is, that a prosecution for perjury in Florida would be heard by a judge and jury, which one would anticipate, in any event, under the American Constitution.

GAUDRON ACJ: I am a bit lost. Why are you talking about a prosecution for perjury?

MR ROBERTS: Because I am seeking to answer the question whether or not there would be a jury trial, because that was asked by at least Justice Kirby, and I was seeking to answer that.

GAUDRON ACJ: Yes, I am sorry. The real trouble is the contempt, is it not?

MR ROBERTS: I take your Honour's point. The argument that was being put in the Tribunal is that the serious harm that Mr Gersten would suffer was on return to the United States the possibility of being charged with perjury and not receiving a proper trial, and that is dealt with at some length in the Tribunal's decision.

GAUDRON ACJ: If that was the basis on which the case was put, it seems to me - it may be the basis on which the case was understood, but it does not seem to me that that was the case. The case was that he was in a catch-22 situation. He could go back and not answer the questions and be dealt with again for contempt, is that not right, or he could go back and answer the questions and be dealt with for perjury?

MR ROBERTS: Your Honour, the basis upon which he put the case, or one of the bases upon which he put his case before the Tribunal was that he was at substantial risk of being charged with perjury and not receiving a fair trial. This is what was put on his behalf, whether it be - - -

GAUDRON ACJ: If he answered the questions according to, we will assume, what he believed to be the true situation.

MR ROBERTS: Yes.

GAUDRON ACJ: If he told the truth, he would be charged with perjury; if he kept his mouth shut, he would be charged with contempt and if he conveniently admitted to what he said were lies, he would lose his livelihood.

MR ROBERTS: Yes.

GAUDRON ACJ: That was the case. It was never a single case as such, was it?

MR ROBERTS: No, I am dealing with an aspect of it and I am merely saying this is the case that he put to the Tribunal and it was dealt with - - -

GAUDRON ACJ: It could only ever have been an aspect of the case and that, indeed, was Mr Jackson's argument before, that the real error in Mr Jackson's submissions was that they just failed to see that it was the entire situation that had been brought about that was the persecution, as distinct from the possibility that he might have to stand trial for perjury.

MR ROBERTS: Two matters, your Honour. Firstly, the way the case is presented now does not necessarily accord with what was put before the Tribunal, we would respectfully submit, is reflected in its decision and I have merely drawn your Honour's attention to that part of the decision of the Tribunal in order to answer the question of Justice Kirby whether there would be a jury trial and the answer that I am suggesting is, yes, there would be because it says so and this was a factual matter apparently dealt with by the Tribunal and I was drawing your Honours' attention to that one matter.

Your Honours, in relation to the way that the matter was dealt with by the Tribunal, we would respectfully submit that the Tribunal dealt with all of the arguments that were put before it and came up with its reasons which were logical and sound in that respect which basically, as your Honours have pointed out to our learned friend, that the gaoling of Mr Gersten for contempt resulted from his failure to answer questions which he was directed to answer by the Court - - -

CALLINAN J: Could he still have taken the Fifth in relation to those questions?

MR ROBERTS: I understand not. That is the whole idea of making him answer questions, but they cannot be used against him, of course.

CALLINAN J: They cannot be used against him, yes.

MR ROBERTS: Except in relation to a charge of perjury.

CALLINAN J: To perjury, yes.

MR ROBERTS: Yes, that was the whole idea, presumably, of issuing a subpoena.

GAUDRON ACJ: Cannot be used against him in legal proceedings, but they could be used against him politically, is that not correct?

MR ROBERTS: No, it is not correct, your Honour.

CALLINAN J: What about for his practising certificate, could they have been used against him in regard to that?

MR ROBERTS: I do not know. I would assume not. They could not be used against him for any purpose, one would assume, except if his answers are untruthful then he could be charged with perjury in relation to an untruthful answer. That is as I understand the nature of the subpoena that was issued against him and its legal effect.

