Appellant S106-2002 v Minister for Immigration and Multicultural Affairs S106/2002 [2002] HCATrans 473 (2 October 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S20 of 2002

In the matter of -

An application for Writs of Certiorari, Mandamus and Prohibition against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

THE REFUGEE REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA

Second Respondent

Ex parte -

APPLICANT S20/2002

Prosecutor

Office of the Registry

Sydney No S106 of 2002

B e t w e e n -

APPELLANT S106/2002

Appellant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

GLEESON CJ

McHUGH J

GUMMOW J

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 2 OCTOBER 2002, AT 10.21 AM

Copyright in the High Court of Australia

__________________

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR L.J. KARP, for the appellant and prosecutor. (instructed by McDonells Solicitors)

MR S.J. GAGELER, SC: If the Court pleases, I appear with my learned friend, MR G.R. KENNETT, for the Minister who is the respondent in No S106 and the first respondent in No S20. (instructed by the Australian Government Solicitor)

GLEESON CJ: There is a certificate from the Deputy Registrar in relation to matter S20 of 2002 that she has been informed by the solicitor for the second respondent, the Refugee Review Tribunal, that the second respondent will not be seeking to appear at the hearing of the application and will abide by any order of the Court, save as to costs. Yes, Mr Walker.

MR WALKER: Your Honours, in both proceedings underlying and essential to any degree of success for my client are a number of propositions about what may vitiate the relevant decision which was, of course, to deny a protection visa. In both proceedings there are, therefore, critical anterior issues of statutory interpretation to which I will turn at the very outset.

KIRBY J: Could you help me as to how we should approach the constitutional writ and the appeal. I am not entirely clear in my own mind, in a sense the constitutional proceedings have a grand importance invoking the Constitution and in a way sweep aside some of the problems that arise in the appeal, but I do not know what the Court says one should do to approach these in a sequence that is appropriate.

MR WALKER: Yes. One way to describe the interrelationship between the two is as follows, your Honour. It is said unkindly, but probably accurately, against us in the written submissions that on the bias point where there is a distinction between actual bias and ostensible bias, the safe refuge that we seek in the constitutional writ proceeding is that we are not restricted as we are on the appeal to an allegation of actual bias and we are therefore spared the well-established strictures by this Court about the high hurdle we have to leap in order to satisfy the Court of actual bias as opposed to ostensible bias. It is unkind, but accurate, that that is a distinction and that explains one aspect of the relationship between the two proceedings.

KIRBY J: I hate to be adding to the unkindness but, on either basis, it seems a pretty weak bias case, or at least that is my preliminary thought of it.

MR WALKER: Your Honour, it is not printed first in our written submissions, it will not appear first in my address. I am going to try to persuade your Honours that it is not pretty weak, but it is not at the forefront of my argument.

KIRBY J: .....be a pretty weak argument but it does not seem to amount to ostensible bias. But, anyway, let us put that to one side for the moment.

MR WALKER: If I may, your Honour.

GUMMOW J: What do we do - if we would grant you relief under 75(v), what do we do with the order of the Federal Court? This is all a by-product of Abebe, it seems to me.

MR WALKER: It is. That raises rather acutely an issue which might otherwise have been thought to be quite moot because on what your Honour puts to me, relief under 75(v), why do we need to be concerned in particular about paragraph 476(2)(b)? But it might raise the question as to whether there would be an appropriate or a possible order, I should say, allowing the appeal in circumstances which had led to the availability of 75(v) relief.

KIRBY J: There was some discussion of this in the special leave application and one possible reason for dealing with the appeal first is the usual constraint on getting into constitutional matters where you do not have to, but also that, that way, it is left to the Tribunal to sort out facts and we are not embarrassed or do not have to take up our time trying to sort out all the facts in original proceedings in this Court.

MR WALKER: Yes. The way we put the case, certainly on the appeal, this Court naturally does not get into facts. The complaints we make which are materially similar to the complaints we make seeking certiorari in the constitutional writs - - -

GUMMOW J: I am not worried about facts, I am worried about contradictory orders, that is all.

MR WALKER: No, quite so, your Honour. I was about to say that those facts are not going to be material to the difficulty which your Honour Justice Gummow raises. It will depend upon the ground upon which any relief under 75(v) appears to this Court available. Now, that is only the first step. The next question then is discretion. But if the ground upon which it appears available is also a ground upon which an appeal should be upheld which is not discretionary, of course, then one obvious solution to that difficulty is to grant relief on the appeal which will do justice and then the discretion in relation to the writs need not be exercised for the issue of any writ.

Now, that really is not a direct answer to your Honour Justice Gummow but it does answer the question, what if 75(v) relief should be granted, and my first answer therefore is, if it is on a ground which would also ground relief of an appellate nature, then the appeal is the appropriate order first to make. The acute difficulty arises - and this may be purely hypothetical - if 75(v) relief appears available subject to discretion but an appeal must be dismissed. May I shelve or come back to that difficulty after developing some of the arguments. In short, however, I can say this. The way we put the case it does not appear, in our submission, that this is a case which could give rise to that possible divergence.

GUMMOW J: Is that because you bring yourself in 476(1)(a), no jurisdiction?

MR WALKER: Yes.

GUMMOW J: So jurisdictional error is drawn in that way.

MR WALKER: Yes.

GUMMOW J: And it is jurisdictional error which would be the concern with 75(v).

MR WALKER: Yes.

GUMMOW J: So it is the same question.

MR WALKER: Yes. Now, that of course still leaves - - -

GUMMOW J: Section 476(2).

MR WALKER: Exactly.

GUMMOW J: The blow back said to be generated by 476(2) - - -

MR WALKER: Yes. That is why I start by saying that there are fundamental statutory issues, that is one of them, which I will be addressing at the outset.

Your Honours, may I clear the decks so far as the facts which of course are not as factual inquiry before this Court but without which we cannot win. We do have a best point. We have put all the references and the argument about what I will call the shortcomings in the Tribunal's approach in written submissions and issue has been thoroughly joined in the written submissions on whether the pejorative epithets, which have been fairly freely applied to the Tribunal's exercise in this case, amount to anything other than pejorative epithets - inept, incompetent, et cetera. One of the issues in this case of course will be at that factual level as a matter of characterising the way in which the Tribunal concluded its exercise is as to whether it means anything more than that judicial eyebrows may be raised by reading the record in the Tribunal. Certainly, judicial eyebrows were raised in the courts below.

KIRBY J: Every judicial eyebrow.

MR WALKER: Every judicial - - -

KIRBY J: Virtually every judge said that they were not impressed with the reasons.

MR WALKER: Yes. Now, our argument of course is that these epithets are pejorative for good reason, that is they are not merely pejorative, that they go further in the way in which I wish to develop. But at the outset may I say that for the purposes of our argument here in address and without conceding or sacrificing any of the matters of detail which we have to address in our written submissions and have, I will not, unless your Honours seek me to do so, elaborate beyond the point of the use by the Tribunal of the material which was putatively corroborative.

That is what we characterise as our best point and that will provide the sample or the appropriate foundation for our argument about irrationality which we then have to marshal around the statutory poles to which I am about to come.

GLEESON CJ: There may be more than one way of characterising an error and the way in which if the Tribunal made an error the error is characterised might be of relevance to your entitlement to relief. We know that your best point of criticism of the Tribunal's reasoning is the way in which it dealt with the corroborative evidence, but what precisely is the nature of your criticism? In other words, how do you characterise the error? What is the best way from your point of view of characterising the error?

MR WALKER: Your Honour, the best single way is a different question from the best way overall because there is a combination which we can call in aid, and we do, as your Honours have seen in the written submission. But the best single way is to describe the conclusion which consists of the approach to the corroborative witnesses to which I am about to go as one which so lacks rational basis, logical demonstration or a proper regard for the probative nature of material before the Tribunal as not to be a conclusion answering the statutory description in section 65.

GLEESON CJ: What was the specific conclusion, if any, that the Tribunal came to about the corroborative material?

MR WALKER: I try to use the words of the Tribunal because in one sense as a matter of form the answer to your Honour the Chief Justice's question is that no conclusion was expressed about the corroborative witnesses as such, that is, as corroborative witnesses, and that the conclusion was simply the statutory state of non-satisfaction about the applicant being entitled to protection under our international obligations so as to give rise to the section 65/section 36 entitlement to a protection visa.

If I can take your Honours immediately to application book volume 2, page 315, which is where we will cite from the Tribunal's reasons. By way of context, as your Honours well know from the written submissions and from the judgments below, there were three witnesses who could be described as corroborative. Not a single one of them was the subject of any exploration or conclusion by the Tribunal to the effect that they as witnesses or as sources of information were themselves unreliable in the sense either of seeking to mislead the Tribunal, being mistaken or suffering from any species of bias, be it physical, mental or by attachment to the applicant. So none of the orthodox commonsense bases in and out of court in legal life and in ordinary life for doubting those witnesses was available or was used.

They came from three different areas of possible corroboration. To take them in no particular order, there was the air force officer who, if he was accepted - and he was certainly not rejected as a witness - could give evidence fairly contemporaneous with the act of persecution of which the applicant complained - of course, involved at the end of the story but at the end of the story in a highly significant fashion because of the physical observations not only of the release from custody but of the state of the applicant, the woeful physical state, as a result of the maltreatment which must on any view of it have amounted to persecution.

The second corroborative witness is the doctor, the doctor who talks about the inguinal hernia of a kind which, in a person of that age, is suggestive of very severe force of a kind which would normally be called traumatic, obviously consistent with, though not unequivocally suggestive of, an assault. An assault is only one way in which severe force can be applied to the abdomen of course. You could also run into something yourself or have something fall on you, but it was consistent.

Your Honours will immediately recall that when an allegation is contested in an ordinary case, be it criminal or civil, of an assault, of a physical attack by one person on another, one of the most obvious sources of corroboration, apart from eyewitnesses, is somebody who, being a medical practitioner, examines the supposed victim sufficiently soon after to say these are wounds or signs consistent with.

KIRBY J: I thought the problem the Tribunal had was that not accepting the credibility of the applicant, therefore the factual foundation upon which the opinion of the medical practitioner was based was knocked away.

MR WALKER: That is exactly what I am coming to. The context is, as I say, of this ordinary approach to corroboration. One may say in those ordinary cases where a person says "I was assaulted by somebody or other" that it would be unheard of and absurd either to object in relation to admissibility or to reject as a matter of probative contribution the observations of a doctor about broken teeth, black eyes and the like, broken ribs, in an assault case on the basis that the doctor was not there or the doctor could simply be given a history by the person.

The third corroborative witness was the dentist who gave again fairly contemporaneous evidence. Again, it would be absurd in cases of that kind to criticise the contribution such evidence might bring to the adjudication by reason of the person not being an eyewitness. It has nothing to do with it. That is a form of irrationality to dismiss a dentist who examines broken teeth, missing teeth, on the basis that the dentist was not there when the teeth were somehow extracted. The dentist was of course the one subject to the criticism by the Tribunal that to observe restlessness and depression and to raise the issue of post-traumatic stress disorder was beyond the dentist's expertise.

KIRBY J: Dentists do see a lot of stress.

MR WALKER: I would have thought that as causative factors in a great deal of stress themselves, your Honour, that there is little difficulty in a dentist clinically not only being able to recognise people's mental state, but also being required to do so in order to be proper clinicians.

GLEESON CJ: Suppose we came to the conclusion that what appears on page 315 in the second-last paragraph of the page is simply unintelligible.

MR WALKER: Yes.

GLEESON CJ: What would be the legal consequence of that?

MR WALKER: It is a pivotal point in the reasoning, for the reasons I am about to elaborate, simply unintelligible would be, in our submission, from my client's point of view, would be an ideal verbal formula to satisfy whatever appropriate test this Court should pronounce as to an available test of reasonableness or rationality when there is a jurisdictional state of satisfaction required.

GLEESON CJ: One of the problems with that paragraph that I have is to understand what is meant by this expression, "it cannot be satisfied with".

MR WALKER: Yes.

GLEESON CJ: Does that mean he disbelieves?

MR WALKER: No.

GLEESON CJ: Now, another problem with that paragraph is that it seeks to deal in a compendious manner with disparate kinds of corroborative evidence.

MR WALKER: Yes.

GLEESON CJ: On the one hand you have the eyewitness, as it were, the military person, who was said to have rescued your client from some confinement and, on the other hand, you have a medical practitioner who simply observed something that might or might not have been consistent. This paragraph, in a half a sentence, seeks to deal with those different kinds of corroboration.

MR WALKER: Yes. We must beware - that is, for our client we must beware of any argument to your Honours which would tax this Tribunal with the highest standards of judicial reason giving, and we do not. However, on the other hand, the argument against us in relation to matters of that kind gives rise to this question by us. Do the respondents say there is no standard too low for a tribunal approaching a question going to the heart of the exercise committed to it by statute where there is a jurisdictional state of satisfaction required for the exercise of executive power?

GUMMOW J: And an obligation to give reasons.

MR WALKER: And an obligation to give reasons by statute. Is there no standard too low?

GLEESON CJ: Well, the obligation to give reasons must be an obligation to give intelligible reasons.

MR WALKER: Yes, reasons are not, by definition, simply a collection of statements which do not provide that which, in English, we understand by the word, a reason.

GLEESON CJ: If she had said, for example, "I think that the applicant is a fearful liar. I note that there are corroborative witnesses and what I say about those witnesses is, `So what'", or something like that, then that simply would not amount to a reason, would it?

MR WALKER: That is right, and that is partly because in the tension best exemplified, but not solely exemplified in this Court and intermediate appellate courts between, on the one hand, the desire to have justice done according to proper factual findings and, on the other hand, the desire driven by a number of different policies including, but not only including, efficiency, not to interfere with the findings of fact based on credibility for which trial judges or first instance tribunals of fact have peculiar and unique advantages. In that tension, in our submission, one thing is clear, illustrated as it happens in Earthline, that adjudicators of fact are bound to consider all the relevant evidence. That is why it is called evidence and why it is relevant. They may not leave it out.

That is why both in administrative law there is a ground which gives rise to a jurisdictional error, namely failure to attend to relevant material, and in the judicial sphere there is the obligation both of procedural fairness, consider the evidence, and of giving reasons, considering the evidence, however succinctly, both of which are based on the premise that the exercise of adjudication, be it judicial or administrative, involves looking at the material placed before the adjudicator and - - -

GLEESON CJ: I do not understand how you can describe reasons as illogical or irrational unless you think you can understand them.

MR WALKER: Yes. In one sense, the expression "illogical reason" is like the expression "fake diamond" and we submit that so long as the defect is material and big enough, then that linguistic analogy will remain good, that that which is said to be a reason, purports to be a reason, may, even on a first reading, which is this case, and perhaps in other cases on later readings, may emerge as simply no reason at all. In fact, that is an example of how judicial and colloquial usage is exactly the same because in and out of court we do say of people's explanations for some things, "But that is no reason at all, that provides no reason".

GLEESON CJ: Sometimes ungrateful people attribute to judges an attitude of mind which is, "My mind is made up. Do not confuse me with the facts".

MR WALKER: Yes, that is out of court as well, your Honour, as well as in court.

GLEESON CJ: Yes.

MR WALKER: This paragraph is a paragraph in which, for reasons which we will seek to tease out a bit more a little later, the aid provided compulsory to be considered of the evidence which was said to be corroborative was completely spurned. The unintelligibility of it was to say that no weight would be given to it, which is a euphemism for saying it will not be weighed. This is not simply a matter of a weight question about which, of course, reasonable minds might differ. This was, this will not be weighed because of a conclusion about the very matter, should the applicant be believed or not, to which the corroborative evidence was wholly and solely intended to go. This was the classic case of assuming a conclusion.

Now, that is why we call in aid the same unintelligible or clearly wrong approach with respect to the bias claim, both actual and ostensible, because it shows a temporal sequence, not merely an intellectual staging. It shows a temporal sequence, who knows exactly when it occurred, but it certainly occurred before the end of the consideration of the evidence, where this Tribunal closed her mind entirely to the possibility that the corroborative evidence simply would not fit with rejection of the applicant as a liar or a fabulist. That, in our submission, is the heart of the problem revealed on page 315.

Can I, to make good how I opened, simply go very quickly to what we want to say about the statutory provisions in question. If your Honours will excuse me a moment.

GUMMOW J: I do not know about "very quickly".

MR WALKER: Can I quickly turn to it in order to take the time I need to spend on it.

GLEESON CJ: Is Reprint 8 the right reprint?

MR WALKER: That will suffice, yes, your Honour. Sorry, 7 - I am using 7, but I think 8 will serve, your Honour. The differences are very important in other cases, but not in this case.

I do not need, I hope, your Honours, to spend much time on the section 65/section 36 point. I start with them because they are the logical point and we respectfully adopt, as your Honours have seen from our written submissions, what your Honour Justice Gummow said about the fundamental nature, in particular, of the way in which section 65 bestows power, that is that there is what I will call a jurisdictional state of satisfaction, a jurisdictional fact in relation to the entitlement to protection as refugee of the applicant.

Now, in many ways it is useful to say of a jurisdictional fact that it must exist in order for a power to descend upon the administrator and that will in many cases suffice to describe the nature of this Court's and other courts - - -

GUMMOW J: Here it is a duty.

MR WALKER: And I was about to say but in this case we have a much stronger element because this is a duty, there is no element of discretion whatever. The use of the word "power" in this argument, particularly against us, in our submission requires very close scrutiny. In short, we say that to speak of powers in this case is sensible only in what might be called a trivially correct sense, that every person with a duty has a power to do the things necessary to discharge that duty. That is trivially correct and legally it is not significant to call it the exercise of a power when one discharges a duty.

If that be correct, that is going to be of importance, we submit, in the appropriately close reading of paragraph 476(2)(b) to which I now turn. In that paragraph which follows, as has been discussed by this Court in Yusuf, subsection (1) and applies to subsection (1), as the opening words of subsection (2) make incontestably clear, two things are removed from those cases in which grounds set out in subsection (1) are said to base an application. It is not true, if one goes to paragraph (a), which is "breach of the rules of natural justice", that one can see with ease that that provision can distributively apply to each of paragraphs (1)(a) through (g) either with equal cogency or appropriateness.

