SZBYR & Anor v Minister for Immigration & Citizenship & Anor [2007] HCATrans 83 (28 February 2007)

Last Updated: 6 March 2007

[2007] HCATrans 083

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S3 of 2007

B e t w e e n -

SZBYR

First Appellant

SZBYS

Second Appellant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 28 FEBRUARY 2007, AT 10.21 AM

Copyright in the High Court of Australia

__________________

MR G. O’L. REYNOLDS, SC: May it please the Court, I appear for the appellants with my learned friends, MR C.D. JACKSON and MR M.A. IZZO. (instructed by Kazi & Associates)

MR R.T. BEECH-JONES, SC: May it please the Court, I appear with my learned friend, MR J.A.C. POTTS for the first respondent and, your Honour, we would also seek that the name of the first respondent be amended to refer to the Minister for Immigration and Citizenship. (instructed by Clayton Utz)

GLEESON CJ: You have that order. Now, in relation to the notice of contention, is it convenient to the parties if we hear what they have to say both as to whether the leave should be given and as to the substance of the matter in the course of their submissions and we can deal with the matter when we come to give our reasons?

MR BEECH-JONES: Yes, it is, your Honour.

GLEESON CJ: Thank you. Yes, Mr Reynolds.

MR REYNOLDS: Your Honours, can I begin by giving the Court an outline of the order in which I intend to proceed. The first issue I would like to deal with is to give your Honours some background to this particular case, second of all, I will deal with the argument as to breach of section 424A of the Migration Act and, third of all, I want to look at the impact of that breach of section 424A on the reasoning of the Tribunal. Your Honours will have seen that both of my clients are Indian nationals. They originally sought protection visas. Those visas, if your Honours go to the Migration Act 1958 (Cth), were sought under section 36.

GLEESON CJ: What is the reprint of the Act that it is convenient to us to work from, Mr Reynolds?

MR REYNOLDS: Reprint 8, your Honour, is the one that was suggested. I do not think it will be terribly important if your Honours are working from another reprint.

GLEESON CJ: No, it is just that we always like to have the right copy of the legislation in front of us.

MR REYNOLDS: If your Honours go to section 36(2) of the Act, in particular - - -

KIRBY J: We have a certain familiarity with this subsection.

MR REYNOLDS: If your Honours please. I will simply make the point that protection visas were sought by both of my clients, who are husband and wife, under that particular provision, which takes your Honours back to the Convention which is set out, if your Honours do not know it by heart, at the bottom of page 72 of the appeal book. If your Honours go to the text then of the Convention at the bottom of page 72, the fears of persecution articulate - - -

KIRBY J: Just so that I can whet my appetite, what was your connection with the Convention? It just seems like a domestic.

MR REYNOLDS: Your Honour, I will be coming to that argument in detail in due course, but to anticipate things a little - - -

KIRBY J: Obscure?

MR REYNOLDS: I am sorry, your Honour.

KIRBY J: You were going to say “a little obscure”?

MR REYNOLDS: No. As I say, I will deal with this in detail because I have to, but the gist of it is this, that the two relevant reasons are religious animus, first of all and, secondly, although to a lesser extent what I will call social animus, picking up the words of the Convention, but I will focus on religious animus.

KIRBY J: The social group was the other category, was it?

MR REYNOLDS: Yes, it is. I am paraphrasing the Convention. Basically, the husband, one of my two clients, ran into trouble with the family of his previous wife who he says hated him primarily because he was from a different religious sect to them. He is a Shiah and the other family are orthodox Muslims, so if your Honours are trying to get a grip on this, the analogy I have used is the disputes in Iraq between Shiahs and Sunnis. That is the flavour of it. So he married a woman from a different religious sect. There was a whole lot of animus towards him from his wife’s family because he was from a different religion and from a different social group.

KIRBY J: Not a different religion.

MR REYNOLDS: I am sorry, your Honour, a different sect – your Honour is quite right – within that religion.

KIRBY J: His family were the followers of the Aga Khan, is that correct?

MR REYNOLDS: His were and they are described as Shiah Muslims in the appeal book. The other family are described as Orthodox Muslims, so it is two different sects. Arising out of that hatred a whole lot of things happened. First of all, there is an assault, I think, in about 1997 by members of his former wife, Salima’s family, on the husband, but most importantly, what happens is that there are, according to the husband, a series of false charges which are laid against him by the authorities in India on the complaint of Salima’s family.