GAUDRON ACJ: Were the grand jury proceedings in private?

MR ROBERTS: Which?

GAUDRON ACJ: The grand jury proceedings in which it was asked the questions. The investigation, the investigative proceedings.

MR ROBERTS: Yes. This was instead of a grand jury.

GAUDRON ACJ: Yes.

MR ROBERTS: This is just merely the investigator asking - - -

GAUDRON ACJ: In private.

MR ROBERTS: In private, recorded, of course, as I understand it, because - - -

CALLINAN J: He has the powers of a grand jury then.

MR ROBERTS: Yes, that is so.

GAUDRON ACJ: And the answers could never be disclosed?

MR ROBERTS: Well, I am not sure about that. There is no evidence in relation to disclosure. I mean, they were disclosed. They were disclosed to some extent in the court proceedings. The questions were revealed, presumably in public. I take it the proceedings were in public.

GAUDRON ACJ: You presume they were, the court proceedings?

MR ROBERTS: Before Judge Dean.

GAUDRON ACJ: Yes.

MR ROBERTS: There is nothing to indicate that they were not in public. As one would anticipate, all court proceedings unless otherwise specifically declared to be private, would be in public, the same as would happen here. But, your Honours, returning to the decision of the Tribunal, we would respectfully submit that far from being anything illogical in the reasoning process, the decision was inevitable on the evidence that was before the Tribunal. It clearly was a decision that was open to them.

KIRBY J: If there is a point in this case, and it is a point that is more important than Mr Gersten, it is whether section 75(v) includes review for what has been called Wednesbury unreasonableness. Now do you accept that it does or does not?

MR ROBERTS: Your Honours, we accept that in the joint judgment of Chief Justice Gleeson and Justice McHugh, I think in Eshetu, there is a suggestion that Wednesbury unreasonableness could constitute a ground for review under section 75(v), but there is no suggestion there, and we respectfully submit, or anywhere else, that the reasoning in Australian Broadcasting Tribunal v Bond 170 CLR in the judgment of then Justice Mason, does not set out the correct position in relation to that matter. At page 355 and following, where there is a review of fact finding as a ground of judicial review, and there is reference to - - -

KIRBY J: But this was under the Administrative Decisions (Judicial Review) Act.

MR ROBERTS: Quite so, but it is Wednesbury unreasonableness, and this has always been the position, as we understand it. At the top of 356, for example, there is reference there to:

it is said that "there is no error of law simply in making a wrong finding of fact" -

and Waterford's Case is given, and there is there quoted the judgment of Justice Menzies in District Court; Ex parte White:

"Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law."

And then there are various other references to the alleged "no-sufficient evidence" test and setting that aside. Basically what was said there is, because it is said to be illogical does not mean to say that it is legally wrong and therefore there could be no jurisdictional error in those circumstances.

GAUDRON ACJ: That seems to be talking purely about findings of fact. The issue before the Tribunal in this case was not confined to the making of findings of fact. There were a number of legal issues to be considered along the way.

MR ROBERTS: Well, a state of satisfaction is said to be a finding of fact, so basically one in a circular way is going back to - - -

GAUDRON ACJ: I mean, for my part, I may be wrong in this, but it does not seem to me that the unreasonableness and the causation arguments are totally separate. They seem to me to be very closely related. But if there is a question about that, whether it be put in terms of logic or law, it is not purely a question of fact, is it, that issue, whether, to use Mr Jackson's language, Mr Gersten was the author of his own misfortunes. It is not purely a question of fact in this case, is it?

MR ROBERTS: Well, your Honours, it probably is when one comes back to the question at issue, in order to be - I mean, this jurisdictional facts so-called argument that has arisen basically comes back to the question of unsound reasoning in relation to findings of fact, be it to state of satisfaction or some other matter, but in the end we are talking about evidence giving rise to particular facts or states of satisfaction. That really is what we are talking about one way or another.