GUMMOW J: At the time this was drafted it was not yet settled, was it, that a breach of the rules of natural justice went to jurisdiction under (a)?

MR WALKER: I think that is, with respect, correct, at least it became crystal clear - - -

GUMMOW J: It was a debatable question.

MR WALKER: It became crystal clear afterwards that it did.

GUMMOW J: Yes.

MR WALKER: Of course, that is with (a), but it is - - -

GUMMOW J: Likewise to this day, just what Wednesbury unreasonableness means in relation to discretionary powers in terms of jurisdictional error is not settled.

MR WALKER: Yes. My point textually and conceptually is that paragraph 476(2)(a) - just to pick the uncontroversial one in this case first - cannot be said necessarily, either by force of being in that provision or conceptually, that is by its very nature, to apply to every one of the grounds enumerated in paragraphs 476(1)(a) to (g). It applies to some; it does not apply to others; it certainly applies differently to a number of them and your Honour Justice Gummow has identified as a matter of, as it were, legal history, the quirk by which it might once have not applied to (a) but now clearly does.

GLEESON CJ: What is the ground in the Administrative Decisions (Judicial Review) Act that raises this kind of unreasonableness?

MR WALKER: It is paragraph 5(2)(g) - your Honours I think have that in a bundle of legislation - 5(2)(g) which itself is the gloss, the inclusive - - -

GUMMOW J: It is 5(1)(e), is it not?

MR WALKER: Yes, the gloss of 5(1)(e). You go to 5(1)(e) and that requires you to go to 5(2) and the particular ground I think your Honour the Chief Justice was asking about is paragraph 5(2)(g), which is:

an improper exercise of a power . . . including a reference to:

. . .

(g) an exercise . . . so unreasonable that no reasonable person could have so exercised the power.

Again, that word "power" is significant in the AD(JR) Act and, in our submission, for very similar reasons as it is significant - - -

GUMMOW J: Just stopping at (g) for a minute, 5(2)(g), which seems to march with 476(2)(b) - - -

MR WALKER: Yes, it calls up obvious comparison.

GUMMOW J: Yes. Hetton Bellbird and those cases did not use those terms - - -

MR WALKER: No.

GUMMOW J: - - - when talking about the species of error that the High Court was concerned with in those cases.

MR WALKER: Yes. At the moment, if only in temporary deference to what Justice Stone said in the court below about not engrafting things onto common law stock, at the moment I wish to present the argument in terms of the statutory words in question. The first point I have made is that it does not look, once one has looked at paragraph (a), as if section 476(2) is one which casts a backward light on every single ground in subsection (1) and subtracts something from it. It will have an effect on some of them but not all of them. Why then should that not also be true as a matter of the way in which this legislation was enacted and therefore should be read about paragraph (b), which is the one which is in question in this case. You do not start with the assumption that this is a statute which, as it were, extracts from grounds to which paragraph (b) speaks something from each and every one of (a) through (g).

KIRBY J: I read that in your submissions but I wondered if that is accurate. Given that we know that the history of the exclusion was an endeavour by the Federal Parliament to cut back on judicial review which has been, as Justice Sackville pointed out in his essay in the University of New South Wales Law Journal, a bipartisan phenomenon in the last decade. Why would we not read 476(2)(b) as a deliberate and emphatic attempt by the Federal Parliament to cut back on manifest unreasonable review in respect of all of them.

MR WALKER: Because the words do not say that - - -

KIRBY J: I wonder about that. I think you are the one who is wanting to slip words in.

MR WALKER: No. At the moment I am about to put an argument, your Honour that is apropos the quotation from Justice Madgwick which concludes Justice Stone's reasons in this case and quite simply there is loose paraphrase involved in speaking elliptically of review on the ground of unreasonableness. That is not what paragraph (b) says.

GLEESON CJ: What do you make of the opening words of subsection (2):

The following are not grounds upon which an application may be made under subsection (1) - - -

MR WALKER: What we make of it is that subsection (1) says what are the available grounds and subsection (2) says what are unavailable grounds.

GLEESON CJ: They are unavailable under subsection (1).

MR WALKER: They are unavailable under subsection (1), at first sight perhaps a curious - - -

GUMMOW J: It becomes circular, because (1) says subsection - that (1) opens subject to subsection (2). You go round and round.

MR WALKER: Yes, and (1) also says:

application may be made . . . on any one or more of the following grounds -

Subsection (2) says it may not be made on these grounds. There is a lot of abundant caution going on in the drafting of these provisions, but understandably because it has long been appreciated that in any particular case, and perhaps even conceptually as a general rule, the heads of common law established judicial review of administration action may overlap, and in particular some are rated higher levels of generality than others.

GUMMOW J: Anyhow, subsections (3) and (4) are important too, are they not?

MR WALKER: Yes, your Honour. I am going to come to the way in which they may cast light on this exercise in a moment.

GUMMOW J: Because (1) and (2) are talking about grounds as it were.

MR WALKER: Yes.

GUMMOW J: Freestanding ideas of administrative law.

MR WALKER: Yes. So text is used to convey concept, and the concept is one which pre-exists. Now, it is true that when there is a positive bestowal of a ground of review, that positive bestowal in the legislation must be given its statutory meaning, and it is not to the point that it may either extend or restrict a hitherto understood judge-made view of an available ground. What Parliament has said will govern. That is the proper approach to the positive grant of jurisdiction, for example in the AD(JR) Act.

GLEESON CJ: If you compared this with the AD(JR) Act, 5(2)(g) is an elaboration of the concept of improper exercise of a power.

MR WALKER: Yes, your Honour. An exercise of power of course is not the universe of section 5(1) of the AD(JR) Act. Some are simply the making of decisions and others are the exercise of power.

GLEESON CJ: If you read 476, as it were, informed or predisposed by a reading of section 5 of the AD(JR) Act, you might be tempted to think that section 476(2)(b) was a qualification of 476(1)(d).

MR WALKER: Yes, your Honour. In our submission, there is no reason for your Honours to resist that temptation, no reason whatever. The language is there, "exercise of a power". The text therefore does not require that section 476(2)(b) be read as if it involves a subtraction from what would otherwise be the case of each and every one of 476(1)(a) to (g) but the text, the actual words used, in our submission, are sufficient to provide that as the conclusion for this reason: not every one of the grounds in 476(1)(a) to (g) is expressed as being concerned with the exercise of a power.

Of course, it is trivially correct that making a decision, which it is either one's duty to do or which is a prerequisite of another duty, as in this case, involves using power which is normally implicit in having a duty. In our submission, that is only trivially correct and Parliament has said by its different use of language, decision and power, that not all decision making collapses into being talked about as an exercise of power. As a matter of ordinary English and, in our submission, as a matter of administrative law usage, the exercise of a power as opposed to the discharge of a duty is an understandable and correct distinction which is not blurred by observing that everybody with a duty has the power to carry it out. It is not blurred because on the one hand there is mandatory outcome - that is the duty - and on the other hand there is a range of discretionary possibilities - that is the power.

It is for those reasons that the language which must be construed as terms of art - this is lawyers' law - 476 is about making applications to court. It involves concepts described as grounds - that is jurisprudence. In our submission, notwithstanding the legislation deserves to be read according to its own language without excessive cramping of it or distorting of it by preceding judge-made law, the term of art "exercise of power" clearly calls up exactly what your Honour Justice Gummow discussed in Eshetu in the passages we have relied upon so heavily in our written submissions, that is the distinction between a jurisdictional fact preliminary to the carrying out of a duty on the one hand, and the availability of a discretion or power of a range of possible outcomes, none of which is mandatory, on the other hand.

GLEESON CJ: It is necessary for you to go that far? In England nowadays, as I understand it, leaving aside the interesting question about degree of unreasonableness that is necessary, unreasonableness is treated under the rubric of abuse of power, is it not?

MR WALKER: Yes, your Honour.

GLEESON CJ: That again fits in with treating (2)(b) as qualifying (1)(d).

MR WALKER: Yes, your Honour.

GUMMOW J: There has also been decisions, I think in the Federal Court - I know Pashmforoosh was one - in which what is now 476(1)(g) material justify making it the decision was somehow caught up as Wednesbury unreasonableness. In other words, it was said that the fact-finding process went so skewed that the outcome was unreasonable.

MR WALKER: Yes. The way we use the tag "Wednesbury", that would not be Wednesbury unreasonableness, that would be the lack of the jurisdictional fact.

GUMMOW J: I know, but you have to put yourself in the place of the hapless draftsman.

MR WALKER: Yes, your Honour.

GUMMOW J: You have all this miscellany of cases before the Court, which do not necessarily fall into a clear pattern.

MR WALKER: That is why I say, your Honour, the overlap and doubling up and the circularity, perhaps, certainly the super-irrigation in subsections (1) and (2) does not call for - and it would be impertinent of us to make any criticism of it - it is understandable, more abundant caution in order to delineate that which is available and that which is not available, but if something is available then it remains available. What 476(2)(b) does not do is to remove the ordinary meaning of any of the grounds in 476(1), we submit. All it does is to eliminate that which is a ground:

that the decision involved an exercise of a power that is so unreasonable -

et cetera, and if there was no - - -

McHUGH J: One problem I have, both with your argument generally, and I have to say understanding it, is you keep talking in positive terms, making a decision.

MR WALKER: Yes.

McHUGH J: But the decision here consists of double negatives. The decision was not being satisfied that the other criteria for a protection visa had been satisfied.

MR WALKER: Yes, and then must refuse. The actual decision is to refuse.

McHUGH J: Yes. What do you say is the decision?

MR WALKER: The actual decision in terms is found at 316 line 45 of application book volume 2, which is the affirming of:

the decision not to grant a protection visa.

GLEESON CJ: Well, in the language of the statute, both in the body of section 65 and in the heading of section 5 it is a decision to refuse to grant.

MR WALKER: That is right, under paragraph 65(1)(b), in answer to your Honour Justice McHugh's question, by reason of, as we put it, the jurisdictional state of satisfaction, that is:

if not so satisfied -

the duty then is and the decision must be -

to refuse to grant the visa.

Now the word "refuse" is not used.

McHUGH J: Part of the problem I have in understanding your argument, I have to say a few cases....I feel so much at sea is that I just have real difficulty in dragging the Wednesbury-type argument into these negatives. I mean, Wednesbury cases are usually concerned where somebody does something, imposes a condition, but when somebody says "I am not satisfied that a fact exists", for example, I just have real difficulty with applying Wednesbury to that negative.

MR WALKER: First, we do not seek to apply Wednesbury. Ours is not a Wednesbury argument.

McHUGH J: I know that.

MR WALKER: Ours is a rationality argument. It may be cousin germane to Wednesbury, but only in a very, very broad sense. It really only shows that there are standards too low for decision making, whether they be discretionary or mandatory. We are not applying Wednesbury, but if I take your Honour's question as the difficulty your Honour has with applying irrationality, which is an excessively terse expression for what we have put in our written submission, but your Honours would understand that as meaning the kind of lack of reason which - - -

McHUGH J: Yes, but decisions are made in courts every day, perhaps even by judges, but certainly by juries where they cannot assign a reason. A jury may say, for instance, "I just don't like this prosecution case. There's something about it. I can't tell you what it is, but I don't like it. I'm not satisfied beyond reasonable doubt".

MR WALKER: In our submission, no help and some harm will be obtained from speculating about how a jury bound not to give reasons may proceed, when one is thinking about administrative actions which do have to be accompanied by reasons. That is the first thing. The second thing is that there cannot in principle be a difference between the application of whatever standard of reasonableness be appropriate to an affirmative decision, somebody should enjoy benefit X, and a negative decision, somebody should not enjoy benefit X. There is nothing in principle to distinguish between the two and the notion of onus, particularly in administration, will not, in our submission, in any way suffice to supply a reason of principle for distinguishing. The decision, whether it be positive or negative, either is or is not subject to some test of reasonableness. We submit, on the basis of the authorities we have cited in our written submissions, there is a test of reasonableness or, to put it rhetorically, yes, there are standards too low for such jurisdictional states of satisfaction.

If that be so, then, to use the hackneyed example, if the colour of somebody's hair is used to decide, yes, entitled, or, no, not entitled to protection under the Convention, then equally and for the same judicial reason that administrative non-reason, purported reason or spurious reason, will be the ground upon which the lack of jurisdiction to grant or to refuse will be demonstrated, and we put it as a lack of jurisdiction.

Your Honours, I think earlier your Honour Justice Gummow raised paragraph 476(1)(a). I think when I answered I had in mind paragraph (b).

GUMMOW J: Yes, I am sorry, I meant (b).

MR WALKER: Yes. I think I understood your Honour's question as meaning (b).

GUMMOW J: Now, in Wednesbury - the red hair comes from Wednesbury, does it not?

MR WALKER: I think it must be older than Wednesbury but it is certainly in Wednesbury. I am sorry, I think it is in Wednesbury.

GUMMOW J: At [1948] KB at 229 what Lord Greene said was, in one sense:

it is taking into consideration extraneous matters.

MR WALKER: Yes. Your Honour, that is a very good example of what - - -

GUMMOW J: Then he said:

it might almost be described as being done in bad faith . . . these things run into another.

MR WALKER: Yes, and the running into another is one of the reasons why it is no objection that there are conceptual overlaps and that the Court, in our submission, should be astute not to construe the separate text of paragraphs (a) through (g) in subsection (1) as if they are watertight compartments.

GUMMOW J: Yes, and I would hope the draftsman is a person who has read Wednesbury.

MR WALKER: Yes - well, yes and no.

GUMMOW J: It is pretty basic administrative law.

MR WALKER: Wednesbury in relation to exercise of power, yes. If anybody, however, as the respondent clearly does submit, were to impute to the draftsman of paragraph (2)(b) that it removes all reasonableness challenge from, for example, a lack of jurisdiction ground, paragraph (1)(b), then they would be imputing, in our submission, to the draftsman a rather slap-dash reading of Wednesbury and, again - - -

GLEESON CJ: Another way of putting it would be to say that the purpose of subsection (2) is not to immunise unreasonableness.

MR WALKER: No, that is right.

GLEESON CJ: It is not to produce the consequence that any time a criticism of unreasonableness is one way of characterising a problem, the problem is withdrawn from jurisdiction.

MR WALKER: Yes, your Honour. Now, that must be so when one considers the difference, as a matter of policy as well as principle, between lack of jurisdiction, paragraph (b), and improper exercise of power, paragraph (d).

In the latter we know from subsection (3), which is an important provision contextually and from paragraph (d) of it, that taking into account an irrelevant consideration will not be included. We also know paragraph (e) that "failing to take a relevant consideration into account" will not be included. We even know that exercising it in bad faith will not be included. But when one considers the nature of jurisprudence about jurisdictional facts, if there is one thing that is clearly established, and is by no means by subsections (1) and (2), is the proposition that somebody who never in good faith - that is, who in bad faith does not take into account what has to be taken into account, takes into account things that should not be taken into account, like colour of hair, and therefore finds a fact without which he, she or it does not have a duty or power, then, in our submission, there is lack of jurisdiction - well established, Buck v Bavone - will do as one important example of that.

GLEESON CJ: There is plainly overlapping between the grounds in subsection (1), is there not?

MR WALKER: Yes.

GLEESON CJ: If you had a case that fell within paragraph (f) or paragraph (g), it could well be a case that would also satisfy the description subsection (2)(b).

MR WALKER: Quite so, as a matter of statutory drafting. This is a draftsman who carefully looked at the grounds which were made available and then in subsection (3) - see Yusuf -deliberately glosses that and changes it from the anterior understanding that would have been supplied by judge-made law but does not do that to (b), for example. Does not do that to (c), for example, and that reason is a matter of policy must be obvious.

There is the world of difference from what one might call an improper exercise of an undoubted power - a power involving the exercise of a discretion which undoubtedly is available - and not having the right to do anything at all because a jurisdictional fact is not available, not being authorised or not having jurisdiction.

GUMMOW J: I think it is not against you but is there not something in what Justice McHugh has been putting to you? It is one thing to say a decision is unreasonable - in Wednesbury to attach the conditions about children going to the cinema on Sundays - it is another thing to investigate anterior fact finding made necessary before you can reach a decision or before you are obliged, in fact, to make a decision.

MR WALKER: Yes. There are two parts to my answer, the first is a general law part and the second is how to apply this in light of paragraph 476(2)(b).

If a decision, on its face, together with the reasons that come as part of the record, can be seen to turn upon the red hair then, in our submission, notwithstanding it is the kind of decision - refuse or grant - which, in the nature of things must flow dichotomously from every case. It will not suffice to defend that decision, to say "but red hair was simply part of the way in which he, she or it got to the final conclusion" because the decision is the outcome of the administrative process required by the statute on the grounds required by the statute - and in this case the stat eof satisfaction is the relevant ground - and it is everything inherent in that decision - in this case, explicit in the decision - there is no difficulty about record or knowing - which then falls for scrutiny as to reasonableness or not.

KIRBY J: Could I just ask: is the argument that - in terms of legal analysis, this is not a decision at all? There has been a constructive failure to make a decision and that therefore within the statute it is not an "decision"?

MR WALKER: Yes.

KIRBY J: That decision is not a section 65 decision, is it? That is the Minister's decision. It is a section 430 decision.

MR WALKER: It is 65, 5, 430, yes, your Honour.

KIRBY J: It is 65, 5, is it?

MR WALKER: Section 65 provides the substance of what - - -

KIRBY J: But that is the Minister, is it not?

MR WALKER: Yes, 65 - but 415 - I am sorry, the Tribunal - 414 is the compulsory view. Section 415:

(1) The Tribunal may . . . exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

(2) The Tribunal may:

(a) affirm the decision; or

(b) vary the decision -

et cetera, and under subsection (4):

the Tribunal must not . . . purport to make a decision that is not authorised by the Act or the regulations.

KIRBY J: Now, which section is that, I am sorry?

MR WALKER: Subsection 415(4). That is how one gets then back to section 65.

KIRBY J: But it is the Tribunal's "decision" under the Act that you say is not a true decision as contemplated by the Act.