The reason that the authorities become involved obviously is at the point of being responsible for laying the charges, so there is the official aspect of the persecution but the reason behind the persecution obviously derives from the attitude of Salima’s family to my clients, in particular, the husband.

Eventually what happens is that the husband and his former wife, Salima, divorce. That is noted in the appeal book at page 75, at line 9. Then in July 2001, Salima commits suicide. That is noted at appeal book 75, line 15. In 2001, according to my clients, further charges are laid. It is not quite clear what they are but they appear to be charges levelled at them as being responsible for Salima’s death. That then, according to them, leads to them being gaoled for 15 days as a result of those charges, and this is dealt with in the appeal book at page 75, lines 22 following. Faced with that situation, as noted in the appeal book at page 79, point 38, both of my two clients flee India.

Now, one comes to the formulation of the fears which my clients had. I will refer to these as first of all the primary claim and second of all what has been as described as the residual claim. The primary claim relates specifically to the 2001 charge which they say was outstanding, that is charging my clients with responsibility for Salima’s death.

My clients say they fear imprisonment as a result of that charge if they return to India. They say that Salima’s family is responsible for that charge and that their motivation was religious animus but also animus derived from a difference in social status. They say that the charges were triggered by the suicide and that, in effect, Salima’s family have the authorities in their pocket and can get my clients charged as they please on these false bases. So that is the primary claim they put as their fear of persecution.

KIRBY J: It says “persecution in India.”

MR REYNOLDS: Yes. So when they go back to India, there is this outstanding charged levelled in 2001 relating to Salima’s death and they fear that they are going to be imprisoned as a result of that, and they say that the ultimate reason for all of that is this animus that is borne towards them by Salima’s family which is primarily based on religion and difference in social status.

Now, the second claim we would call the residual claim. What this is is a fear as to the future of imprisonment in India on false charges on the complaint of Salima’s family. The idea here is that my clients point to the false charges which were levelled against particularly the husband in the past which were the result of religious animus and what I will call, for shorthand, social animus.

They say when you look at these four charges, these false charges, that occurred in the past for these reasons, religious and social, that there is a likelihood that when they go back to India that they will be charged by the authorities, in effect on the complaint of Salima’s family, and that the reason for all of this is religious and social hatred. So that was the basis of the - - -

KIRBY J: We have to get this very clear. The social hatred that you refer to is not a Convention ground.

MR REYNOLDS: Your Honour is quite correct. I am paraphrasing it because the words of the Convention are “membership of a particular social group” and your Honour is quite right that this aspect of the case is not well articulated because, as I stand here now, I cannot define with exactitude what the membership of that other particular social group is, but if your Honours, if I may say so, concentrate on the notion of religious animus I will not be paying much attention to this other notion of what I have called social animus or animus deriving from membership of a particular social group.

KIRBY J: It is not entirely clear in the facts, but did the male appellant divorce his first wife before she committed suicide?

MR REYNOLDS: He did. I am sorry, I meant to refer to that. I thought I did. That is at appeal book page 75 at point 9. That divorce apparently took place in 1999.

KIRBY J: Did he divorce her or did she divorce him?

MR REYNOLDS: Your Honour, I do not know.

KIRBY J: Not clear.

MR REYNOLDS: So that is the case that was presented to the Minister’s delegate. He refused protection visas. The matter then went to the Tribunal where the delegate’s decision was affirmed. I will come back to this, of course, but we say that at the Tribunal there was a breach of section 424A. The Tribunal’s reasonings are appeal book page 71 and following. There was then an application for certiorari before Federal Magistrate Raphael by my clients. That application failed. It was held that there was no breach of section 424A relevantly. It then went on appeal from there to the Full Federal Court constituted by Justice Madgwick who dismissed the appeal.

Can I deal next with the argument about a breach of section 424A and, again, it may be that your Honours are extremely familiar with this provision, in which case I will move as quickly as I can, but - - -

GLEESON CJ: What is the information in this case within the meaning of section 424A(1)(a), particulars of which should have been given?

MR REYNOLDS: What I will describe as the relevant passages in the statutory declaration.

GLEESON CJ: The information is information to the applicant that this is what he had said in the statutory declaration?

MR REYNOLDS: Yes. I will go into that in a little more detail in a couple of minutes, your Honour, but jumping ahead, that is the information.

KIRBY J: There is a line of territory in Federal Court, is there not, perhaps in this Court, that says it is not necessary to notify the steps in the reasoning of the decision-maker and the Act does not require that in terms, but it does require the supply of the particulars of any information. Is that correct?

MR REYNOLDS: I think that is right, your Honour, but nothing turns on that in this case.