KIRBY J: That might be the conclusion one finally draws but it seems to me the strength of Mr Jackson's argument, if it has a strength, is he says that passage on 47 where the Tribunal said, "It may be that the Applicant is right in his assertion as to the motivation of his political opponents", is to be read as indicating, "We are not going to inquire into whether or not the prosecution against him and the proceedings against him are politically motivated". His point, as I understand it, is that is an illogical reasoning and it is impermissible because that was the very case that he was bringing to the Tribunal and the very issue they had to address. Therefore, to the extent that they said, "We are not going to address it because we put to one side the motivation", they were robbing him of his case. They might reject his case, they might say it is absurd, they might dismiss it, but they cannot ignore it. That, as I understand, is the argument of illogicality or Wednesbury unreasonableness in their decision.

MR ROBERTS: Your Honours, if that is the argument, we suggest that it has no substance at all because what the Tribunal has done is to assume in his favour that there was some political motivation. Assuming that to be so, which is a very large step in his favour indeed, they were able to - or the Tribunal was able to resolve the matter, even assuming that in his favour. So it cannot be said that it is illogical reasoning. Even assuming that in his favour, it still did not assist the applicant in demonstrating that he was the subject of Convention persecution or would be the subject of Convention persecution. So to argue that that is an illogicality, we would submit, is, in itself, illogical.

To assume in his favour something could never, we would respectfully submit, be an example of illogical reasoning. If that is the way in which it is said that this is illogical, the Tribunal was perfectly entitled to go about its reasoning process in the fashion that it did, in the most favourable fashion to this applicant. To assume that as being a fact that was made out or assumed to be so and then look at it from that angle, self-evidently, we would submit, was the most favourable way that the Tribunal could deal with the matter. Far from being illogical, we would submit the reverse is so and we would respectfully submit that this is not an appropriate case to explore the boundaries of Wednesbury unreasonableness and section 75(v).

GAUDRON ACJ: Perhaps we will see how far we can explore those issues at 2.15, Mr Roberts.

MR ROBERTS: If your Honour pleases.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GAUDRON ACJ: Yes, Mr Roberts.

MR ROBERTS: Your Honours, if I could just make a couple of further points if I may. The crux of our submission in response, I suppose, is encapsulated in paragraph 20 of our written submissions. I will not endeavour to repeat that in different language, but that is what we say in response to almost the totality of what our learned friends have put.

In relation to the findings of the Tribunal, could we point out the following matters. In the application book at page 48, lines 15 through to 25, the Tribunal set out the submission of the applicant at lines 15 through to 20. At line 25, the Tribunal said that it did not accept that reasoning, so it rejected the submission that was put in relation to things that had occurred in the past. At page 49, line 25 firstly, the Tribunal said it was:

not satisfied that any harm which the Applicant suffered in prison occurred for reasons of his political opinion.

At line 36:

The Tribunal notes the Applicant's submission that he was -

or possibly would be -

placed in a perjury trap, and that, in itself, is a form of serious harm.

The Tribunal does not accept this submission.

So these are findings of fact. We submit that they were perfectly logical and, indeed, ineluctable in the circumstances.

Your Honours, we further point out that Mr Gersten has never been charged with perjury or, indeed, any criminal offence and it is, in our submission - - -

KIRBY J: He says, no doubt, that that is because he fled the United States of America and resorted to this country and claimed refugee status.

MR ROBERTS: Well, there is no such finding in relation to that; it is pure hypothetical speculation and the Tribunal has found that he has available to him the protection of United States courts which, obviously, since he has never been charged with any criminal offence - - -

GAUDRON ACJ: He has been charged with contempt.

MR ROBERTS: That is a civil contempt, yes, your Honour.

GAUDRON ACJ: Yes, but, I mean at least under our law, that distinction is not so clear as to make contempt inevitably other than a criminal offence, is it?

MR ROBERTS: Well, it - - -

KIRBY J: You lose your liberty, as he did for three weeks.

McHUGH J: And for that reason we require to be proved beyond reasonable doubt.