MR WALKER: Yes, because the Tribunal is bound by the strictures which bind or bound the Minister under section 65. That is what section 415 means. Being bound by those strictures - and this is a familiar pattern, stepping into the shoes of - - -

KIRBY J: Now, I thought I said something like that in Rajamanikkam but I was in dissent. Have you looked at - I noticed it is in Court. Somebody must have looked at Rajamanikkam.

MR WALKER: Your Honour, may I take that on notice in terms of whether something that your Honour said, being in dissent, casts any adverse light on what I have been putting. With respect, I think not, but - - -

KIRBY J: I do not remember it in detail, but I thought there I was also thinking in terms of constructive failure to exercise jurisdiction, as the Act contemplated. Anyway, you take it on notice and have a look at that.

MR WALKER: Yes. In this case we call in aid the older law about what it means to act outside jurisdiction, to commit jurisdictional error or to get a jurisdictional fact wrong, and getting it wrong has to be understood in a specialised administrative law sense: asking the wrong question, taking into account irrelevant considerations, failing to take into account relevant considerations, bad faith, and lack of any probative support or logical justification - red hair. Now, red hair is therefore common to a Wednesbury attack on an exercise of power, an abuse of power, the miscarriage of a discretion and also to the inquiry, has the jurisdictional fact - in this case the statutory requisite state of satisfaction - actually come into existence? Ours is the latter case, not the former. That is why we jib at describing this as a Wednesbury challenge and prefer, with respect, to adopt the label, with all its vices of irrationality.

Your Honours, the pattern therefore of section 476 reveals very clearly that it would be an error, and was an error, by the majority below to read paragraph 476(2)(b) as if exercise of power reached back simply to the implicit "goes without saying" capacity, as we would put it, to make decisions and consider evidence leading up to the decision, which it was a duty to make. In particular, textually, we would add this reason to the reasons that Justice Finkelstein advanced - - -

KIRBY J: On your theory does 476(2)(b) attach at all - - -

MR WALKER: Yes, it does.

KIRBY J: - - - because it postulates a decision, ie a statutory decision?

MR WALKER: Where the decision involves an exercise of power as opposed to the discharge of a duty, then 476(2)(b) plainly withdraws jurisdiction from the Federal Court.

KIRBY J: But if it is not a true decision at all, then it is a nullity. It has no legal effect and therefore 476(2)(b) cannot attach to it.

MR WALKER: No, but I am distinguishing between - - -

KIRBY J: You just ignore it. That is what the Court said in another recent decision; just ignore it.

MR WALKER: I am distinguishing between exercises of power, meaning those things within discretion where there is no obligation to decide one way or the other, and what is this case, namely there is an obligation to decide one way or the other: yes or no, refuse or grant, depending upon a jurisdictional fact, namely a state of satisfaction. That jurisdictional fact is different from a jurisdictional fact which might have been framed as: is entitled to protection of the Convention. It is being shifted one remove away from that jurisdictional fact which would be at large in this Court but that does not render it any the less a jurisdictional fact for the reasons that Justice Gibbs pointed out in Buck v Bavone.

The fact that it is a state of satisfaction means that it must be explored. Was there a state of satisfaction? There are standards too low for what I will call recitation of outcome to be a state of satisfaction and those standards include a standard of rationality or exclusion of irrationality, total lack of logic. Red hair seems to be accepted in all of these areas of discourse as an illustration of the kind of thing which will not stand but it is simply a colourful description of matters which could be a failure to take into account relevant considerations, certainly taking into account irrelevant considerations, but also the bad faith possibility and equally, cogently, a lack of logic. There is no logical link in many cases between the colour of one's hair and one's entitlement or not to administrative bounty.

GUMMOW J: Legislators have jibbed really at authorising or approving complete lack of logic, so you could have had a section which said, "If this person is a refugee, they must be given a visa".

MR WALKER: That jurisdictional fact would require full judicial inquiry.

GUMMOW J: Exactly. So the legislature then says, "If the Minister is satisfied". Then in the thirties the courts came back and said that means "reasonably satisfied".

MR WALKER: Yes, because it is to be assumed that Parliament posited a person acting reasonably, understanding the law, applying it correctly.

GUMMOW J: There is some notions of logic involved in giving a reason. The legislature then has not come back and said, "It doesn't matter. It can be illogical".

MR WALKER: And that is because, your Honour, one - - -

GUMMOW J: But what they do come back with is a privative clause. That seems to be the sequence of it all.

MR WALKER: Yes, your Honour. There is obvious social and political difficulty in a law which in effect says with sufficient plainness to satisfy the requirements of this Court for plainness in such cases on the say-so of somebody, regardless of the mentation that went into it, certain drastic consequences will follow. Drastic consequences can include all manner of things, including temporary custody before being deported, for example.

So, leaving aside the question of power which may arise when and if such a law appears and leaving aside the privative clause questions which do not arise in this case, we are left with a jurisprudence which insists that when something in the nature of a satisfaction is to be the requirement before something may be done or must be done and when in particular at the first level of merits review that requires reasons to be given, one knows beyond any doubt that there are standards too low. How to describe those verbally is difficult enough. We have essayed that exercise, largely, we confess, thesaurus style by collecting what is available, and, with great respect, we are really adopting what your Honour Justice Gummow said in Eshetu on that point. That is old established law, in our submission.

McHUGH J: There is even older established law which, I think, might have been a tragedy not to put in the forefront and that is what was said by this Court, a judgment obviously written by Sir Owen Dixon, in the Australian Stevedoring Industry authority case 88 CLR, which always seemed to me to be a better answer to these problems than talking about Wednesbury unreasonableness or irrationality and so on. At page 120 their Honours say:

The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.

Now, I have always thought that was a much better solution to these problems than worrying about Wednesbury unreasonableness and - - -

MR WALKER: That is why I assumed Wednesbury unreasonableness. What their Honours there describe as the inadequacy of the material is plainly inadequacy, not as a matter of volume, but as a matter of quality.

McHUGH J: Yes.

GUMMOW J: Yes.

MR WALKER: For those reasons - volume may come into it, of course, but it is quality, and so the same concept precisely is conveyed by inadequacy as is conveyed for our purposes by unreasonableness or irrationality. Not only do I not need, we positively spurn, the label "Wednesbury" before "unreasonableness". We do not need it, do not want it. That is a form of challenge which needs to be peculiar because that is a challenge to an undoubted power or discretion. There is the power of discretion to impose conditions on Sunday trading.

GUMMOW J: There is a later case called Klein v Domus in this Court, too.

McHUGH J: Yes, in 109 CLR.

GUMMOW J: Yes, which does not refer to Wednesbury.

McHUGH J: No.

GUMMOW J: Sir Owen Dixon saying how that works.

MR WALKER: And, your Honour, in answer to your Honour Justice McHugh's suggestion, may I say this, that with great respect to your Honour, to their Honours in the Stevedoring Case and to your Honour Justice Gummow, there is not, with respect, material difference from what is being said and, in particular, the authorities collected and the principles enunciated from them by your Honour Justice Gummow in Eshetu, are, in our submission, on all fours with, not further than and not below what is said in Stevedoring. In short, the concern has been lawfulness and that, in our submission, when it comes to jurisdictional fact, jurisdictional error, authorisation by a statute, always involves inquiring has the jurisdictional fact been made out?

GUMMOW J: Yes, well there was reference in Australian Stevedoring to Hetton Bellbird, I think.

MR WALKER: Yes, which is a very important part of your Honour's reasoning in Eshetu.

GUMMOW J: That was all tendered to me in Eshetu, but the problem really is that Australian administrative law has developed by shoving up in a room and locking it all the cases decided under 75(v) in the industrial sphere.

MR WALKER: Yes.

GUMMOW J: For the people who are deciding these cases in the High Court under 75(v) something like Wednesbury unreasonableness would not have struck them as the new covenant.

MR WALKER: No. In our submission, the significance of Wednesbury lies in the fact that it is about discretionary power and that it extends, as it were, the proposition there is a standard too low, even to things which were undoubtedly within power, namely to impose such condition as one thinks fit. That was the contribution which went further in Wednesbury. That is why it is important in relation to discretionary powers. We are back at a more old-fashioned, fundamental question, "What does the statute say must exist before certain things are done? Answer: state of satisfaction. Question: what is this, a state of satisfaction? Answer: yes or no, depending upon matters of quality." Now they, of course, are questions of degree which is why the written submissions join issue as thoroughly as they do in relation to the shortcomings of the Tribunal in this case.

I do not wish to elaborate on what I have already said in opening about the approach to corroborative witnesses which is self-defeating, which was spurning the gift offered in the difficult question of deciding whether somebody is telling the truth or not and which was, we would respectfully adopt, the language of your Honour the Chief Justice which was in the upshot unintelligible. Now, was it immaterial is the only other thing that is left against us on that point. No, if it is a pivotal point because the lack of reason, the unreason or irrationality is displayed, "I will not consider the evidence that might cast light on whether or not somebody is telling the truth because that person is not telling the truth." That is an absurdity. An absurdity is a good description of the kind of outcome and we stress outcome, not mere process, which does fall below the requisite standard.

CALLINAN J: I am concerned about the standard, Mr Walker. Should it be any higher or any different from a decision which is so bad that it is incomprehensible?

MR WALKER: It should not be - - -

CALLINAN J: Might that not be an appropriate standard? No matter how bad the decision is, it is still manifestly a decision and, therefore, a decision that the reviewing court under 481 can understand and see, despite how bad it might appear to be.

MR WALKER: Your Honour, one can detect and, in that sense, understand the logic or irrationality. One could understand a decision that says the applicant has red hair, whereby he could not have been in such and such a place at such and such a time. One can understand that. What one cannot understand is how the one follows from the other. One cannot understand how that circumstance could have contributed to the outcome, but one can understand if it is written in fluent English that that is the process by which the outcome was reached. So intelligibility in this - - -

CALLINAN J: Does that tell you more than that the decision on the merits is wrong?

MR WALKER: Yes, it does a lot more than that, in our submission. There is the world of difference between an exercise in this case whereby the corroborative evidence was evaluated for what it was worth, rather than not being weighed at all and coming up with what might have been, all the judges would have said was the very surprising outcome, that none of this happened. We would not have a case if that had been carefully done. We have a case because it was not done at all. This is not an outcome-oriented argument that we put, although it is because of the outcome that we are here and that there is a matter within the meaning of the Constitution. But it is not unreasonable or not depending upon what the result was. It has to be in the quality of the decision.

Now, it is for those reasons, in our submission, that sometimes there will be an outcome which could not possibly be justified. Other times there will be an outcome which may or may not be justified and it will depend upon whether it was. This case is almost certainly in the latter category, that is, we are not able to say on the material before this Court there was one and one only decision available. It is tempting to say that it was an immensely powerful case, but at the heart of all such applications is whether or not somebody is believed or a version is accepted.

CALLINAN J: Is it possible to say that there was a non-exercise of jurisdiction in the failure to consider the corroborative evidence?

MR WALKER: Yes, that the state of satisfaction that this person was not entitled to protection can be seen in one stroke because it comes with the reasons which are required to have consisted of ignoring for reasons which are fake diamonds, they are not reasons at all, for unintelligible explanation - see 315, about line 45 - putting to one side, not weighing at all, the very material which was essential to consideration of the approach which was taken, "I do not believe him".

CALLINAN J: Is that a kind of alternative submission? There was an incomplete exercise of jurisdiction to which mandamus should go.

MR WALKER: Yes. It is another way of supporting the argument we put.

GLEESON CJ: By "ignoring" in that submission you just put you meant "refusing to consider" as distinct from "overlooking"?

MR WALKER: Yes, your Honour. This is no accident. This is highly deliberate.

GLEESON CJ: It was 50 years ago there was said to be a judicial officer of New South Wales who could never disbelieve anybody who came from north of Chatswood. Now, maybe there are some people who have difficulty believing anybody who comes from the north-west of Broome. Such a person, if it appeared from what were said to be reasons for a decision, if a person actually said that, that would be a refusal to make a decision, would it not?

MR WALKER: Yes. It would be other things as well to which I am about to come but, yes, it would, your Honour.

KIRBY J: The problem with your logic is that it really does invite a lot of applications to this Court, and perhaps the Full Court too, in which there is going to be a necessity to go over the detail of the reasons under the rubric of lack of logic. But, in fact, getting into all the factual analysis which this Court in Guo and many other cases has said should not be done in this pernickety way.

MR WALKER: Might I try to persuade your Honour to the contrary? Eshetu, the way in which it was done in this Court - the outcome, what it stands for - is all that is necessary to discourage any such disguised merits review. But every jurisdictional fact argument, because it may have the potential to lose, is an argument which may at the end of the day be said to have involved an impermissible venturing into merits. Hence, Sir Anthony Mason's caution in both Peko and Bond as it happens.

The fact that that is, as it were, the dark side of the applicant's argument does not mean that those arguments either are not available or should not be put or that the law should be framed in a way which prevents people from putting jurisdictional arguments that says, this is not a state of satisfaction. The decision-maker said it was, the statutory language has been used, but lawfulness depends on substance, not on incantations, and this person could not have been satisfied within the meaning of the statute.

That is, in our submission, as far as we are going. We are not opening any floodgates to merits review. All we are doing is in a very familiar track positing that there are cases where a choice will need to be made between whether this was a jurisdictional fact not existing or whether, in truth, it really is only an extreme matter of merits disagreement.

We are not positing anything new or different, your Honour, in proposing the tests which emerge from the old law collected in Justice Gummow's reasons in Eshetu.

GUMMOW J: Some of the old law - I think there is a lot more old law - that was an attempt to stimulate people like you to find it.

MR WALKER: Your Honour, that which is in the written submissions - - -

GUMMOW J: I am not a one-man research centre.

MR WALKER: That which is in the written submissions is the high point for our argument. There is, in our submission, nothing better to be found.

Your Honours, concluding on this part of the argument, could I take your Honours in application book volume 2, page 368, to the way in which Justice Stone dealt with this matter of corroborating evidence. I do not suggest that it is particularly clear. At the top of page 368 her Honour notes that counsel for my client:

referred to the Tribunal's statement that it could not be satisfied with and gave no weight to the corroborating evidence of the appellant's witness.

That is the passage at 315 to which I went first. Then there is a quotation from that. Then there is a reference to the submission, similar to the one I am about to put about bias. Then in paragraph 84, her Honour continued:

In my opinion, this conclusion -

that is actual bias -

is not warranted. While the comment may raise an impression of bias, it is also consistent with the Tribunal forming a strongly negative but preliminary view about the appellant's credibility -

and we would stress the word "preliminary". This is a case of two shoes dropping and one does not hear the second drop because the Tribunal never went past what her Honour calls a "preliminary view".

It is worth noting in this regard that the witness's evidence did not address, and therefore could not resolve, aspects of the appellant's case that were crucial to the Tribunal's dissatisfaction -

That had to do with the so-called inconsistency with which we have dealt entirely in our written submission. There is no other part of her Honour's reasoning which is agreed in by Justice Hill in which the argument about the failure to be satisfied within the meaning of the statute by reason of the spurning of the corroborative evidence is dealt with by her Honour. In our submission, it comes close to an error similar to that which was committed by the Tribunal itself.

At page 370 in the book there is contained her Honour's references to the point we have been making about paragraph 476(2)(b). In our submission, at paragraph 92 line 50 or thereabouts there is error by her Honour and thus by the majority below. At line 94 her Honour said:

When one considers the provisions of the Act which govern judicial review, it is clear that the legislature intended such review to be limited -

That, in our submission, is not an appropriate approach. The proper approach is to ask what the legislation says. Resort to explanatory memoranda, in our submission, is no substitute for the text. Her Honour said:

In this context, it is not appropriate to limit the effect of the restriction imposed by s 476(2) -

and then a phrase that we do challenge -

by seeking to graft it onto common law stock.

In our submission, it is just not possible to read 476 as if it sprang without any history, without any background and without any reference to which its terms could attach. Whether one calls that common law, judge made, previous statutes or the expectations of terms of art in a lawyer's law provision, her Honour's rejection of the argument is wrongly based. On the top of page 371 comes the quotation from Justice Madgwick, which we challenge, line 14 or thereabouts:

His Honour made the point that s 476(2) specifically excludes as a ground of review the question of whether a decision is so unreasonable that no reasonable authority could have made it.

Now, the short point is that can only be described as loose paraphrase, because 476(2)(b) says no such thing. Paragraph 476(2)(a) speaks about decisions, as do certain grounds in 476(1). But like 476(1)(d), 476(2)(b) talks about a decision involving an exercise of power - important words which are omitted and, in our submission, fatally omitted by the approach taken by Justice Madgwick, Justice Stone and Justice Hill in the majority.

Your Honours, that then leaves me with the questions of bias. As to actual bias, it is clear beyond any capacity of us to argue to the contrary that the hurdle is a high one. The language saying so is collected in written submissions. It is put against us in effect because the material from which you seek the finding of actual bias is material which comes at and, indeed, constitutes the end of the process, that makes it very difficult as a source of material to demonstrate that some time before the end of the process a mind was closed.

Now, the answer to that is that actual bias is too salutary a jurisdiction to be circumvented by silence during a hearing so that the first speech is at the end. The second thing is of course it will be an interesting, perhaps difficult exercise in some cases, to perceive from the end point that some time before the end point a mind was closed. But this case is somewhat different and easier for us in that regard for these reasons. The very passage to which we have gone repeatedly at 315 in volume 2 of the application book shows that in a temporal sense, not merely an intellectual sense, a sequence was achieved by which the mind was closed before the time when all the evidence should have been canvassed intellectually and weighed against the corroborative witnesses.

KIRBY J: This is again my anxiety about where you are leading us in this beguiling argument because at least with Wednesbury it is a very high barrier to jump over. It has to be no reasonable person, whereas you are effectively saying without identifying any line in the sand that would guide appellate courts that every time something that strikes the appellate court as unsatisfactory illogical in the reasoning is going to open up the review by the appellate court and that is really going to necessitate going every time into the detailed factual analysis of every case.

MR WALKER: No, your Honour.

KIRBY J: That does not seem to square with the design of section 476.

MR WALKER: Well, perhaps it would not square with more general judicial requirements as well, your Honour, in terms of eschewing merits review. Our case is not imposing any new task on the Court.