KIRBY J: Except that the argument against you is that it cannot have been the meaning of the section to require the provision of the very information that the applicant has provided and that - - -

MR REYNOLDS: Your Honour, I do not think that is the Minister’s argument. On any view, there was nothing provided to my clients in writing, so what I have to show is, as it were, working back retrospectively from the reasons, that there is something that should have been given to my clients in writing and that (1) provision of particulars, (2) a written invitation to comment - - -

GLEESON CJ: That is what I want to understand. Is it your case that what should have been said to your client was, “In your statutory declaration of such and such a date, you said so-and-so?”

MR REYNOLDS: Effectively, yes. As I say, I will spell out in detail in a moment what the case is or what we say should have been done under section 424A, but I will need to go to a couple of matters before I get to that.

KIRBY J: The steps in the reasoning issue arise because, as I understand it, it has been held that you do not have to say “and I want that”, because there seems to me to be an inconsistency between what you said in your statutory declaration and what you have said in evidence before the Tribunal.

MR REYNOLDS: Well, here there was no invitation to the applicant to comment at all in writing and, your Honour, I do not think anything turns on the precise nature of the invitation or explanation - - -

KIRBY J: Does anything turn in this case on the country information and the suggestion that India has an efficient computer system which would have stopped the appellants from leaving India if they had been on notice?

MR REYNOLDS: Your Honour, that was discussed on the facts but it is not important to my argument and I do not expect that my learned friend will be taking you to that either. Can I get at, as it were, the gist of the breach of section 424A and then go to it in more detail. The gist of it is that the Tribunal looked at inconsistencies between the statutory declaration, on the one hand, and the oral evidence given by the husband, in particular, on the other, used those inconsistencies to make adverse credit findings, found that he was not a witness of credit, and this led to the rejection of both the primary claim and the residual claim, there being on any view no written notice of anything as required by section 441A.

GLEESON CJ: Now, it is not suggested that the relevant information is the information that the Tribunal considers there are inconsistencies.

MR REYNOLDS: No, your Honour. The key passages in the reasoning – and I will take your Honours to these briefly and then formulate the argument more specifically.

GUMMOW J: Do we not, at some stage, have to find out just what is decided in SAAP as to the construction of 424A?

MR REYNOLDS: Your Honour, I will be submitting that this case can be decided without picking up the law reports and that - - -

GUMMOW J: You have to construe 424A.

MR REYNOLDS: We do. I will be construing it, of course, in due course, but the argument that I wish to present is that, in effect, no matter what construction is taken of section 424A, there was a breach in this case, and that is why my submissions this morning will not be replete with many case references. If I may move on then to the - - -

GUMMOW J: You also have to rely on the proposition that the breach of 424A constitutes jurisdictional error because it is mandatory in the Project Blue Sky sense, do you not?

MR REYNOLDS: Your Honour, there are three - as I understand it the decision in SAAP (2005) 215 ALR 162 - this is an argument which is a notice of contention argument, but just to anticipate things very briefly we submit that, as noted in the headnote of that decision, this Court held, or three Justices of this Court held that non-compliance with section 424A renders the decision invalid, respectively, Justice McHugh at paragraph 77, Justice Hayne at paragraph 208 and Justice Kirby agreed with Justices McHugh and Hayne, relevantly, at paragraph 173 so we know that the Minister is not having a tilt at SAAP. That has been clarified both in correspondence and also in the submissions.

If I can just take your Honours to the key passages. They are only very brief in the reasoning of the Tribunal. They are in the appeal book at pages 75 to 76, relevantly, page 75 at line 15 over to page 76 at line 5. To save your Honours’ reading that text, your Honours’ tipstaves should have a document deriving from us headed, “Discrepancies between Statutory Declaration and Oral Evidence on the issue of charges”. That summarises the points, as we understand it, that are being made by the Tribunal. We then lead to – and I will not go through that, your Honours can read that in due course, but we then go to page 84 of the appeal book, particularly at line 20 where it is noted by the Tribunal that:

the applicant husband did not impress me as a reliable witness. I found the modifications and refinement between his written claims and his oral evidence, within his oral evidence and the inconsistency with that of his wife’s oral evidence as to when he was actually arrested in 2001 to be unsatisfactory.

If I can also take you back to that same page at about line 13 there is also a statement:

In my view the applicant husband has not been entirely frank in his evidence as to the nature and extent of his actual difficulties in the past. I acknowledge that the assessment of credibility should be approached with due caution . . . However there are a number of aspects about the evidence before me which I find troubling.