MR ROBERTS: True. Well, there was no question it was proved beyond reasonable doubt in this case, your Honours.

McHUGH J: No.

MR ROBERTS: He just said, well I have got a good reason for refusing to obey the order of the court, which, with respect, would not constitute a defence in Australia either if someone was charged with the same offence, be it criminal or civil.

So, it is a bit difficult to submit that the courts in Florida, both State and federal, do not constitute a protection that can be availed of if he were to return to the United States if it were thought fit to incarcerate him further pursuant to the writ that apparently is still extant. So, in our submission, your Honours, it just simply cannot be said that this man is a refugee in any sense of the term and certainly not in terms of the Convention. He is merely somebody who has availed himself of the guise of an applicant for refugee status to remain in this country for a very long period of time, the application first having been made in 1993, and we are still eight years down the track and it still has not been decided.

KIRBY J: Surely the applicant is not entirely to blame for that?

MR ROBERTS: Not entirely, no, but, your Honours, obviously, by resort to every conceivable avenue of appeal he obviously has caused this situation to come about. Unless there is any particular matter that your Honours wish me to expound upon, those are the submissions of the respondent.

GAUDRON ACJ: Yes, thank you, Mr Roberts. Yes, Mr Jackson.

MR JACKSON: Your Honours, may I deal first with the question of Wednesbury unreasonableness. A section 75(v) case in which that issue was adverted to is Re Moore; Ex parte Co-Operative Bulk Handling Ltd (1982) 56 ALJR 697. Your Honours will see immediately under the headnote that they were applications for prohibition and mandamus to the Conciliation and Arbitration Commission, and in the right-hand column there is the last paragraph above "Motion dismissed" but about 10 lines into the paragraph before that, their Honours say:

The weight to be given to a relevant consideration is a matter for the Commission to consider. If it were to be established that undue weight had been given to a particular matter, that might show that there had been an erroneous determination, but it would not show a want or excess of jurisdiction, unless the conclusion reached was so unreasonable that no reasonable tribunal could have reached it.

Your Honours, that case was one of a number referred to with apparent approval by Justice Mason, with whose reasons Chief Justice Gibbs and Justice Dawson agreed, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at page 41.

Your Honours, the passage is one - this is not the case, I am afraid, on our lists, I do not think. I will not read the passage, except for the essential part of it. The passage relevantly starts at the bottom of page 40, and goes through at page 41 to page 42. Having referred to the observations of Lord Greene in Wednesbury Corporation, Justice Mason says, at about point 6 on page 41:

in which his Lordship said that it would only be made out -

that is, the Wednesbury ground -

if it were shown that the decision was so unreasonable that no reasonable person could have come to it. This ground is now expressed in ss. 5(2)(g) and 6(2)(g) of the A.D.(J.R.) Act in these terms. This test has been embraced in both Australia and England -

and a number of cases are referred to. That was a five-Judge case. Could I refer, also, your Honours, to - - -

KIRBY J: Was that in the context of 75(v) of the Constitution, or generally?

MR JACKSON: He was speaking generally, and said that the Wednesbury test had been incorporated into two provisions which he nominated of the AD(JR) Act. However, your Honour, the first case to which I referred was a section 75(v) case - - -

KIRBY J: Yes.

MR JACKSON: The actual issue did not have to be decided, but it is apparent that the five members of the Court did not regard it as in any way unusual or strange to have a section 75(v) case of that kind.

Your Honours, section 75(v), of course, is a provision which whilst one finds it in the Constitution, the remedies to which it refers are not only on constitutional grounds or indeed necessarily only on jurisdictional grounds because what is provided for is remedies which go to decisions, whether the basis of attack is constitutional or some other purely administrative law basis and the ambit of them will depend, your Honours, from time to time, on what is the view taken as to the appropriate grounds. Could I refer also, your Honours, to what - - -

McHUGH J: What about the question Justice Kirby asked you about interpreting the Constitution. Should we approach it as if the Constitution was enacted yesterday, or should we approach it as if it was enacted in 1900?