KIRBY J: You are really being very critical of the Tribunal which is a lay body.

MR WALKER: It is professional, your Honour.

KIRBY J: It is a professional body and I understand that it makes very important decisions affecting people's life and, in some cases, safety.

MR WALKER: It is not a charity exercise, your Honour. They are professional people and I do not mean belonging to a profession necessarily, but they are doing a job.

KIRBY J: Yes, and I do not underestimate the importance of the job, but I just do not know where one would then, if your theory of the statute is right, draw the line between criticism of the logic - after all, even our judgments are criticised from time for time for illogicality. Now, do not say anything about that, please.

MR WALKER: I am not going to say anything, your Honour.

KIRBY J: Do not enter that territory. I mean, where does one draw the line between the decision which is so illogical that you feel you have to enter upon it and say it is not really a decision at all and the decision which shows flaws in reasoning with leaps of the steps of argumentation that do not seem to hang together?

MR WALKER: It will be supplied in old words, not new words, and I am quoting now from that passage in Buck v Bavone which, in turn, in one of its many citations is quoted by Justice Gummow in paragraph 136 of Eshetu and my answer to your Honour's question is that there was a requirement of good faith and that can include considerations of what does "illogic" demonstrate. It may, as Justice Dixon and others pointed out in the Stevedoring Case, involve questions about whether there has been, in fact, the administrative Act required, the decision or state of satisfaction. It cannot act merely arbitrarily or capriciously.

GLEESON CJ: Well, this is a very familiar problem in relation to disputes between the Tax Commissioner and taxpayers.

MR WALKER: Yes, your Honour.

GLEESON CJ: There are many provisions of the Income Tax Assessment Act that turn upon the opinion or state of satisfaction of the Commissioner.

MR WALKER: Yes.

GLEESON CJ: And a couple of cases earlier than the case that you were earlier referred to in 88 CLR, there is a decision of Justice Fullagar in a case of Australasian Jam Company v The Commissioner of Taxation in which he was dealing with an argument about an opinion formed by the Commissioner about whether something involved tax evasion, and Justice Fullagar said at page 37 of 88 CLR, the statute:

"means to withdraw from the consideration of the court the correctness of the opinion of the Commissioner upon the matter in question." In order that the appeals should succeed, it is necessary that I should hold that the opinion was not in fact entertained, or that it was based upon a misconception of the meaning of the word "evasion", or that it was arrived at "capriciously, or fancifully, or upon irrelevant or inadmissible grounds" - - -

MR WALKER: Yes, your Honour, and the passage from Justice Gibbs is on all fours with that and goes on in a way that is not inconsistent with anything said there. For example, having referred to the relevant irrelevant matters, goes on to say, in a way reminiscent of a quite different area of law, but of similar judicial approach, namely discretionary judicial judgments - House v The King - goes on:

Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it.

"Reasonableness" there properly positing the particular authority required by the statute because of the nature of the authority, who constitutes it, what they are doing, what decisions they make, what the state of satisfaction is about, all has to be taken into account. In our submission, there is nothing new or awful in the prospect that our argument holds out.

KIRBY J: I tell you what is new. What is new is that there is a lesser inclination nowadays in people to accept primary decision making and there is a mass jurisdiction in this area that opens up, if your theory is right - and it may well be - the prospect of countless cases of analysis of the logic or lack of logic of decision making by the Tribunal and then by the single judge and then the Full Court and then they will come up here.

MR WALKER: But, your Honour, the same thing can be said about what this Court has repeatedly laid down in relation to the appellate review in the judicial system of first instance findings of fact and there is nothing, in our submission, objectionable in the principle that this Court has repeatedly enunciated as a matter of policy that it provides the vade mecum for those who do wish to challenge. This is what you have to do if you are going to challenge. It is not an objection to a statement of principle in those terms that this may serve to encourage the litigious.

KIRBY J: I take that point.

MR WALKER: The same thing is true here. It is not an objection to what we put and not originally. It is not an objection to what Justice Gibbs was saying when he states the unreasonableness criterion of review that that provides the prescription for those who are minded not to defer to what authority has decided. That is not only no objection but, as with appellate reticence in relation to findings of fact, it is in reality an admonition to restraint not only by litigants but by courts. After all, his Honour ended up that passage by noting that where the jurisdictional state of satisfaction concerned what his Honour calls a matter of opinion or policy or taste, it is going to be very difficult to show error. In our submission, to enunciate principle in that fashion does not fall foul of the inquiry in this Court: what floodgates may this open?

KIRBY J: The point of difference from the factual analysis of appellate courts, to which I am sympathetic because terrible mistakes can be hidden in facts, is that we have here a particular jurisdiction where the Federal Parliament has enacted 476(2)(b) which, at least on a superficial reading, unless one takes the definitional point that a seriously illogical decision is not a decision at all, appears to be the Federal Parliament's addressing itself to this type of problem and saying that these are not going to be grounds of review in the Federal Court.

MR WALKER: They do not say that, with respect, specifically with respect to (1)(b) or (1)(c). The preceding law was very clear, namely that there were standards too low in relation to reasonableness or probative material or logic which would disqualify a purported state of satisfaction from being a true statutory one. The draftsman illustrated by subsections (3) and (4) that when pre-existing state of law was to be qualified or butchered, then it would be.

KIRBY J: Yes, but the face of the statute does not draw a distinction between the paragraphs of subsection (1). It appears in 476(2) to be applied to the whole of subsection (1).

MR WALKER: But that is a subsection which says that these are unavailable grounds following the list of those which are available grounds. The available grounds do not become unavailable because other things expressed differently are said to be unavailable. There is no trace that when Parliament talked about no jurisdiction or no authority in subsection (1)(b) and (c), they were talking about something different from the understanding of that at the time before and since. That is why it is significant that subsections (3) and (4) illustrate the ease with which the parliamentary capacity to change that nature of something very important, namely jurisdiction and authority, a matter of lawfulness, and restricted their attention in paragraph 476(2)(b) to the mode of exercise - that is use or abuse - of something clearly within jurisdiction, namely the exercise of a power.

In that sense, it can be said that there is no statutory intention, no positive enactment in section 476 which to any degree cuts back the availability of the several ways - see Justice Gibbs in Buck v Bavone - by which a statutory requisite state of satisfaction may be challenged as not in truth existing.

KIRBY J: Is that equivalent to saying that subsection 476(2)(b) says what it says; it does not say that the decision or purported decision involve an exercise or purported exercise of the power?

MR WALKER: No, it goes further because it says that the section is not drawn so as to omit the word "power". The paragraph is not drawn so as to say in making out grounds in subsection (1), no support may be sought in the proposition that the decision was so unreasonable that no reasonable person could have so made it. It did not say that at all. The difference between an exercise of power and a decision simpliciter is illustrated within subsection (2) itself but also, for what it is worth, within subsection (1). To take that which has been, we would submit, as elementary as a rationality requirement of some kind to a jurisdictional fact, namely relevant or irrelevant considerations, the draftsman has very clearly limited the exclusion of that consideration to one, not all, of the grounds in subsection (1) and that, significantly, was a ground which involves an exercise of power.

A distinction can be discerned in that fashion in the parliamentary approach to restricting an attack on the exercise of a power that is a discretion, on the one hand, and the lawfulness question, the threshold question of jurisdiction or authority, on the other hand. It could not be argued, with respect, that irrelevant considerations have been excluded from a jurisdictional attack under 476(1)(b).

Now, for similar reasons, in our submission, the argument ought to be rejected that says 476(2)(b) excludes reasonableness as a criterion of validity from matters which are not just exercises of power, but are quite different and beyond that, such as the threshold for the exercise of a duty, as opposed to a power.

Your Honours that leaves then only the question of actual and ostensible bias. All I wanted to complete in relation to actual bias is that, in our submission, the critical passage in the Tribunal's reasons do show that at a stage before it should have been done, the mind was closed and that notwithstanding the lack of any of the antecedent statements, both at the trial and before the trial in Vakuata v Kelly, the lack of anything of that kind in this case, one can, applying the general approach of Vakuata v Kelly, namely, look at the reasons and draw conclusions if one can about what might be said about the nature of the impartiality. In our submission, it can also be seen as if it were narrated for us by the Tribunal herself that there came a point when there was not going to be the fair-minded, open-minded approach to the corroborative witnesses which an appearance of impartiality would require. For those reasons, in our submission, it is not objection to our ostensible bias case that it requires retrospective attribution of a lack of apparent impartiality by reason of the final reasons. May it please your Honours.

GLEESON CJ: Yes, Mr Gageler.

MR GAGELER: Your Honours, we propose to deal orally with four things which we hope have a logical order to them. The first is to take up your Honour the Chief Justice's invitation to characterise with some precision the error of which the applicant complains. The second is to go to the law to demonstrate to your Honours that as a general principle an error of that kind is not an error of law in accordance with a line of cases even older than Bellbird Collieries, and to demonstrate to your Honours that it is similarly not a jurisdictional error in accordance with the line of cases that one can trace back to Bellbird Collieries, the two lines of cases being brought together, in our submission, in Australian Stevedoring in 88 CLR.

The third thing is to show that no different result would apply in the context of the Migration Act by virtue of section 430 imposing a duty to give reasons, and then finally in relation to the appeal only, to deal with the construction or ambit of section 476(2)(b). Save for those four matters, we are content to rely upon our written submissions.

Dealing first with the characterisation of the error, it is, in our submission, analytically useful to adopt the distinction that one finds in the judgment of Justice Fullagar in Hayes v Federal Commissioner of Taxation, [1956] HCA 21; 96 CLR 47 at 51, repeated most recently in the joint judgment in Vetter v Lake Macquarie City Council - I do not ask your Honours to turn to these - 202 CLR 439 at 450. That analysis distinguishes at a very elementary level between three things: One, to give it a Latin tag, the factum probandum, the ultimate fact in issue before a Tribunal. The second, the factum probantia, that is the primary facts upon which the ultimate fact might be found to exist or not exist and then, thirdly, at a lower level, the evidence upon which the primary fact may or may not be based.

Applying that distinction to the present case, the ultimate question of fact for the Tribunal under section 415 of the Act was to determine whether or not it was satisfied for the purposes of sections 65 and 36(2) that the applicant had a well-founded fear of persecution if he were to return to Sri Lanka. That was the ultimate question of fact. A primary fact adduced by the applicant to seek to prove that ultimate fact was that he had been imprisoned and tortured in Sri Lanka by the security forces because of his suspected connection with the LTTE.

KIRBY J: Which was the ground that he relied on, the Convention ground? It could not have been ethnicity because he was Singhalese, was he not?

MR GAGELER: It would have been imputed political opinion, your Honour.

KIRBY J: I see.

MR GAGELER: Then the evidence - at the lower level, the evidence upon which that primary fact was sought to be established by the applicant consisted of four things. One was his own testimony. The second was the testimony of his witness, Mr Kadigamuwa. The third was the letter from the Sri Lankan dentist and the fourth was the letter from the Australian doctor. Now, however it is analysed, the essence of the applicant's irrationality complaint is the Tribunal erred in making or, perhaps more properly, failing to make, a primary finding of fact. The error of the Tribunal in making, or failing to make, the primary finding of facts is not that it is said the Tribunal could not come to that conclusion. It is on any view accepted by the applicant that it was open to the Tribunal to reject all of the evidence placed before it.

The complaint is about the way in which the Tribunal reasoned from the evidence to get to the primary finding of fact, and it is said that the reasons given by the Tribunal for rejecting the evidence at page 315 are unreasonable, illogical, irrational or perverse or some combination of that terminology.

So when one comes to characterise with some precision what the error is here it has two very important characteristics. One, it is an error in making a primary finding of fact and second, the nature of that error is that it is said to involve a want of logic in making that primary finding of fact.

KIRBY J: Well, that is the way you put it. The other way of putting it is it is the error of failing to address attention to the decision that is required, which, by focusing on some only of the facts and not on others and ignoring the others, not addressing correctly the statutory incorporation of the Convention.

MR GAGELER: Your Honour, what the applicant seeks to do in making such a submission is to blur the distinct levels of decision making to which I have referred, that is to blur the ultimate decision into the primary finding of fact and there is no doubt that the Tribunal correctly understood the nature of the ultimate decision the Tribunal was called upon to make and the Tribunal understood that if the primary factual contention put forward by the applicant was accepted, that would lead to the ultimate finding being in the applicant's favour. But the error is at a much lower level; the error is at the analysis of evidence and it does not go higher.

KIRBY J: But if you make the error the lower analysis, you do not get to the decision that you are required by the statute to make. That is the argument.

MR GAGELER: That is the argument, your Honour, but the argument has no element of novelty. Arguments of that nature have been dealt with in the courts repeatedly and, most particularly, under the rubric of error of law. So if one starts, for the purpose of analysis, with accepting in accordance with Craig and Yusuf that an error of law will be an error going to jurisdiction, the first question that one encounters is whether want of logic in making a primary finding of fact constitutes an error of law.

Now, that is, if put as a proposition, a proposition which no authority in this Court supports and a proposition in respect of which Bond is direct, unanimous and relatively recent authority against. I propose to take your Honours to Bond in a moment, but the point I want to make in advance of Bond is that that point, the want of logic was not - - -

GUMMOW J: Bond was construing the term "decision" under an enactment, was it not? The AD(JR) Act.

MR GAGELER: Yes, but more, and I do want to take your Honour to that.

GLEESON CJ: In this dichotomy of law and fact, a question of whether evidence is capable of amounting to corroboration is usually regarded as a question of law for the judge and a question of whether it amounts to corroboration is a question of fact for the jury. That is a common distinction that is made in a criminal trial.

MR GAGELER: Yes.

GLEESON CJ: Suppose in the present case, the member of the Tribunal, upon coming to the matter of the corroborating evidence, simply misstated the corroborating evidence, in other words, she gave an account in her reasons of the corroborating evidence that was wrong in fact indicating that she had misunderstood it.

MR GAGELER: Yes.

GLEESON CJ: What kind of error would that be?

MR GAGELER: That would be an error of fact.

GLEESON CJ: Now, suppose she then added a sentence saying, "It follows that there was no evidence capable of corroborating the applicant". What kind of error would that be?

MR GAGELER: An enhanced error of fact.

GLEESON CJ: Suppose she did not recite the corroborating evidence at all but simply, having stopped short at her recital of the evidence of the applicant and her reasons for doubting it, said, without going into any other detail, there was no evidence capable of corroborating the evidence of the applicant.

MR GAGELER: Again, at most, an error of fact and not very different from one of the errors dealt with in Bond's Case where it was said in argument and rejected by the High Court that an error in overlooking corroborating evidence vitiated the decision of the Australian Broadcasting Tribunal, but I will come to that in just a moment.

Before I do some to Bond the point that I wish to make is that it is very much an outworking of the traditional error of fact/error of law distinction that one sees going back, at least in this Court, to the decision of Sir Owen Dixon in Clark v Flanagan, [1934] HCA 73; (1934) 52 CLR 416 at 427 to 428. In the New South Wales Supreme Court to decisions of Sir Frederick Jordan, starting with McPhee v Bennett, (1934) 52 NSWWN at 8. One sees going through the decision of Sir Frank Kitto in New South Wales Associated Blue-metal Quarries[1956] HCA 80; , 94 CLR 509 at 511 to 512, and probably finding its strongest expression in the decision of the New South Wales Court of Appeal in which your Honour Justice Kirby participated, in Azzopardi.

KIRBY J: I remember it well and I always thought it was wrong. I thought the Federal Court has disproved the Azzopardi line?

MR GAGELER: Not at all, your Honour. The Federal Court has taken up the Azzopardi line in Epeabaka to which we refer in our submissions. That is not to say there is not a difference of opinion within the Federal Court but the Full Federal Court has decided that Azzopardi is correct.

KIRBY J: The notion that a perverse finding of fact does not reveal an error of law in a court of law of our judicature is one I will never accept -never, ever.

MR GAGELER: Of course, your Honour did not discard the entire line of authority but your Honour was concerned with an appeal from a court of law and your Honour placed some emphasis upon that as a point of distinction. But the decision of Justice Glass, particularly at pages 155 to 156, brings together all of that line of cases.

GUMMOW J: They are construing particular statutory appellate provisions. They talk about questions of law and questions of fact.

MR GAGELER: Your Honour, they are concerned with an appeal.

GUMMOW J: They are not an administrative structure, they are a judicial structure.

MR GAGELER: That is one point of distinction which, if anything, might make the form of review more liberal and that was his Honour Justice Kirby's point in dissent. But what they are very much concerned with is an appeal or a review which limited to error of law.

GUMMOW J: No, an appeal; a statutory appeal of some species.

MR GAGELER: Limited to an error of law - - -

GUMMOW J: Yes.

MR GAGELER: So, the question of what is an error of law and what is an error of fact was very much at the heart of it. Your Honours, can I come to Bond [1990] HCA 33; 170 CLR 321.

KIRBY J: If you take the view in this case that if there is an error on the part of the Tribunal it is an error of logic or of the process of reasoning or of expounding reasons but it falls short of perversity, then you really do not get into the Azzopardi line of territory. One day I would like - I am speaking only for myself - have a chance of looking at this Azzopardi territory. Is it essential to your reasoning, to the argument - - -

MR GAGELER: Not if your Honour does not get to that point regarding the reasoning is perverse, no.

KIRBY J: Because one could say here that the Tribunal wrote a not very convincing decision without making all the analysis of the facts and without considering all the facts, but that the conclusion is not within those authorities perverse.

MR GAGELER: Yes. Well, your Honour has seen that in our written submissions. We do make those submissions. If your Honour was to accept that, your Honour would not get to this point of my argument.

GUMMOW J: But where do you fit in Australian Jam Manufacturers?

MR GAGELER: I fit that comfortably in but best dealt with at a later stage of my argument, your Honour.

GUMMOW J: All right.

MR GAGELER: Australian Broadcasting Tribunal v Bond: the first thing to be said about it is if your Honours turn to page 381, your Honours will see the provision with which the Court was concerned. It was section 88(2)(b)(i) and the point to be made is that Bond was concerned with a satisfaction case, that is, where the jurisdiction of the Tribunal turned upon its satisfaction as to whether or not the licensee was any longer a fit and proper person to hold the licence.