KIRBY J: Be careful how you answer this one.

HAYNE J: Other than briefly.

MR JACKSON: Your Honour, there is a number of answers to that, your Honour, and may I - - -

HAYNE J: I am sure they are.

MR JACKSON: All of which, your Honour, I will come back to in the end.

KIRBY J: There are seven.

MR JACKSON: Well, it depends at what time one is answering that question. But, your Honours, could we say that one answers the question today or when the judgment is given, the answer is interpreting the Constitution as a living instrument, but one with historical background, what is the answer today. Your Honours, that works on the assumption that not all knowledge was fixed as at the time of the Constitution, on the one hand. On the other hand, the language of the Constitution provides the indication and what it means is to be worked out as - the existence of the provisions of section 76(i), for example, indicates, the meaning of it will be worked by courts from time to time.

GAUDRON ACJ: It must be the case, must it not, that at least in some cases a decision infected by Wednesbury unreasonableness could constitute a constructive failure to exercise jurisdiction?

MR JACKSON: Indeed, your Honour.

GAUDRON ACJ: The more interesting question is whether every case must be either a want or excess of jurisdiction.

MR JACKSON: Your Honour, it depends - - -

GAUDRON ACJ: You certainly put your case on a failure to, constructive failure.

MR JACKSON: Yes, I do, your Honour. Could I say, and this really reflects something your Honour said, I think, in Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at page 554, paragraphs 114 to 116. This is a submission I made earlier this morning. It concludes what your Honour said in paragraph 116 by saying:

As with the rules of procedural fairness, it is difficult to see why, if a statute which confers a decision-making power is silent on the topic of reasonableness, that statute should not be construed so that it is an essential condition of the exercise of that power that it be exercised reasonably, at least in the sense that it not be exercised in a way that no reasonable person could exercise it.

KIRBY J: What paragraph was that?

MR JACKSON: Paragraph 116, your Honour. It follows the conclusion of discussion in at least paragraphs 114 and 115. Could I just say that it is difficult, with respect, not to draw an analogy with the position which obtains in relation to lack of procedural fairness. Your Honours will appreciate the notion of lack of procedural fairness no doubt reached its more modern form in the post-World War II period. It had always been something that was there, variously expressed, but not expressed in the variety of ways also fulsomely, as it was expressed in, for example, cases like Twist v Randwick Municipal Council and other cases flowing from there, one question being: was it something that should be attributed to Parliaments not as a fetter on the exercise of legislative power, but as something which Parliament would be taken to have implemented, absent some indication to the contrary?

McHUGH J: But that raises the vexed question, Mr Jackson, as to what is the true basis of the natural justice application to statutes as to whether or not it depends upon parliamentary intention which has been the conventional view or whether, as many writers now argue, is it the common law itself that really imposes on it. That is, perhaps, the only explanation, rational anyway, of courts striking down prerogative powers by administrators or executive power.

MR JACKSON: Yes. Your Honour, the two are not necessarily mutually exclusive. If one speaks about the position in relation to, for example, statutory powers, there is no difficulty in taking the view that part of the common law, as a matter of its interpretation of, for example, Parliament's intention in the first place, is saying that when Parliament legislates, it legislates in accordance with the common law but Parliament has the power, by expressing itself sufficiently, to overrule the common law.

When one comes to the application of notions of that kind to the exercise of powers which are not statutory powers, then it is not very difficult, your Honours, to take the view that either the common law says that a similar notion applies to the exercise of powers and develop a common law which has developed over the years from the days of pure arbitrary kinship, as it were, but at the same time to say, as well - it is not necessary to say it, but it is possible to say it, and that in relation to the exercise of those prerogative powers, that the fact that Parliament has not legislated in relation to them, indicates that Parliament is "parliamentary content" as it were, with the fact that, in their exercise, they are to be treated as subject to the same prima facie rules as those which apply to the exercise of statutory powers.