GUMMOW J: Sorry, what page was that?

MR GAGELER: Page 381, point 2.

GUMMOW J: Thank you.

MR GAGELER: This was a case, if your Honours turn back to 331, in which the Tribunal made an ultimate finding of fact that certain licensees "were no longer fit and proper persons to hold" a licence and it based that ultimate finding of fact on a number of specific primary findings of fact, basically about the conduct of Mr Bond, those findings of fact being - - -

GUMMOW J: There was also a statutory requirement for the Tribunal to give reasons, was there not?

MR GAGELER: There was, yes, which makes this an even stronger case, your Honour.

GUMMOW J: Yes.

MR GAGELER: Chief Justice Mason at page 339 at about point 3 said that the ultimate finding of fact was a reviewable decision under the AD(JR) Act and was therefore able to be set aside for error of law. The question that began to be addressed then at page 355 was whether any one of a number of alleged errors in making a primary finding of fact meant that that ultimate finding of fact was infected by error of law and it - - -

GUMMOW J: I have always had difficulty with the structure of this judgment. Why do you jump from 339 to 355?

MR GAGELER: In an attempt to introduce a - - -

GUMMOW J: Apart from helping yourself? What is the structure of the judgment, though?

MR GAGELER: A difficulty and the fundamental difficulty in analysing the judgment - - -

GUMMOW J: Just a minute. It is an AD(JR) case, right?

MR GAGELER: Yes.

GUMMOW J: What is the ground of review under section 5?

MR GAGELER: Error of law was the ground of review that was - - -

GUMMOW J: And no other?

MR GAGELER: That was the one that was primarily put, it was the one with which his Honour dealt. There was complicating - - -

GUMMOW J: An error of law which need not be a jurisdictional error. That was got rid of in the AD(JR) Act, that was its great advance.

MR GAGELER: The error of law that is expressly got rid of is one that needs to be on the face of the record.

GUMMOW J: Yes. There are lots of errors of law that do not go to jurisdiction.

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

GUMMOW J: Undoubtedly, but they attract AD(JR) review. They do not attract 75(v) review.

MR GAGELER: I accept all that, your Honour, and it is really not contrary to anything I am seeking to put to you.

GUMMOW J: No, but it explains the framework of what is going on here.

MR GAGELER: Yes. There are really two issues.

GUMMOW J: It is not talking about jurisdictional error at all. It did not have to.

MR GAGELER: No, what I am seeking to do, your Honour, is take two lines of cases, one dealing with error of law to demonstrate the position there and then, secondly, I do propose to go to the Bellbird Colliery line of cases, which focused more upon jurisdictional error and the point that I am seeking to make at the end of all that is they come to the same position. There is no difference in result if one approaches the question as an error of law from if one approaches it from a question of jurisdictional fact.

The structure of the Bond judgment is complicated by it dealing as much, or perhaps more, with the question of jurisdiction by reference to a decision or conduct under the AD(JR) Act as it did with the particular ground of review which was error of law.

GUMMOW J: That is right. There had been a great controversy about interlocutory decision making, as it were - - -

MR GAGELER: Exactly.

GUMMOW J: - - - and this put an end to it.

MR GAGELER: What is clear, your Honour, is at the top of page 339, his Honour proceeded upon the basis, in relation to the jurisdictional question - - -

GUMMOW J: That is the AD(JR) jurisdictional question, not the ABT jurisdictional question.

MR GAGELER: I am coming to that. The AD(JR) jurisdictional question that the finding or the reaching of the ultimate state of satisfaction as to whether or not the licensees were fit and proper persons to hold their broadcasting licences was a reviewable decision. Now, having got to that point his Honour then proceeded, relevantly from page 355 onwards, to address the question whether that reviewable decision was infected by error in making a finding of primary fact, the findings of primary fact being those set out at page 331.

Now, in dealing with that question, his Honour, your Honours will see, at the bottom of page 355 referred to the line of cases beginning, usefully, with McPhee v Bennett and, as I said, brought together in Azzopardi, to which his Honour does not refer, and proceed to the top of page 356 to make a statement frequently repeated and applied since which, in our submission, is no more than a completely orthodox position of the law as it stood at that time and had been worked through for the 50 years before, and that is adopting the statement of Justice Menzies in 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."

Then his Honour makes the broad statement that one sees immediately under that. There must be some basis for the inference, but if the process by which one gets from that basis to the ultimate result is illogical, then that does not demonstrate error of law.

Now, his Honour then deals, after that, with developments in the English position, noting at the beginning that it was by no means clear whether English law had developed in a different direction, perhaps too early to tell. At the bottom of the page his Honour refers to Mahon v Air New Zealand in a statement of the Privy Council, which your Honours should take note of:

"the decision to make [a] finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning -

so far, entirely consistent with the Australian authority, but then it is added:

and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory".

In that respect the statement from Mahon v Air New Zealand departs from the established Australian authority to which his Honour had already referred and what his Honour said, at the top of page 357, is that:

The approach adopted in these cases has not so far been accepted by this Court.

What was very clear is that in this case his Honour was not accepting that approach.

GUMMOW J: Now, there is an ambiguity in it all, and the ambiguity begins on page 356, about line 10, and it is the opening words, "Thus, at common law".

MR GAGELER: Yes.

GUMMOW J: What is being talked about? The jurisdiction of this Court under 75(v)? The jurisdiction of the State courts? It would certainly include certiorari, which 75(v) does not. There is talk about declarations. There is talk about injunctions.

MR GAGELER: His Honour was referring to Justice Menzies in Ex parte White which was a prerogative writ case in this Court - - -

GUMMOW J: Exactly.

MR GAGELER: - - - not a constitutional writ case, I think. I think it was a case in which certiorari was sought to quash a decision of the District Court.

GUMMOW J: It is a Vietnam case, is it not?

MR GAGELER: Yes, it is section 30, I think, of the Judiciary Act rather than section 75(v).

GUMMOW J: I think so.

MR GAGELER: But his Honour was clearly enough speaking - - -

GUMMOW J: It seems to me it is an ellipsis to talk about "at common law".

MR GAGELER: I do not disagree with your Honour.

GUMMOW J: It is a mansion with many houses.

MR GAGELER: His Honour was in context discussing generally the distinction between error of law and error of fact in saying that - - -

GUMMOW J: The theme of his Honour's judgment is to try and coalesce all of this and that, at the time, seemed a wise thing, but it has broken down and it has broken down because of the Acts of the Parliament which have driven us back to 75(v).

MR GAGELER: Your Honour, his Honour was dealing specifically with the ground of error of law, however it may be raised, and making a general statement about how far that ground goes and it is really that that I want to focus on in that there is no ambiguity.

That brought his Honour ultimately or penultimately to what is said at the bottom of page 358 where there is a reference in the paragraph beginning "The Federal Court has expressed" to Puhlhofer and Broadbridge, and the reference to a body acting perversely.

GUMMOW J: Well, that is no longer the law in England, is it?

MR GAGELER: It may have moved beyond that, your Honour, in England.

GUMMOW J: Yes. In England it just has to be unfair, has it not, now?

MR GAGELER: Your Honour, we have attempted to understand the current English position. We have found it almost impenetrable as the current United States position.

KIRBY J: Well, in the United States - I was in the United States last week and they had never heard of Wednesbury. This is Supreme Court justices, they have never heard of it.

MR GAGELER: That is very interesting your Honour says that because the Americans trace the same principle back to Sharp v Wakefield, a House of Lords decision in the 1890s, strangely, not referred to in Wednesbury but it is exactly the same principle.

GUMMOW J: Do you have a reference for that? Not now.

MR GAGELER: I will give your Honour a reference after that.

McHUGH J: I think it is [1891] AC - it might be [1894].

MR GAGELER: Yes. It is the same source - - -

McHUGH J: It is a liquor case, licensing case.

MR GAGELER: Yes. Your Honour will see a reference to it in Bellbird Collieries. It is the source of similar statement by Sir Frank Kitto in other cases - - -

KIRBY J: I get the impression, partly from what was said in this conference, that the English judges, partly stimulated now by the Human Rights Act, are taking Wednesbury-type ideas much further than we have.

MR GAGELER: Yes.

KIRBY J: And if there is an analysis of this, Jeffrey Jowell might have written something, or there may be something that has been written on this. I would be appreciative to see what the English are doing.

MR GAGELER: We will look again, your Honour. It would have to be something written terribly recently to be of any great utility. We will look again. We have tried and failed to find anything that usefully brings the very current English position together.

KIRBY J: Sir John Laws has written articles I think on a bolder approach to irrational administrative decision making. If one talks in terms of principle, we have the Parliament. The Parliament has provided for the Tribunal. It has provided for the Tribunal to make decisions. One does not normally think that a Tribunal of the Australian Parliament can just make irrational decisions - stand back from all this law - it just does not seem to be what our Parliament would expect of a Tribunal of the Australian Commonwealth. Irrational decisions. It is a horrible thing. It is a terrible thought. Like a perverse finding of fact.

MR GAGELER: Your Honour, the difficulty is that irrationality is very much in the eye of the beholder, and the Parliament has shown, particularly in relation to this Act, that it is much more - - -

KIRBY J: That is another matter. I take that point.

MR GAGELER: It is not really another matter, your Honour, because the Parliament has very much focused on this particular question and has said in various ways, over more than a decade, that as a matter of institutional structure, it would prefer to have a tribunal make these findings, for better or for worse, than to have them reviewed with any particular degree of scrutiny by a court.

KIRBY J: But it does use the word, in 476(2)(b), "decision" - - -

MR GAGELER: I will come to that.

KIRBY J: - - - and if it is not a decision, then it does not attract the exclusion.

MR GAGELER: Yes. Your Honour, that is a particular issue that arises on the appeal. It does not arise on the constitutional writ case, but I will come to that when I come to deal with section 476.

GLEESON CJ: Is not the current English position on reasonableness or unreasonableness tied up with considerations of proportionality?

MR GAGELER: I am sorry, your Honour?

GLEESON CJ: Is not the current English position in relation to unreasonableness tied up with considerations of proportionality?

MR GAGELER: It appears to be, and that is something that has been imported from the European Union, as Justice Dawson demonstrated in, I think, Kartinyeri.

KIRBY J: Well, it is also in the US Supreme Court recently, in the case concerning mental retardation - Virginia v somebody.

MR GAGELER: Yes. The English position, though, appears to have departed from the fundamental point to which jurisprudence in this Court has adhered, that is, that judicial review is concerned with policing legal limits on a decision-maker's power, that is, judicial review is at heart concerned with jurisdictional error. That fundamental point appears to have been departed from in some of the more recent cases in the House of Lords.

GUMMOW J: Mr Selway makes that point in a recent article in the Federal Law Review.

MR GAGELER: Yes. What I wanted to show your Honours at page 359 was his Honour's acceptance of the perversity test in Pulhofer by adding:

In this context, "perversely" signifies acting without any probative evidence.

and his Honour's rejection later down the page of the approach which had been taken in the Federal Court in Pashmforoosh. If your Honours look at the terminology of Pashmforoosh, which of course was a migration case, your Honours might have a view as to what the draftsman was concerned to guard against in coming to draft section 476.

GUMMOW J: That is right, so it could have been within 476(1)(g). Pashmforoosh might make you think that unreasonableness operates there.

MR GAGELER: Pashmforoosh might lead one to think that - what is referred to in section 5(1)(e) is error of law. So what was being said in Pashmforoosh is that Wednesbury-type unreasonableness, in making a finding of fact, could constitute an error of law. That is what his Honour rejected.

GUMMOW J: Pashmforoosh was not the end of the story. It was later cases in the Federal Court which insinuate it back again.

MR GAGELER: That may be so but, if they did that, they did that contrary to the very clear position that Justice Mason - - -

GUMMOW J: I am just trying to get in the mind of the draftsman faced with the terrible brief of drafting 476, that is all.

MR GAGELER: Yes. Of course, 476 is almost of historical interest in this case, your Honour.

GUMMOW J: Sir Anthony may have cut the head of Pashmforoosh but I think it grew another head.

MR GAGELER: If he did, he did not do so in accordance with the jurisprudence of this Court, and that is really my point. What his Honour says in a particularly difficult passage after setting out the quotation from Pashmforoosh with which he disagrees is, in our submission, this. If I can translate it rather than read it - - -

GUMMOW J: Which is this, Mr Gageler?

MR GAGELER: Immediately after Pashmforoosh there is a statement, "This statement is unobjectionable", and over to the top of the page. What his Honour is saying, in our submission, is this, that a finding of ultimate fact may be reviewable on the ground of unreasonableness but a finding of primary fact is not reviewable on the Wednesbury-type ground of unreasonableness but only on the ground that the conclusion of primary fact is one which is not available on the evidence. That brings the position back precisely to the law as it has long been stated in McPhee v Bennett and Australian Gas Light and there is other cases.

GUMMOW J: But his Honour is using the word "decision" in quotes and that is a reference to the AD(JR) Act.

MR GAGELER: That is why it is a complicated and difficult judgment to read but, in our submission, that is what his Honour decided in relation to error of law.

In that respect Justice Brennan agreed with his Honour at page 365, point 5, that is he agreed entirely with the judgment of the Chief Justice. At page 387, point 6, Justices Toohey and Gaudron stated their general agreement with his Honour's observations upon this point and at page 369 Justice Deane at point 2 of the page agreed with the Chief Justice subject to foregoing observations. The foregoing observations, particularly those that occur from the last four lines, page 367, through to and including the reference to Mahon v Air NZ on the next page.

In our submission, what his Honour was not doing in that case was wholeheartedly accepting the English approach in preference for the Australian approach. The qualification his Honour added was very much more limited and what his Honour said, if that passage is fully analysed, is that if an ultimate decision is based on fact A, then there must be evidence before the Tribunal to support fact A. It is not sufficient to say that the ultimate decision could also have been reached by reference to fact B and there is evidence before the Tribunal to support fact B. That is the only qualification that his Honour added and that is a qualification that is entirely consistent, as I will seek to demonstrate, with the notion of reasonableness expressed in Bellbird Collieries and that line of cases and it is to that that I propose to turn.

If your Honours go to Bellbird Collieries [1944] HCA 42; 69 CLR 407, a significant starting point with this case is to recognise that in the result, leaving aside the statement of principle of Sir John Latham, this was an error of law case. One sees that very clearly in the headnote at page 408, the first two holdings.

GUMMOW J: It was a prohibition case, was not it?

MR GAGELER: It was a prohibition case in which - - -

GUMMOW J: Well, it is a jurisdiction error case?

MR GAGELER: Exactly, jurisdictional error, because the decision-maker had erred in law.

GUMMOW J: Because there was an error of law going to jurisdiction, not just an error of law?

MR GAGELER: Sorry, your Honour, I should add that qualification. It was an error of law and it went to jurisdiction. The particular provision with which the Court was concerned one finds at page 427. It is 17(1)(b) and it turned upon a state of satisfaction. It was in that context that Sir John Latham made some general statements to which I will come back.

May I go first to the application of those general statements that your Honours will find at page 432. After one of the general statements, it is said at about point 6:

It is therefore necessary to consider what reg. 17 means when it requires an Industrial Authority, before it alters existing rates of remuneration . . . to be "satisfied that the rates of remuneration . . . anomalous."

His Honour then construes that and ultimately finds at page 434 in the paragraph beginning about point 6:

The Federation therefore simply asked for a new rule.

His Honour found that the opinion which had been formed was not one which could be formed in accordance with the law. Perhaps more crisply, the points made in the decision of Justice Starke at page 436 point 8 your Honours will see the statement, after setting out regulation 17(1)(b):

The Industrial Authority must be satisfied that the rates of remuneration are anomalous. But he must be so satisfied upon a proper construction of that regulation and not upon his own arbitrary, capricious and mistaken opinion of its meaning.

It was very much in that context that what is said to be "arbitrary , capricious and mistaken" in the general statements of principle - - -

GUMMOW J: What does arbitrary - I am sorry. What does "capricious" add to the statement?

MR GAGELER: I do not think anything. Perhaps a more extreme way of saying - - -

GUMMOW J: Are you saying they are all synonymous?

MR GAGELER: Yes.

GLEESON CJ: After lunch, were you proposing to come to what Justice Dixon said in Avon Downs?

MR GAGELER: Absolutely, your Honour, yes.

GLEESON CJ: We will adjourn until 2.15 pm.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.19 PM:

GLEESON CJ: Yes, Mr Gageler.

MR GAGELER: Your Honours, I had moved too quickly from Bond without telling your Honours what I sought to draw from it before going to Bellbird Collieries. What we seek to draw from Bond is three things. One is that in the context of dealing with error of law which after Craig and Yusuf when made by an administrative tribunal is generally to be treated as jurisdictional error, there was a confirmation of the traditional distinction between, on the one hand, mere want of logic, perversity or unreasonableness in making a primary finding of fact is not an error of law and, on the other hand, once the primary facts are found, a making of an ultimate decision that is unreasonable will allow for an inference of error of law, albeit one that is undisclosed on the face of the reasons. That is the first point we seek to draw.

The second point is the clear rejection of the reasoning of the Full Federal Court of Pashmforoosh which had attempted to bring unreasonableness review into findings of primary fact. The third point, that I did not get to but I had foreshadowed in an answer to your Honour the Chief Justice, was by way of illustration in Bond 170 CLR at 360 and following. His Honour the Chief Justice applied that analysis to one of the criticisms that had been made of one of the findings of primary fact in that case, that is the finding that Mr Bond had deliberately given misleading evidence to an earlier enquiry of the Tribunal, and one of the things that was put was that the Tribunal had inexplicably failed to deal with evidence of a corroborating witness, Mr Aspinall, that was centrally relevant to that finding.

KIRBY J: So it is a little bit like this case in that respect?

MR GAGELER: Very much like this case and if your Honour notes at page 364 the way in which his Honour the Chief Justice expressed his conclusion, about point 7:

Despite the failure of the Tribunal to refer to that part of Mr Aspinall's evidence mentioned earlier and the sketchy and disjointed discussion of the issue by the Tribunal, there is not enough to demonstrate an error of law on the part of the Tribunal. It does not emerge that the Tribunal misapprehended the scope of the 1986 inquiry or what was involved in the particular issue it was purporting to decide in 1986. Nor does it appear that there was no probative evidence to support the finding, or that an inference that Mr Bond deliberately misled the 1986 inquiry was not open on the evidence.