Now, your Honours, there is, as with so many doctrines of the general law, if I could put it that way, perhaps no entirely satisfactory or entirely historically, absolutely valid means of resolution of these things. But, your Honours, what I was going to say was that if there is a notion - and your Honours, the Court has said there is - if there is a notion that, for whatever be the precise reason that the question of procedural fairness is one which, in the end, goes to the manner in which powers are to be exercised, so that if it is not followed then the exercise of the power is vitiated.

The underlying reason for the adoption of such a view must be that the power is one which is to be exercised in a manner which is fair, and it is easy to elide things and to slip from one to the other, but there seemed an equal justification for saying that in the absence of some parliamentary indication to the contrary, that the exercise of the power is one to be reasonable, at least in the sense that Wednesbury unreasonableness confers, that is not to be so unreasonable that no reasonable person upon whom is conferred the power could exercise it in that way.

McHUGH J: I must say for a long time I have thought that Wednesbury unreasonableness probably is within the 75 jurisdiction by invoking the process of reasoning that the Court adopted in the Stevedoring Industry Authority. That is to say that in that case they said the inadequacy of material on which to act is not a ground for prohibition, but it may indicate the Tribunal has not properly understood the question referred to it or is not in reality satisfied of the proper matters that it was required to take into account.

MR JACKSON: Well, your Honour, if one is speaking about section 75(v), many powers that are the subject of section 75(v) are ones which could be sought to be attacked either by prohibition injunction or mandamus. Many of them involve the exercise of powers which are either discretionary in the strict sense or discretionary in a sense akin to that because they involve consideration of a number of matters - akin in the sense that, say, an assessment of damages in a personal injuries case is akin to a discretionary judgment.

Many exercises of those powers, if one were dealing with it by way of injunction, could be attacked, one would think, on the basis that there had been any of the usual ways of attacking it: error of principle, failure to take into account relevant matters and so on. One of those bases, of course, is the dragnet or catch-all basis of saying that the exercise of the power is so remote from the statutory purposes for which it must have been conferred that it is vitiated.

Now, your Honours, that really seems, in principle, very little different from saying Wednesbury unreasonableness and the point I am seeking to make about that, your Honours, is that there is nothing inherently foreign to section 75(v) in speaking about Wednesbury unreasonableness.

McHUGH J: I am not sure why one has to even use the term Wednesbury unreasonableness. For all that you know it is a decision and evidence and a result which is so unreasonable that it is a reasonable inference that the Tribunal has misconceived its function, or even if it has rattled off the appropriate formula, you may be able to conclude that in reality it did not understand the rule that it was purporting to apply and, therefore, there was jurisdictional error.

MR JACKSON: Yes. Your Honour, one falls into the description "Wednesbury unreasonableness" because, I suppose, it is a shorter way of saying what Lord Greene said with all its qualifications and difficulties. Your Honours, I was going to say one other thing in relation to it. In Eshetu (1999) 197 CLR 611 at page 651, paragraph 131, going through to paragraph 135, the quotations there referred to are ones which are referred to also in Foley v Padley which is the case referred to in paragraph 134.

Now, your Honours, those quotations - and if I could just pick one, for example, at paragraph 133 the second quotation there referred to, the second sentence of that quotation from Chief Justice Latham, what the Court does do is to inquire whether the opinion - and, your Honours, could I pause. This is speaking about cases where the statute refers to in the opinion of someone:

whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.