GLEESON CJ: Now, just pausing there, does that suggest that if the Tribunal had misapprehended the scope of the 1986 inquiry, a different result would have followed?

MR GAGELER: A different result could have followed, yes. If the Tribunal had misapprehended the question - - -

GLEESON CJ: That would have been an error of law.

MR GAGELER: May have been, yes.

GLEESON CJ: Just give me an example of how the Tribunal - of what kind of misapprehension on the part of the Tribunal about the scope of the 1986 inquiry would have given rise to an error of law.

MR GAGELER: It could only have given rise to an error of law if it demonstrated that the Tribunal was misapprehending the scope of the inquiry it was making, which was under review in this case. So it is difficult to see how that could occur but it is theoretically possible.

KIRBY J: Bond reversed a very strong Full Federal Court, which perhaps all just goes to show that when you get factual findings ultimately leading one decision-maker to believe that it has seeped from the grassroots up to the final decision, some people will say, "Yes it has, and it's infected the final decision" and others will say, "No it hasn't". Really, you have to admit that the formula suggested by Chief Justice Mason is very open-ended. I am not blaming his Honour because it may be that you cannot do anything better.

MR GAGELER: What I sought to show is that the formula suggested by Chief Justice Mason was the formula that had been worked out in a series of cases. Your Honour knows only too well from Azzopardi it is a clear formula. It might give rise to some difficulties of application in some cases but much less than arises on the alternative; Pashmforoosh formulation. Your Honour, as to the strength of the Federal Court, that only adds to the weight of the authority in Bond.

KIRBY J: When you reverse a very strong Court it means that you have only done it because it is a very clear case. You do not interfere lightly with a strong courts. Not the way I approach things.

MR GAGELER: Yes. Before going back to the Bellbird line of cases, can I make a point about the relationship between an unreasonable finding of primary fact and an error of law? The relationship was explored by Lord Radcliffe in Edwards v Bairstow [1955] UKHL 3; [1956] AC 14.

GUMMOW J: That is a tax case, is it not?

MR GAGELER: Tax case, yes, as was Avon Downs, your Honour, a tax case which got before the court on a case stated limited to a question of law.

GUMMOW J: Yes.

MR GAGELER: I think your Honour may have referred to this in Vetter v Lake Macquarie. It appears at page 36. What Lord Radcliffe here said, and I will be seeking to draw a parallel between what his Lordship said here and what Sir Owen Dixon said in Avon Downs, at about point 2 is this:

I do not think that inferences drawn from other facts are incapable of being themselves findings of fact, although there is value in the distinction between primary facts and inferences drawn from them. When the case comes before the court it is its duty to examine the determination, having regard to its knowledge of the relevant law. If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it much - - -

KIRBY J: It is a little bit like the ultimate category in House v The King, is it not?

MR GAGELER: Yes.

KIRBY J: That you cannot put your finger on exactly what the error in the exercise of the discretion is, but you just have to accept that some exercise of discretion is so wrong that - - -

MR GAGELER: Absolutely, and what you are looking for to intervene is an error of law, an error of principle or an error of law, and it may well be that a totally bizarre, unreasonable result will allow you to infer an error of law. That is the point. A similar justification can be found, if your Honours would note without going to it, in the decision of Justice Hope in Mahony v Industrial Registrar (1986) 8 NSWLR 1 at pages 2 to 3. His Honour does not refer to Lord Radcliffe, but says very much the same thing.

May I turn to the Bellbird Collieries line of cases and in that context I will come to Avon Downs. Why the Bellbird Collieries line of cases: I refer to the numerous cases that are probably most conveniently collected in the joint judgment in Corporation of the City of Enfield [2000] HCA 5; 199 CLR 135 footnote (57). They start with Bellbird Collieries and I have in part taken your Honours to that. What I seek to establish by going to some but not all of the cases is that none of them support the proposition that want of logic, perversity or unreasonableness - call it what you will - in the context of making a finding of primary fact is itself an error going to jurisdiction. What they do support is the proposition that on the primary facts found, or on primary facts for which there is some evidence if no primary facts have been found, reaching an ultimate conclusion of fact that is so unreasonable that no reasonable person could have reached it is a jurisdictional error either in its own right or through inferred error of law. In so supporting that proposition, that line of cases, in our submission, accords entirely with the separate line of cases culminating in Bond.

If your Honours would turn back to Bellbird Collieries [1944] HCA 42; 69 CLR 407 which I had taken your Honours to just before lunch, what we seek to draw from the report is this, first that the jurisdictional error actually found in Bellbird Collieries was an error of law. The industrial authority was found to have proceeded on a construction of the ordinary English word "anomalous" that was said not to be open. That was the error. Secondly, the statements of principle which appear at pages 430 and 432, frequently quoted and to which I will come in a moment, were addressed to that context. They were not addressed to the making of findings of primary fact. They were concerned with whether the industrial authority could form the opinion of ultimate fact while adopting a correct interpretation of the law.

Thirdly, the statements of principle were concerned to ask whether the opinion actually formed could be formed by a reasonable person who properly understood the law. They were not concerned to ask whether the way in which the industrial authority went about forming its opinion was reasonable. Your Honours can see that by looking at the first statement of principle, page 430 at about point 7, and I should point out Justice Gummow on the opposite page, 431 about point 3, there is a reference to Sharp v Wakefield. Page 430, about point 7:

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 -

I emphasise the word "can" -

be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist.

And then, importantly, as if by way of explanation of the previous sentence:

A person acting under a statutory power cannot confer power upon himself by misconstruing the statute which is the source of his power.

Then, similarly, the second statement of principle at page 432, again often quoted, at point 5:

If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the 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.

Avon Downs [1949] HCA 26; 78 CLR 353 is the second in the string of cases. The relevant passage appears at page 360. This was an appeal under the Income Tax Assessment Act against a decision that in part turned on the formation of an opinion on the part of the Commissioner of Taxation and it is in that context that his Honour said at page 360 at the top of the page:

But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.

Again, that accords precisely with the information of the distinction between error of law and error of fact given in a slightly different, but not vastly different, context by Lord Radcliffe. What it is pointing out here is to find a jurisdictional error what one is seeking to find in the material explicitly or inferentially is an error of law. Unreasonableness may point to an error of law, but nothing more.

Brian Hatch Timber - I do not ask your Honours to turn to this - [1972] HCA 73; 128 CLR 28, 57 to 58, another one in the string of cases, was a straight - - -

GUMMOW J: Where does this notion of error of law come from, other than from cases construing statutes conferring rights of appeal, in the prerogative writ area?

MR GAGELER: Well, Yusuf - - -

GUMMOW J: No, just forget about recent times. Where does it come from before that?

MR GAGELER: The error of law notion?

GUMMOW J: Yes. They talked about jurisdiction.

MR GAGELER: Yes, and they talked about jurisdiction as conferred by law and they talked about a decision-maker needing to address the question that the law required.

GUMMOW J: That jurisdiction may be conferred purely in terms of a factual matter.

MR GAGELER: Yes.

GUMMOW J: Now, you somehow seem to get yourself airborne by some notions of error of law and error of fact, when that was the question.

MR GAGELER: No, your Honour. I fully accept that it all turns on the terms in which jurisdiction was conferred, if jurisdiction is conferred.

GUMMOW J: Why is it then helpful to place upon it then this other distinction?

MR GAGELER: I am not sure what other distinction your Honour refers to.

GUMMOW J: Error of law and error of fact. The question is was there jurisdictional error.

MR GAGELER: Yes. The question is what is a jurisdictional error.

GUMMOW J: Now, the jurisdiction may have been conferred by some criterion which presented a word, as it was in Hetton, whatever the word was in Hetton.

MR GAGELER: Your Honour, I accept that, but jurisdictional - - -

GUMMOW J: And you can easily then say they were construing that statutory word. It may also have been conferred by reference to some finding as to a state of affairs.

MR GAGELER: Your Honour, the jurisdiction in Bellbird Collieries was conferred by reference to the decision-makers' state of satisfaction as to whether or not that word was fulfilled, the word "anomalous".

GUMMOW J: That is right, "anomalous".

MR GAGELER: Now, what was held in that case was that the Industrial Tribunal must have misconstrued that word, asked itself the wrong question, could not have come to the result to which it came if it had properly understood that word.

GUMMOW J: I understand that.

MR GAGELER: That gave rise to the jurisdictional error.

GUMMOW J: That is right, but you do not need to talk about error of law and error of fact. It is just a jurisdictional error. You then seem to use the distinction between error of law and error of fact to somehow debase the case here.

MR GAGELER: I am not debasing the case, your Honour. All I am seeking to show is that there is no case in this Court that suggests that a want of logic in making a primary finding of fact - - -

GUMMOW J: Now, you are using this word "primary" finding. Where does that come from?

MR GAGELER: It comes from the very long line of cases that have considered what is involved in an error of law.

GUMMOW J: Exactly.

MR GAGELER: Yes, and all I am seeking to do - and your Honour may not accept it, I fully appreciate that - is to show that one does not arrive at a different result in respect of jurisdictional error if one takes the error of law line of cases from what one gets to if one takes the jurisdictional fact line of cases and one comes to the same point.

GUMMOW J: I think it is just an irrelevant pilgrimage. That is all I am putting to you.

MR GAGELER: I will not take very much more time about it but I am coming to a point that I hope brings it together.

KIRBY J: I was going to say that in my journey on this pilgrimage through these cases I am slowly but surely coming to the conclusion that judges have used an awful lot of language over an awful lot of time and have not really clarified the sharp distinction between fact and law. Ultimately, if the factual decision is so offensive to logic, commonsense, the evidence in the case, it will show that the decision-maker has taken his or her eye off the ball and has not really made the decision. You can therefore not say that there is a complete dichotomy between fact and law because ultimately the facts will lead to the legal decision.

MR GAGELER: I have not sought to say that there is a complete dichotomy between fact and law. What I have sought to say is that getting from the evidence to a primary finding of fact which is at least one step removed from whether or not the statutory criterion is fulfilled, one does not find an error of law, one does not find a jurisdictional error by reason simply of a want of logic.

KIRBY J: By reason simply of a want of logic, yes.

MR GAGELER: Yes, which is all this case involves: want of logic, unreasonableness, perversity. It does not matter how you put it.

KIRBY J: Except that one could say that because this decision-maker did not refer to one or two points of corroboration that that tended to indicate that she did not really make a decision as is required. I can see the force of your argument that basically I think she did not believe the applicant.

MR GAGELER: That is all it comes down to, your Honour. She has expressed herself very badly in explaining why.

GLEESON CJ: She dealt so dismissively with the evidence relied on as corroboration that it has given occasion to argue that she never really considered it properly at all, but a possible explanation of what she did was that she was trying to find a polite way of saying she did not believe him.

MR GAGELER: She found a very direct and somewhat impolite way of saying she did not believe the applicant.

GLEESON CJ: That is right.

MR GAGELER: Then when she came to the corroborating witness - and she was referring in that paragraph, I think, only to one witness, Mr Kadigamuwa, who she referred to earlier as "the witness" - she was seeking to dismiss his evidence without having to - - -

GLEESON CJ: She seems to have said, "I am so convinced that the applicant is telling lies that I don't need to take any further trouble about the detail of this corroborating evidence".

MR GAGELER: Literally construed, that would appear to be what she was saying. I had almost given a modern answer to your Honour's question about why are we bothered with error of law at all. The modern answer - I will simply give your Honour the reference to it - is in the joint judgment in Yusuf [2001] HCA 30; 206 CLR 323 at pages 348 to 349 where judicial review, particularly in the context of the Migration Act, was linked back to what was said to be the duty and jurisdiction of the Court by Justice Brennan in Attorney-General v Quin.

GUMMOW J: Yes.

CALLINAN J: What paragraphs?

MR GAGELER: Particularly paragraphs 73 through to 75. The point being made in those paragraphs is that all of the grounds of judicial review - perhaps I am saying that too loosely. If your Honours look at paragraph 74, dealing particularly with irrelevant considerations and relevant considerations, it is said:

What is important, however, is that the grounds . . . are concerned essentially with whether the decision-maker has properly applied the law.

I will not take your Honours to Buck v Bavone. It is quoted in Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 275 to 276. Again, it is concerned with ultimate findings of fact, not concerned with the level of getting from the evidence to a primary finding or rejection of fact and it refers to an opinion that can reasonably be formed. It is not addressed to the manner in which the particular opinion is formed. Now, I have not gone to every case in the string but, your Honours, they are variations on a theme. There is nothing that gets one to the point where want of logic in getting from the evidence to a finding or refusal to find a fact constitutes a jurisdictional errors.

GLEESON CJ: That word "logic" cannot be being used strictly in this context, can it?

MR GAGELER: Logic is often overused, your Honour, logic only has true meaning in a closed system, that is true.

GLEESON CJ: Yes.

MR GAGELER: Perversity may be a more appropriate word, unreasonableness.

GLEESON CJ: Unreasonableness.

MR GAGELER: Faulty reasoning may be another way of putting it. In some cases it could get to the point of logic. Perhaps there would be an error of law.

GLEESON CJ: Strictly, I would have thought that to say that something is illogical means to say that there is a fallacy in the process by which certain premises are said to lead to a conclusion - - -

MR GAGELER: Exactly.

GLEESON CJ: - - - and those forms of fallacy are quite strictly categorised. You can say there is the fallacy of the undistributed middle term or whatever the case may be.

MR GAGELER: Yes, that is true.

GUMMOW J: But that assumes that systems of logic which we apply which go back to Aristotle are the only relevant systems of logic in any philosophical system.

MR GAGELER: Yes. I - - -

GUMMOW J: Lawyers assume that but that may not be right.

MR GAGELER: Yes. I would accept that there would be an error of logic in the present case if, and I think this is one of the ways in which it is put, the Tribunal, properly interpreted, said "I disbelieve witness A, therefore I disbelieve witness B". That would be an error of logic, that one does not follow from the other.

KIRBY J: Is the complaint of the applicant that that is what happened, that they disbelieved the applicant and - - -

MR GAGELER: As I said, that is one of the ways in which the case is put, pure want of logic, and I accept that that would be properly described as want of logic - Melbourne Stevedoring.

The case in 88 CLR is a constitutional writ case and is a jurisdictional error case, 88 CLR page 100. The particular statutory provision is set out in the headnote, page 100, section 23. The jurisdictional fact was a particular state of satisfaction on the part of the Board. Your Honours will see that, section 23(1), relevantly paragraph (a), the board had to be satisfied of a particular state of affairs. It was a case in which it appears that the Board had embarked upon a fact-finding process but which had not, I think, at that stage come to an end. The question was whether jurisdictional error was apparent. The relevant discussion appears at the bottom of page 119, over to the top of the next page. In the second sentence in the paragraph beginning at the bottom of page 119, it is said:

But the chief point of difficulty in the case lies in the distinction between on the one hand a mere insufficiency of evidence or other material to support a conclusion of fact when the function of finding the fact has been committed to the tribunal and on the other hand the absence of any foundation in fact for the fulfilment of the conditions upon which in point of law the existence of the power depends. It is not enough if the board or the delegate of the board, properly interpreting pars (a) and (b) of s. 23(1) and applying the correct test, nevertheless satisfies itself or himself on inadequate material that facts exist which in truth would fulfil the conditions which one or other or both of those paragraphs prescribe. The inadequacy of the material is not in itself a ground for prohibition.

Translated, is not in itself a jurisdictional error -

But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.

Their Honours go on in the next paragraph to say it is really a no evidence case and on the next page to infer error of law.

That analysis in the context of jurisdictional fact, constitutional writ, accords entirely, in our respectful submission, with the error of fact, error of law line of cases. I should say your Honour the Chief Justice mentioned the Jam Company Case [1953] HCA 52; 88 CLR 23 at 37. That sits comfortably with Avon Downs and the cases as we have sought to explain them, in our submission.

If I can move then to the precise context of this Act to ask whether there is anything in section 430, the duty to give reasons, that would make jurisdiction under the Migration Act turn on rationality or reasonableness in making findings of primary fact. I mention that because in your Honour Justice Gummow's judgment in Eshetu 197 CLR 611 at 656 your Honour mentioned section 430 as a possible reason for taking a different view of the Migration Act.

If one turns to section 430, what one finds is a duty to give reasons that supports the traditional distinctions to which I have referred. What the Tribunal has to do is give reasons for its decision, decision there meaning the ultimate decision, here relevantly under section 65, that it is reaching its state of satisfaction. It has to then set out the findings of any material questions of fact. I have referred to those as primary facts. It then has to simply give references to the evidence or other material upon which the findings are based.

What it is not obliged to do is give reasons for making the findings on material questions of fact. It is not obliged to give reasons for getting from the evidence to the material findings of fact and that is a point which your Honour Justice McHugh made in an almost unpronounceable case, Ex parte Durairajasingham 74 ALJR 405 at paragraphs [64] and [65]. Your Honour there made the point that in particular the Tribunal is not obliged to give reasons for rejecting evidence and your Honour's judgment in that case has been followed in almost countless decisions of the Federal Court since.

GLEESON CJ: Mr Gageler, could I just go back to the facts for a moment, pages 315 and 316 of volume 2 of the appeal book.

MR GAGELER: Yes.

GLEESON CJ: The paragraph to which Mr Walker drew our attention at line 45 deals only with one witness.

MR GAGELER: Yes, that is described as the applicant's witness and at page - - -

GLEESON CJ: It is expressed in the singular.

MR GAGELER: Yes, and at page 304, your Honour will see that the person is there identified, line 50, as "The applicant's witness".

GLEESON CJ: Then she goes on in the next two paragraphs to deal with the other two corroborating witnesses and gives her reasons about those and - I was about to say I do not understand what she says in those two paragraphs is the subject of the same criticism but I may be wrong about that.

MR GAGELER: I think your Honour is right about that.