Now, your Honours, may I say two things about it. The first is that his Honour there is speaking about opinions which are: "arbitrary", "capricious" or "irrational". Those would seem to be the same as, or not significantly different from, the conception involved in Wednesbury unreasonableness. So, too, if one goes to the first quotation in that paragraph, your Honours will see the way in which it is put, that:

"Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law - "

Now, "reasonable man" assumes a person acting reasonably, and the point about this is that one is there speaking about the circumstances where the statute requires an opinion to be formed as a condition of jurisdiction, but what is being spoken about is really the extent to which there will be restraint by the courts. The courts will only interfere where one of these things has occurred, because the manner in which Parliament has expressed itself is by reference to the "opinion" of someone, not to the fact. We would seek to say where the requirement is not the opinion of the person but the existence of the fact, then, a fortiori, the circumstances should be such that the opinion is one which, prima facie, subject to parliamentary expression otherwise, is to be formed reasonably.

Your Honours, as to mandamus for constructive failure to exercise jurisdiction, we would refer generally to R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228, and the passage at pages 242 to 243. Your Honours, may I deal then with a number of matters by way of reply to our learned friends. First of all, so far as contempt is concerned, the Tribunal decision does refer to the fact that the applicant could be imprisoned for contempt on return to the US. That is referred to at page 49, about line 31. So far as the case before the Tribunal was concerned, the case before the Tribunal was, in our submission, of the same nature as that which has been presented now.

Now, could I refer your Honours, without going to the passages, to, for example, page 42, line 24; page 46, line 19 and page 48, line 16. Your Honours, as to a jury on a perjury charge, there would be one, we accept that - I am sorry, I am putting that too shortly. In the United States if he were charged with perjury, the question was raised, "Would there be a jury?". The answer is, we accept, yes, there would be.

Your Honours, so far as any further material is concerned that is sought to be relied on by our learned friends, we do not consent to it, the reason being, apart from anything else, your Honours, we do not at the moment know any more than your Honours know about it and it may be that there might be something further that we would wish ourselves to place before the Court.

Your Honours, so far as my learned friend's reference this afternoon to factual findings made by the Tribunal are concerned, we would submit that the references to factual findings which he made, or so-called factual findings, were all made in the context of the view that, in effect, his predicament was all his own work. Could I give your Honours one reference: page 49, paragraph 26.

Your Honours, reference was made to the courts of the United States. What actually happened in those can be seen - if I could just give your Honours briefly the references. Your Honours will see it commences at page 71, paragraph 54 of Justice Katz, on 19 March he surrendered to the Dade County correctional authorities. Your Honours will then see at the top of page 72, paragraph 55 that he commenced proceedings:

in the United States District Court for the Southern District of Florida ("the District Court"), seeking -

relief to prevent himself -

being detained again for civil contempt and of relieving him of any further obligation to comply -

and your Honours will see there set out one of the grounds on which he relied as being there was:

"an abuse of the office of State Attorney for what are blatantly political motives."

Your Honours will then see paragraph 56, he did not pursue the claim for interlocutory relief because there was an undertaking not to have him detained "before the determination of his complaint". Then paragraph 57, there was a motion to dismiss the complaint, there was a hearing of the motion and the judgment was reserved.

Paragraph 58, he went to Hawaii while the judgment "was still reserved". Paragraph 59, judgment was given on the "motion, granting it" and dismissing his complaint. Your Honours will see from the remainder of that paragraph that he made no findings of fact on, for example, that allegation. From there, your Honours, one goes to page 74, paragraph 69. He appealed to the US Court of Appeals for the Eleventh Circuit, and at the top of page - I am sorry, paragraph 70, his "written submissions" were filed "in June and August 1994".

From there, your Honours, one goes to page 76, paragraph 75. The District Court's decision was "affirmed, without reasons". He sought certiorari from the US Supreme Court - that is paragraph 76 - and that was denied without reasons. So that your Honours will see that whilst there was the ability to go to those courts and, in fact, he did go to those courts, what your Honours will see is that the decision was against him without there being any factual decisions involved.

Your Honours, our learned friend's - this is the penultimate, I think, matter to which I wish to refer - said that, in relation to the time this has taken, "Well, every conceivable avenue of appeal has been taken". Well, it is true to say this case has gone through the available range of appeals and other procedures but your Honours will recall that one of the things referred to in the courts below was that there had to be a second hearing in the Tribunal because the member who first constituted the Tribunal ceased to hold office and the whole matter had to start again.