GLEESON CJ: Concentrating on the paragraph in which she deals with the applicant's witness, that was the military person who got him out of confinement, you really do not have to perform very elaborate surgery on that paragraph to read it as meaning, "In the light of what I have said about my views as the applicant's lack of credibility and his having misled the Tribunal, it will be obvious that I have disbelieved that witness."

MR GAGELER: Yes. That involves reading the words "In the light of" as meaning "against the background of" rather than "because of", yes. Mr Walker reads "In the light of " as "because of that I therefore - because I disbelieve the applicant, I go on to disbelieve the witness" and that involves a particular construction of the words "In the light of". Certainly, if it is simply "against the background of" then it is cryptically expressed, very poorly expressed, but does display error of logic.

GLEESON CJ: It would be unfortunate if a great body or a great edifice of administrative law is erected on the foundation of a clumsily worded finding on credit.

MR GAGELER: Your Honour has seen our written submissions. Ultimately, we do submit that read in the way that Wu Shan Liang suggested decision - the reason for decision of the decision-maker ought be read - one does not find in that paragraph the error of logic that is claimed.

If I can point out that the earlier page, page 314, there is an extraordinary difficult paragraph that begins at line 31, "In light of", a number of dot points and then it goes on, "And finally, because the Tribunal" to reach a conclusion does suggest, albeit slightly, that the Tribunal is using the words "In light of" differently from "because".

GLEESON CJ: It is a phrase that she keeps using over and over. She uses it again in the next paragraph.

MR GAGELER: If it is read simply as "against the background of", then the error is not there.

GLEESON CJ: If you read it as meaning, "It will be obvious from what I have already said that I do not believe this witness."

MR GAGELER: Yes. Your Honours, could I deal then finally with - in the context of the appeal only - with section 476 to which some attention has already been paid.

Section 476(1)(e) is relied upon in the appeal, that is, error of law. Not only is the notion of error of law governed by Bond but section 476(1)(e) is not concerned simply with any error of law, it has to be an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. In the recent case of Rajamanikkam, (2002) HCA 32 at 50, Your Honour Justice McHugh together with Justice Gaudron said that those words are not apt to include the making of factual findings and we respectfully adopt that; now reported[2002] HCA 32; , 190 ALR 402.

Then there is a question as to the scope and application of section 476(2)(b). In our submission, the effect of section 476(2)(b) is to carve out of section 476(1) any scope for review of a state of satisfaction on the ground that that state of satisfaction could not have been reasonably reached. That is, in our submission, what was held in Eshetu [1999] HCA 12; 197 CLR 61 at paragraph 47 by your Honour the Chief Justice and Justice McHugh. Your Honour Justice Gummow agreed with that conclusion at paragraph 106 and again at 152 and Justice Hayne also agreed at paragraph 158.

In our submission, it is not appropriate to read section 476(2)(b) as limited to an exercise of discretionary power for three reasons. One is that it is not so expressed, and your Honours might note the difference in language between 476(2)(b), referring to an exercise of power, and 476(3)(b), (c) and (f), which are all directed to discretionary power. Your Honours might also note that the jurisdiction of the Tribunal as conferred by section 415 is a jurisdiction to "exercise all the powers and discretions" that are referred to by the Act, the relevant power being the power under section 65.

Finally, your Honours, clearly enough the purpose of section 476(2)(b) was to make clear that the Parliament did not wish a review of the kind that occurred in Pashmforoosh to continue and a review of the kind referred to in Pashmforoosh in the passage quoted in Bond was review of a decision of primary fact on the ground - and this is the language that is actually in Pashmforoosh - that it involved an exercise of power so unreasonable that no reasonable person could have so exercised it. So this is the Pashmforoosh paragraph. If your Honours please.

GLEESON CJ: Thank you, Mr Gageler. Yes, Mr Walker.

MR WALKER: Your Honours, may I first address the questions of how one should read the critical passages in the Tribunal's reasons. The passage already gone to in-chief at 315 of volume 2 of the application book distinguishes in its own language between the applicant lacking credibility on the one hand and giving no weight to the evidence of someone called "the applicants witness" or not being satisfied with that corroborating evidence. Different language. One should expect perhaps different concept. It would make sense that it was different concept, not least because there is no reason to accord to this Tribunal some shyness or reticence about saying that she did not believe material placed before her.

The very use of the expression "the applicants witness" is one which makes plain that there was sufficient identification, as the word "corroborating" would indicate in any event, by the Tribunal of the fact that this was material that needed to be weighed along with the applicant's evidence that there was a refusal to do that very thing. In our submission that paragraph cannot be read with the fairness that one should approach non-legal Tribunal's reasons as saying in some polite fashion - politeness entering into the last part of the paragraph where it was absent in the first part of the paragraph - that she did not believe that witness.

The same thing appears even more strongly in relation to the dealing - if it could be called that - with the other matters, which we have addressed in our written submissions, in the succeeding paragraphs going over the top of page 316 as to the dentist and the doctor. There is nothing in the paragraph at the foot of page 315 about the dentist suggesting anything in relation to what I will call "truthfulness", credibility in the sense of an honest account. There is rather some, in our submission, to adopt the language in the courts below, inept suggestion that the dentist could not detect what the dentist reported. Your Honours will already have noticed that there is other error, relatively immaterial though contributing to the scheme, in the reference at line 50 to "suffering from post traumatic stress disorder". In fact, as the record shows - in the same book, 290, line 30 - that was a question mark which was raised by the dentist rather than some kind of diagnosis.

At the foot of that page there is a reference to an ambiguous statement by the dentist. Why would the Tribunal be concerned to spot ambiguity if this was in fact simply a polite way of saying the statement is not believed? In our submission, one can safely dispel the proposition that these were simply roundabout ways by an otherwise plain spoken Tribunal of expressing disbelief of the dentist. In fact of course there was no ambiguity in the statement at all. The Tribunal seems to be expecting that a dentist looking at the dental and other physical aftermath of some event falls to be criticised as giving ambiguous material because the dentist was not present at the event so as to be able to give a statement, I quote: "About how any injuries to the applicant were sustained". That is in the nature of an absurdity.

The last one is on page 316 where one has the doctor in Melbourne being quoted. The doctor is described by the Tribunal as, "relying on the applicant's assertions". It is said by the Tribunal that therefore the Tribunal cannot give weight to the doctor's report. That would be a most curious and roundabout way for this Tribunal to say that the doctor was being rejected as to credibility in the sense of giving honest evidence, bearing in mind that the very next line of the record the plain-spoken Tribunal again says that the applicant is not credible. So one can, from within the ordinary English and charitable reading of the Tribunal's own reasons, discard the notion that this is in fact an elliptical, inept but nonetheless genuine disbelief of these witnesses.

GLEESON CJ: I do not read this the same, that she disbelieved Dr K. I would read this as saying that Dr K was simply making a report based on the history he had been given by the applicant and she thought that the applicant was a liar. If you look at page 316, line 29, it looks as though the decisive consideration in her mind was what she regarded as, "the overall implausibility of the applicant's claim to have been imputed with an LTTE profile." She pointed that out at the hearing and gave people an opportunity to respond, and was not satisfied with their responses. But that was the decisive aspects of the facts as far as she was concerned, was it not?

MR WALKER: Yes, your Honour, and it was something against which was posed the applicant's story because if the applicant's story be accepted then here was a particular case running contrary to what might have been the general implication for example of the DFAT cable.

GLEESON CJ: She seems to have thought that the applicant's story was inherently incredible.

MR WALKER: Yes, but that must be arising from some of the material. I have referred to one of the more obvious ones, the DFAT cable, to which she gave considerable weight, which we address in our written submission. That is, it is not in the nature of things something which could appear either implausible or plausible. You would need to have information about a country and a society and a time and politics in order to count something like that plausible or not. The very reference to "being imputed with an LTTE profile" is something which is packed full with actual concrete references. You would need to know something about it before you could say anything, without any prior knowledge, about the inherent implausibility of it. It would an absurdity to posit any inherent plausibility or implausibility without knowing something.

Now, in that very same paragraph, your Honours will have seen that the reference in line 32 is to:

the significant adverse findings on credibility in relation to the applicant -

nothing about other witnesses. At line 20 on the same page, it is:

concerns with his credibility -

the applicant's credibility. It is for these reasons that without straining and certainly without any over-nice reading of this set of reasons one can safely reject the notion that this is simply an artless way of saying, "I have looked at and considered all the witnesses and they do not persuade me that they are narrating anything accurate". Take the corroborative medical and dental material, of course that could be accepted as to their observations and as to their opinions as to the events with which it might be consistent without my client succeeding, that is, in the familiar case, it may not have been, for example, a policeman who strikes someone who claims to have been beaten by a policeman and upon whom bruises are detected by a doctor. The bruises might have been come to some other way, but that does not make the doctor's evidence evidence that can or should be discarded in limine without any consideration to it at all.

It is for those reasons that the way in which Dr K is referred to at the top of page 316 can be seen first not to be a credibility finding against him - there is nothing said casting the slightest doubt on his diagnosis of and opinions about those matters which might cause such a hernia in such a young person - rather, absurdly, in our submission, it is said that because the doctor can have no more than the history of events which occurred outside the doctor's surgery in another country at another time, therefore, the credibility of the applicant determines the question whether this corroborative evidence put forward in order to be able to assess the credibility of the applicant is to be considered at all.

If one was to talk, therefore, about questions of logic, which it must be conceded, in our submission, the respondent accepts as a relevant though not decisive aspect of the legal adequacy of administrative decision making, here we have something in the nature of one of those spurious syllogisms where the major premise assumes the conclusion, where the major premise seems to be some rolled-up exercise along the lines of where a person whose evidence is being tested by reference to corroborative evidence is disbelieved, then corroborating witnesses shall be given no weight. Minor premise: the three here are such corroborative witnesses. Conclusion: therefore, their evidence can be given no weight. It has the appearance of a syllogism, but it is totally misleading, completely spurious and one does not need to be an Aristotelian scholar or a philosopher to see the offensiveness to commonsense and fair reasoning which is engaged in it.

Your Honours, whether one uses the word "logic" or not, the word "irrational", as I said in-chief in answer to an observation by your Honour Justice Gummow, is found in the authorities and, in our submission, is found in a place which is of high authority for our purposes. I refer, of course, to Chief Justice Latham in Hetton Bellbird where the last line of the famous passage includes "arbitrary, capricious, irrational or not" in good faith.

My learned friend said in another context that arbitrary and capricious do not really add anything to the word "mistaken" and vice versa. That, with great respect, is not right. They may overlap, but they each have different denotations. In our submission, what is clear is that the word "irrational", uttered by Sir John Latham, was neither new nor an extension nor does it represent some incorrect or over-culturally specific resort to a particular system of thought.

It can be traced simply in the case law which is before this Court and in the references discussed in the authorities before this Court, something like this backwards. From that reference which is found at 69 CLR 431 one can go to Metropolitan Gas 47 CLR 632 in this Court. One can go there, and this is all by express citation, to Sharp v Wakefield [1891] AC 179 - the page references are the specific ones - where one has a 16^th century case, Rooke's Case 5 Co Rep, which is reprinted at [1572] EngR 282; 77 ER 210 and the phrase which is there reproduced as part of the reasoning towards Sir John Latham's summary which includes the word "irrational" is the requirement that decision making be according to the rules of reason and law, or reason and justice, and it is that reference to reason which justifies the modern use of the expression, "either irrational or unreasonable" as the relevant test, nothing new, in our submission, at all.

One has references to inadequacy of material in Australian Stevedoring 88 CLR 120 which your Honours have seen. "Unreasonable" itself is the very word used by Sir Owen Dixon in Avon Downs 78 CLR 360 and familiar concepts of irrelevance and inadmissible grounds, together with the epithet "fanciful" used in the Australasian Scale Company Case 53 CLR 555. These are words, in our submission, which describe a defect in the way in which a decision is reached and does not merely describe the bland or blank nature of the decision itself. That is a yes or a no, a refuse or grant. It entirely gels, to adopt a metaphor my learned friend has used, with the notion of the red hair as a ground of a decision in the allied but different zone of attacking discretionary judgments.

It is for those reasons that, in our submission, your Honour Justice Gummow's reference in summary in paragraph 145 in Eshetu to the importance of examining the existence of probative material or logical grounds is one which, with respect, is entirely justified on the authorities.

GUMMOW J: Wait a minute. That was a tentative suggestion. Mr Gageler says it is necessary to distinguish between primary and ultimate fact finding. This is at the primary level, he says.

MR WALKER: If "primary" means everything before the formulation required by the statute, then of course it is primary because the formulation required by the statute is "entitled to a protection visa by reason of satisfaction of criteria". On that version, even each criterion would be a primary or at least not a final fact but if one took the statutory - - -

GUMMOW J: No, satisfied that the applicant is a person to whom there are protection obligations.

MR WALKER: Yes. So that assuming that the criteria are not primary in themselves, then on that view which, in our submission, is unnecessary, it is imposing a structure of thought that is not required - I am going to come to Bond in a moment - it would be, by the nomenclature my friend adopts, primary to ask the question: was this man taken into custody, was this man tortured, were his teeth all removed, et cetera, et cetera? They are primary in the sense that they are questions that need to be asked and answered because of the way in which the applicant's claim was presented - I do not mean in an adversarial way; I mean was made known to the decision-maker - and were the putative events of history to which the evidence went.

My learned friend cannot, with respect, point to anything and has not pointed to anything in the authorities which uses this nomenclature of "primary facts" when one comes to the investigation of jurisdictional error, that is the non-existence of a jurisdictional fact, as species which may not or need not be looked at in order to investigate whether a jurisdictional fact has been made out or not. The reason for that is clear from principle, and it comes down to this. A jurisdictional fact, as that piece of nomenclature makes clear, very often is a fact and indeed in this case is a fact. It simply happens to be a fact of mentation rather than a fact of history or a fact of something physical. The fact is whether there was a state of satisfaction.

Whether that fact exists has then got engrafted on it, according to the case law and principles which I need not repeat from my address in-chief, the question whether or not that which is professed to be a state of satisfaction answers the statutory description by reason of defects. Those defects include not only misunderstanding the meaning of English words, not only misunderstanding legal tests required by statutes, but they also include what is called irrationality, bad faith, arbitrariness or caprice.

McHUGH J: But irrationality about what; bad faith about what?

MR WALKER: About the process in order to reach the answer in this case yes or no. Red hair is the classic example.

McHUGH J: It depends on - - -

MR WALKER: That would be a primary fact. He has red hair.

McHUGH J: It depends on the issue. Supposing in a criminal case heard by a magistrate the magistrate said "I convict the accused" and in his reasons he said, "I reject the evidence of one of the accused's alibi witnesses because he had red hair". That might be a perverse finding but it would not be jurisdictional error, would it?

MR WALKER: It does not amount to jurisdictional error. That is not a case that involves jurisdictional fact.

McHUGH J: No, but the decision is not bad for jurisdictional error. The decision - - -

MR WALKER: No, it would not be jurisdictional error. It would be within jurisdiction.

McHUGH J: Yes.

MR WALKER: It would be wrong, but that is a different question.

McHUGH J: Exactly.

MR WALKER: It is a totally different question. We are distinctly not talking about the power to be wrong within jurisdiction. We are talking about the jurisdictional fact, constituted - - -

McHUGH J: The jurisdictional fact here is satisfaction.

MR WALKER: Yes, your Honour, constituted by the state of satisfaction.

McHUGH J: This Tribunal was not satisfied - had the negative state of mind. It may have got there by a wrong process of reasoning, but how does that make it the jurisdictional fact - - -

MR WALKER: The answer to your Honour's question is as follows. First, more accurately with respect, the Tribunal said it was not satisfied. That is what we start with. Second, all the authorities to which reference has been made, as it happens on both sides, refer to the well-known ways in which a jurisdictional fact which involves a state of satisfaction - see Sir John Latham in Hetton Bellbird, see Justice Gibbs in Buck v Bavone - may be attacked and will be shown not to have existed by reference to matters of process. Failing to take into account relevant considerations, taking into account irrelevant considerations, so-called bad faith, arbitrary, capricious and irrational.

McHUGH J: But as we said in Yusuf, there are matters that have to be taken into account and matters that have not to be taken into account. As we said in Yusuf, basically it is matter for the Tribunal to determine what evidence they take into account.

MR WALKER: But ultimately it is for whichever Tribunal, judicial in nature, is checking the existence of a jurisdictional fact. That is why, obviously, legislation of this kind is now built by reference to jurisdictional facts which are states of satisfaction or opinions because it is the clear law, totally unqualified, subject only to what may arise from privative clause jurisprudence, that the jurisdictional fact, if it be something objective such as, was there a state of war between A and B, or did people cross the border during a particular period, that will be fully examinable on evidence as a fact to be found by a court checking for the existence of the jurisdictional fact. But that inquiry dose not change in kind when Parliament decides to give greater deference to the capacity of the administrative decision-maker.

McHUGH J: It may not but its application does.

MR WALKER: It becomes more difficult for a challenge, your Honour.

McHUGH J: The difference between this case and all the other cases is that no matter which way you approach the problem, you could not rationally come to the decision that a particular fact existed. But if you just looked at this transcript and this evidence in this case, nobody could say that that is an irrational decision. If you were polishing up these reasons, you would stitch this up in no time. In fact, it seems to me that if the Tribunal had used the active voice instead of the passive voice at the critical page when she deals with the corroborating evidence, you would not have a leg stand on. What if she said, "I reject the corroborating evidence"? Would you have a case then?

MR WALKER: There would definitely be a question about whether procedures had been followed in terms of the giving of reasons.

GLEESON CJ: But that is what you do say, is it not?

MR WALKER: Yes.

GLEESON CJ: I thought that the high point of your interpretation of this paragraph is to say that the Tribunal said, "Because I am so convinced that the applicant lacks credibility, I reject the evidence of the man" to whom she is referring.

MR WALKER: Your Honour, I cavil only because of the multiple meanings of the word "reject" may have.

GLEESON CJ: I would just like to question whether, as a process of reasoning, that is necessarily illogical. I can imagine cases in which for example a complainant gives evidence against an accused person and the complainant has a corroborating witness, and nobody lays a glove on the corroborating witness, but the complainant is utterly destroyed in cross-examination.

MR WALKER: Yes.