Your Honours, one of the reasons why there is a multiplicity of proceedings, of course, is the separation of functions brought about by the way in which the Migration Act is framed. Your Honour, those are our submissions.

GAUDRON ACJ: Yes, thank you, Mr Jackson. The Court will adjourn briefly to consider the course it will take in these matters.

AT 2.49 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.02 PM:

GAUDRON ACJ: The Court is in a position to give its reasons in these matters now.

The applicant, a citizen of the United States of America, applied for what, at the relevant time, was referred to as "refugee status" in Australia. He claimed that he was unable to benefit from the protection of the United States because of what he described in his application to the then Department of Immigration, Local Government and Ethnic Affairs, as "selective enforcement of prosecutorial authority for political purposes". He said that he "was victim of a crime and the evidence was used against him by political enemies in prosecutorial authority to deprive him of his right to peaceful existence, political career, and liberty."

His application was rejected by a delegate of the Minister in December 1993. In 1998 the Refugee Review Tribunal ("the Tribunal"), affirmed that decision. The applicant sought an order of review in the Federal Court of Australia. That application failed at first instance, and on appeal to the Full Court of the Federal Court.

He now seeks special leave to appeal to this Court and in addition seeks mandamus and certiorari to the Tribunal and prohibition to the Minister. He seeks those writs on the grounds, first, that the Tribunal made the decision it did in excess of jurisdiction in that "in purporting to be satisfied that he is not a person to whom Australia has protection obligations it employed illogical reasoning and made findings of inferences of fact which were not made on logical grounds". The second ground is that there was a constructive failure to exercise jurisdiction by the Tribunal failing to consider whether certain matters were relevant to whether the applicant has a well-founded fear of being persecuted for a Convention reason.

Reduced to its essentials and at the risk of some oversimplification, the applicant contends that he reported the theft of his motor car to authorities in the State of Florida. The investigation of that allegation, according to the applicant, became an investigation into alleged wrongdoing by him. The applicant claims that the investigation was turned against him and was conducted as it was by investigators and prosecutors on account of his political beliefs. In the course of that investigation, the applicant was required to answer questions on pain of penalty. This he declined to do and, as a result, he was dealt with for contempt of court and imprisoned. On the applicant's applications to both State and Federal Courts in the United States, the requirement that he answer questions and the proceedings taken in consequence of his failure to do so have not found to be otherwise than in accordance with law.

The essential complaint of the applicant is that the Tribunal should have found, but did not find, that the various curial and extra-curial processes brought in Florida against him had their origin in his political beliefs. He feared that as a result of his political beliefs he would, if returned to the United States, be placed in a situation where he had to choose between refusing to answer questions and be dealt with for contempt or answer questions which, despite the truth of his answers, would lead him to being prosecuted for perjury.

So far as the application for special leave is concerned, it is sufficient to say that the actual decision of the Full Court of the Federal Court is not attended by doubt. Whatever the position of the applicant under the laws of Florida, the facts as found by the Tribunal, even if amplified in the manner suggested by him, reveal no arguable case that he was unable or, due to a well-founded fear of persecution, unwilling to avail himself of the protection of the United States. Accordingly, there was no arguable case that he had a well-founded fear of persecution. Nothing in the findings of the Tribunal or the further findings which the applicant contended it should have made would allow the conclusion that the protection of the United States was insufficient to protect him from persecution on account of his political beliefs.

Even if account is taken of the additional facts propounded by the applicant, it is not arguable that he had a well-founded fear of persecution and is unable or, owing to such fear, unwilling to avail himself of the protection of the United States. Accordingly, his application for constitutional relief fails.

The orders of the Court are:

(1) Application for special leave to appeal dismissed with costs; and

(2) Application for constitutional and other relief dismissed with costs.

The Court will now adjourn.

AT 3.08 PM THE MATTER WAS CONCLUDED