GLEESON CJ: Why can not a Tribunal of fact then say, "Because the complainant's evidence has been so comprehensively discredited I do not believe the corroborating witness either"?

MR WALKER: Your Honour, cases can well and truly be constructed which would bear that guise, not least because then the only corroboration would be, say, with the untested examination-in-chief of the complainant. At the end of the day there would be no corroboration because of the destruction, say, by cross-examination.

McHUGH J: But it happens frequently where a corroborating witness may corroborate a particular witness' evidence in detail, and then it appears beyond reasonable doubt that the complaining or the primary witness was not even there when the corroborating - - -

MR WALKER: That means it is not corroborating at all, your Honour.

McHUGH J: I know. You do not have to go and say it is not corroborating. You say, "I cannot be satisfied".

MR WALKER: That is precisely the way in which these things would be stitched or fixed up, but one would do it not cynically. One would have a look to see what is the nature of this allegedly corroborative material.

McHUGH J: I was in more than one case at the Bar for workers where there were several workers who would depose to seeing an accident to a particular worker and it would be shown that the accident - - -

MR WALKER: Until the bundy cards were tendered.

McHUGH J: Yes, the accident did not happen there or on that day.

MR WALKER: Your Honour, all that says is that some people who are said to corroborate, in fact, do not. The same thing is true with the destroyed complainant.

McHUGH J: But the tribunal of fact does not have to say, "I hold it is not corroborating evidence". They just simply say, "Well, I don't believe the plaintiff, therefore I just disregard the - - -

MR WALKER: No, it is the "therefore" which is entirely wrong, in our submission. The issue is whether you do believe a plaintiff. That is the issue. That is to be considered - justice would require in a court, at least, that to be considered in light of all the evidence relevant to that. It does not require agonised ratiocination about all the evidence. It may all culminate in a very short sentence or two, but it needs to be considered. This is a tribunal that said she was not going to consider that, but in the course of doing so, by the comments she did make which explicitly accept observations by dentist and doctor, for example, it is clear that she was not rejecting root and branch.

GLEESON CJ: No, but she was rejecting - what was the name of that person?

MR WALKER: The air force officer.

GLEESON CJ: Anyway, Mr X. Let us call him Mr X, the air force officer.

MR WALKER: The air force officer, the military man, yes.

GLEESON CJ: She was saying, and I thought, indeed, that you put it that she was saying, "Because I find that the applicant so thoroughly lacks credibility, I don't believe the air force officer either".

MR WALKER: Your Honour, my primary submission is not that she disbelieved, but "gave no weight to".

GLEESON CJ: Well, cannot be satisfied with.

MR WALKER: Cannot be satisfied with it.

McHUGH J: But, on its face - - -

MR WALKER: The only reason for that, the only reason for that is given as "In light of findings above, the applicant thoroughly lacks credibility".

GLEESON CJ: That is right, but there could be cases, could there not, where the applicant has been so comprehensively destroyed that that leads you to disbelieve the corroborator? What are the names that they give to those people in those legal systems where you have to get a certain number of people to support your oath with their oath?

MR WALKER: Compurgators.

GLEESON CJ: Compurgators. Well, she probably thought the air force officer was a compurgator.

MR WALKER: But it is clear, your Honour, these are hypothetical possibilities. We do not have to speculate in this case. The reasons of this Tribunal show beyond any doubt that the air force officer as compurgator never crossed the Tribunal's mind, was never the subject of any inquiry during this fact-finding process.

Your Honour, with respect, is quite correct. It is easy to imagine cases where the word "concoction" would flash in the Tribunal's mind from a very early stage of the hearing and where things might get worse, the more so-called corroborative witnesses who are called.

McHUGH J: If I had been listening to his evidence, suspicion would have certainly crossed my mind. It sounds a very unlikely story that he goes along, released; that these people release this man in this condition in front of these people and then, when he is asked how he comes to know that the applicant is in Australia, he says he meets a friend of a party who tells him and he has never seen him after he had him released. It really does stretch your credulity.

CALLINAN J: Cannot remember the name of the Buddhist monk. That is at pages 304, 305:

the Monk asked him for assistance because the witness had assisted people to be released in the past.

MR WALKER: There is nothing implausible about asking a monk for assistance in a country where monks have real power, your Honour.

GUMMOW J: And are very numerous.

MR WALKER: And are very numerous and include lots of people who would not otherwise be regarded as lifelong devotees of an aesthetic life. Now, your Honours, some of the comments made by Justice Callinan but all of the comments just made by Justice McHugh are trespassing into the area of merits.

McHUGH J: No, no, no, it is testing your proposition that this judgment is irrational.

MR WALKER: There is nothing, however, your Honour, nothing about the matters that you have - - -

McHUGH J: You might only give it a 4, but it seems to me a long way short of being irrational.

MR WALKER: Your Honour, it is irrational - - -

McHUGH J: I hope the judgments of this Court are not judged by the standard that you are seeking to hold this to.

MR WALKER: I will simply say a different standard is applied, your Honour, but that should be of no comfort to your Honour.

Your Honours, what we know from the reasons of this Tribunal is that nothing of the kind that has just been raised for consideration in fact occurred. We are given the reasons. We do not have to speculate about the way in which the thing proceeded. Nothing of that kind occurred. Rather, the pivot point was that the applicant lacked credibility for reasons which, as developed in our written submission, are, contrary to what Justice McHugh has just said, themselves unrespectable. It is unrespectable simply to start with the proposition when the question is, "Did those in control of a country persecute", to start with the proposition, "They would hardly be expected to persecute". That, with respect, is to load the dice in a way which is entirely inappropriate. But, without getting into the merits, because one should not, the argument we put is that the Tribunal itself has revealed the way in which they went about this question of examining credibility. It can be revealed as one which did not use the assistance of the corroborating witnesses and that is the more graphically demonstrated because the corroborating witnesses, whether their evidence is to be regarded as rejected, not considered, not weighed or artificially quarantined, whatever one says about the ignoring of its effect, it can be seen to have followed upon temporarily but certainly intellectually the impression formed of the applicant himself and that, in our submission, is the absurdity or irrationality - - -

McHUGH J: This seems to lead to the conclusion that any time a tribunal does not refer to some important evidence in the case, then it commits jurisdictional error.

MR WALKER: No, your Honour, but certainly to put this proposition which is unremarkable: if they fail to do so, it will help rather than hinder an irrationality argument. The same thing is true with respect of the so-called mere lack of logic that my learned friend says, "Well, on the authorities, that does not necessarily amount to an error", but it is a good start to an allegation that there is irrationality to show that there is lack of logic. Indeed, one would have thought it is a sine qua non of an irrationality case to show a relevant lack of logic. It may be that there is a lack of probative material and in working out what is probative, one cannot avoid causal reasoning of a kind that is usually called logic, whether properly or not does not matter. In our submission, for those reasons, tentative as it was, the way in which your Honour Justice Gummow put the matter in Eshetu is in the same line, in the same territory as all the other expressions to which counsel on both sides have drawn your Honours' attention and should be accepted as going to jurisdictional error.

McHUGH J: I have no difficulty - - -

GUMMOW J: That is not the problem. The problem is this particular case, I think.

MR WALKER: Yes.

McHUGH J: I have no difficulty with the proposition that from time to time - and I think this is the sort of case that Justice Gummow has in mind - that a finding of an anterior fact may lead irresistibly to a finding that there has not been a true decision as to a jurisdictional fact but this case - - -

MR WALKER: On this point, your Honour, that may be enough for us, on this point. I do not mean for this case, I mean on this point because that is what the respondent strains to contest, that is by the introduction - - -

GUMMOW J: Yes, but what I am trying to put to you is he may be wrong in that. That does not mean you win.

MR WALKER: I know. I am accepting that, with respect.

GUMMOW J: That does not mean you win because of this particular passage here.

MR WALKER: Quite so. I accept that entirely. But unless I can make good my proposition about the way in which this species of error, if I can locate it in this case, leads to jurisdictional error, I need to defeat that argument against us. Now, as developed, it called in aid a dichotomy important in other contexts, quite alien contexts, between fact and law and errors of fact and law. The relevant error is a jurisdictional error and it is, slightly teased out, an error as to the existence of a jurisdictional fact.

In our submission, without a simple repetition of words, the nomenclature for once shows a matter of substance. It is a matter of fact which underlies the question of jurisdiction, however many questions of law there may be concealed in the final conclusion as to it. It is clear from the very jurisprudence about relevant and irrelevant considerations and irrationality and caprice and lack of good faith, that there may be jurisdictional error which has entirely to do with the way in which a fact is found. That is the very - - -

McHUGH J: I am not sure about the way a fact is found. It seems to me that in respect of anterior facts the important question may be the fact that it is found. It is rather like - - -

MR WALKER: It is the no probative material, your Honour.

McHUGH J: That is right.

MR WALKER: Take the case of no material positively to support - - -

McHUGH J: In fact an analogy may be found in the directions about circumstantial evidence that this Court laid down in Shepherd's Case. It may be that a particular fact is so essential to the Crown's case conclusion that it must be proved beyond reasonable doubt. It is indispensable. If you get to a situation where the satisfaction of this decision-maker was based on a finding or an inference of fact which was indispensable to that decision and which was not supported by probative material, then it goes.

MR WALKER: Your Honour, there is a broad analogy between that and what we urge. It is not every case, and it is not every so-called factual finding.

McHUGH J: But it seems to me at the moment your case is much further down the track.

MR WALKER: Your Honour, as a matter of principle as to what is available as a mode of challenge, in our submission, it is clear from the authorities that this is an available mode of challenge, namely that there can be an inquiry into whether - there must be in an appropriate case an inquiry into whether a jurisdictional fact exists. Eshetu, for example, is a demonstration of a case where the challenge failed because the jurisdictional fact did exist. This case raises the question, we submit, on considerably stronger grounds as to whether this has fallen below the standard which is required for factual reasoning.

McHUGH J: That is what it comes down to. It seems to me at the moment anyway that it follows as night follows day that if the satisfaction of the decision-maker is based - and by that I mean it depends entirely or essentially on a particular finding, then it is not supported by - - -

MR WALKER: Probative material or some logical ground we would put, your Honour.

McHUGH J: - - - then it may fail, but to say that the reasoning process is different, is another matter.

MR WALKER: Your Honour, certain reasoning process - the "red hair" one is an example - does not in fact truly answer the description of reasoning process. The false syllogism is another example. They are, in our submission, precisely the kind of error which shows that a wrong question must have been asked or there has been the taking into account of an irrelevant consideration, et cetera, et cetera, and they are all jurisdictional errors because they show the non-existence in truth, meaning in law, of the statutory state of satisfaction or opinion which is required.

McHUGH J: Yes, but in this particular case the Tribunal said - its process of reasoning went like this: "I don't believe the applicant, and because I don't believe the applicant, I am not going to give any weight to the corroborating evidence". Now, it seems to me a long leap from that to say that in some way the negative satisfaction did not exist at all or that the law would say that the Tribunal did not have it.

MR WALKER: But, your Honour, the trial judge in Earthline - copious reasons, disbelieving a certain witness - - -

McHUGH J: Nothing to do with jurisdictional error.

MR WALKER: No, but in terms of the extremity of the conclusion reached about a deficiency in reasoning, it is a strong case. Copious reasons, orthodox disbelieving of a witness, but failing to examine, on that critical issue of credibility, the fit - - -

KIRBY J: He had that great belief in his capacity to tell truth from appearance.

MR WALKER: Maybe this Tribunal does, too - - -

CALLINAN J: But worse than that was that he rejected at least one and, I think, two witnesses who were not even challenged or cross-examined at all. I think that makes it an entirely different case. They were adversary proceedings, for a start.

McHUGH J: And as Justice Gummow pointed out more than once to Mr Gageler, I think it is a mistake to be thinking about these cases between distinctions of error of law and error of fact. I really have some difficulty in seeing what they have to do with this particular problem.

MR WALKER: Our short submission is, it has nothing to do with it. The inquiry is simply jurisdictional error. That will involve in some cases matters of fact - in any sense of that expression - - -

McHUGH J: Well, exactly.

MR WALKER: - - - and, in other cases, will involve matters of law - by any understanding of that expression. In some cases, otherwise a mixture of the two. That may be the more common expression.

CALLINAN J: I think it is all collected in the joint judgment in Vetter, is it not? Most of it is. There is reference to a lot of the authorities, and I think that was referred to by Mr Gageler.

MR WALKER: Yes, but my point is simply that this is simply a jurisdictional error question - - -

CALLINAN J: I understand.

MR WALKER: That is all.

CALLINAN J: Mr Walker, let me just say this to you. One possible construction of the Tribunal's reasons and judgment - the decision - is simply that she found that the applicant was a liar. Not simply that he lacked credibility, but in substance the whole of his story was a lie. Now, if that is so, no corroboration in the world is going to assist that. The well is poisoned beyond redemption, I would have thought. If that is a - - -

MR WALKER: I think first of all against myself I need to point out that I think the expression "misleading the Tribunal" is an explicit finding in favour of what your Honour has put.

CALLINAN J: Is there a reference to "misleading the Tribunal"?

MR WALKER: Yes, to "misleading". I will just have that turned up.

McHUGH J: That is at line 44.

MR WALKER: Line 44 on page 315, "the applicant has misled the Tribunal". I suppose I could waste your Honours' time by pointing out that one could mislead innocently. In context it would appear the more likely conclusion is otherwise in this case. On the other hand, one can be misled by mistaken evidence. It is a frequent occurrence, no doubt. So, yes, your Honour, it is a possibility that that is what happened. It is not clear.

CALLINAN J: You cannot corroborate lies.

MR WALKER: No, I am at an anterior stage in the exercise. Assuming that one would no more accord the magic of perfection or omniscience to an administrative fact finder as one does to a first instance judge, then the issue is: how did she go about this process producing this outcome which involved an assessment of credibility with one possible outcome being the applicant is a liar.

GLEESON CJ: It would be a very dangerous result from your point of view, would it not, to say the real error that she made was in not withholding her conclusion about the credibility of the applicant until after she had considered the evidence of the witness? That would be right into the area of review of the fact-finding process.

MR WALKER: Yes. I have to stick to the narrow proposition that what happened as revealed by the reasons here was a refusal to consider the material before her irrationally because it was material relevant, not rejected in terms of whether what they said was true or not, rejected only in relation to the very effect which she should have been considering. What did it say about the credibility of the applicant? As corroborative evidence, none of it was eyewitness of the actual events. There was the near eyewitness of the release from custody, which of course in itself does not have anything to do with how did he get his injuries, but all of it was corroborative in that usual sense of corroborative evidence, consistent with.

Like a circumstantial evidence case, perhaps the more there is, the more it needs to be fitted with what might otherwise have been a finding of credibility, hence the egregious error in Earthline, the failing to attempt the fit of all the evidence. That was a case where there was frank disbelief of a witness but this Court did not take the view, with respect, that the corroborative evidence in that case could be of no weight and it did not matter it was not touched upon because the judge had found the witnesses were untrustworthy - to the contrary.

CALLINAN J: It is really a Browne v Dunn case as well?

MR WALKER: But, your Honour, Browne v Dunn is obviously not appropriate before an Administrative Tribunal, but if it be relevant, there is no suggestion that any proportion of that kind occurred with the corroborating material in this case. Now, I cannot complain about that because we are not to rake over this as if it were an adversarial trial at law, but it is worth pointing out that in terms of the absurdity or irrationality involved, it is heightened rather than reduced when there are not the ordinary safeguards of a full forensic trial in relation to implied criticism of the credibility of these three witnesses and, in our submission, the irrationality is, as I say, in proceeding to say of people, the only role of whom was to assist in assessing the credibility of the applicant, that they did not assist because the credibility had already been assessed and we are either right or wrong on that being the way in which the Tribunal proceeded.

If the Tribunal proceeded in that way, it flies in the face of the rule of reason, that is, the application of the need for probative material, the consideration of probative material and the use of commonsense or so-called logic in order to justify an outcome, but certainly does not require anything quasi-judicial in terms of elaborate reasons.

I think that concludes what I wanted to say about the first dichotomy or the irrelevant dichotomy, I should say, of error of fact or law. Can I say about use of authorities like Azzopardi that that particularly illustrate the inaptness of that matter. There is no question, for example, in a case of that kind which has to do with a statutory appellate restriction. There is no question, for example, of the lower court not having truly exercised jurisdiction, that is, having strayed outside jurisdiction, or not having made things which are really findings of fact or conclusions of law because of some irrationality. The area of discourse is entirely removed from the present one.

Some use was sought to be made of the passage in Bond 170 CLR 363 to 364 in relation to what was said to be the striking similarity of the Chief Justice's approach to corroboration - Mr Aspinall's so-called corroboration in that case - with what occurred in this case. In fact in that passage - that whole page 363 to 364 - it is clear that the Chief Justice in fact was prepared to proceed on a number of different bases in dealing with that argument and one of them, of course, was that in fact that there was no actual corroboration in what Mr Aspinall was saying properly understood.

In our submission, nothing appears in that passage about the permissibility by reference to the standard of rationality and decision making of proceeding to ignore, that is, to decide not to give any weight to by not weighing something which is said to be potentially corroborative. The Chief Justice expressed criticism of the writing of the reasons in that case but not in such a way as to suggest that no tribunal would ever be able to go wrong by failing to attend to the nature of corroborative evidence. The cases depend upon their own facts, including weighing up of materiality, which is what Sir Anthony did in that passage in Bond.

Finally, your Honours, Yusuf and its use of Craig was called in aid for the proposition that one would need to find something in the nature of an error of law in order for there to be a jurisdictional error. This is the point to which the irrelevant dichotomy was tendered. Now, the reference at [2001] HCA 30; 206 CLR 323, in paragraph 82 in Yusuf is, of course, to the non-exhaustive list in Craig but even that non-exhaustive list includes reference to some circumstances in which the jurisdictional error will be made out by so-called erroneous findings or mistaken conclusions. In our submission, those circumstances, as the other authorities put before your Honours demonstrate, include classically matters of irrationality and arbitrariness. May it please your Honours.

GLEESON CJ: Thank you. We will reserve our decision in this matter.

AT 3.51 PM THE MATTER WAS ADJOURNED