That word “difficulties” harks back to line 1 on that page which then lists the assault then various arrests in 1997, perhaps 1998 or 1999, then in 2001, et cetera.

GUMMOW J: You notice it says “he divorced her” about line 10 on the page?

MR REYNOLDS: I am grateful for that correction of what I told your Honours earlier. Now, this is in the course of a heading at page 83, line 21, “FINDINGS AND REASONS,” and this is dealing with the primary claim. Now, the conclusion in relation to the primary claim is at page 86, line 18:

For the reasons set out above –

which include all of those adverse credit findings, obviously –

I find that at the time the applicant and his wife left India there was no outstanding charge against them -

So there are a lot of reasons but integral to the finding that there was no outstanding charge are these adverse credit findings which derive ultimately, we submit, from the information in the statutory declaration.

If I can answer directly the question that your Honour the Chief Justice asked me a little earlier, addressing, I hope with some precision, the issue of what the Tribunal should have done to comply, I say, first of all, that written particulars in accordance with section 441A of the information should have been provided, namely the relevant passages in the statutory declaration. Now, I cannot be more specific than that because I am working back retrospectively from the reasons, but they would be the passages, one would assume, which talk about the various charges as we have set out in our little note.

GUMMOW J: Given when?

MR REYNOLDS: Well, the section does not, on my recollection, deal with the question of time. Obviously it would have to be given before the decision by the Tribunal was delivered. We would say it would also have to be delivered in sufficient time to enable some response to be given so conveniently probably at the hearing or given after an adjournment with the possibility of a further hearing before the Tribunal.

GUMMOW J: What is the comment spoken of in paragraph (c)? How is that to be communicated? The oral hearing is finished, one assumes.

MR REYNOLDS: Well, that has to be in writing under 441A.

GUMMOW J: Well, “invite the applicant to comment”. How is the applicant to comment?

MR REYNOLDS: I am sorry, I did not - - -

GUMMOW J: How is the applicant to comment? By what medium?

MR REYNOLDS: It is a matter for the applicant.

GLEESON CJ: But the particulars that you say should have been given under 424A(1)(a) were as follows – I am sorry. You made a statutory declaration on such and such a date. The contents of that statutory declaration included paragraphs X, Y and Z. You are invited to comment.

MR REYNOLDS: Yes, and in addition to that there has to be an explanation which apparently does not need to be in writing, although I am told it usually is, explaining why the information is relevant.

HAYNE J: Is the premise for this limb of the argument that the statutory declaration does not fall within 424A(3)(b)?

MR REYNOLDS: That is an implicit premise in this argument, yes, your Honour.

HAYNE J: Is that premise right?

MR REYNOLDS: I understand that there is no dispute about that.

HAYNE J: There may be no dispute, but is it right?

MR REYNOLDS: Your Honour, the word “application”, as I understand it, has been interpreted to mean application.

GUMMOW J: Back at the stage when it is before the delegate.

MR REYNOLDS: It means that the applicant gave, for the purpose of the application before the Tribunal – and there is no doubt that my client did not hand up, as it were, this statutory declaration before the Tribunal. The word “application” there – and I understand the point your Honour Justice Hayne is making – has been interpreted – the word “application” refers to the Tribunal, not to the application before the Minister’s delegate and there are cases that deal with that in the Federal Court and they are not challenged in this Court.

KIRBY J: We have had cases, or at least a case, in which the Tribunal member wrote a letter to the applicant asking for comment. Do you remember what that case was?

MR REYNOLDS: No, your Honour.

CALLINAN J: Mr Reynolds, I have to say to you, whether that is challenged in the Federal Court or not or whether the Federal Court decisions in relation to (3)(b) are challenged or not, does not foreclose the matter so far as I am concerned.

MR REYNOLDS: If I may respectfully say so, there is obviously an argument there, but this is not a point which the Minister is taking on this appeal and we do not come here today, your Honour, ready to argue it. It is a matter for the Minister to take the points that the Minister wants to take by way of notice of contention or otherwise and that is simply not one of them. For whatever reason, the Minister seems content to abide by the decisions of, I think, Full Federal Court on this point. This case might provide an appropriate vehicle to have challenged those decisions. The Minister knows very well what they say and has chosen not to challenge them. That is the question of breach.

Can I move to the final limb of my argument which is the impact, we say, of the breach on the reasoning of the Tribunal. The words of 424A show that we need to show that the information which was not disclosed in accordance with section 441A form at least the reason or at least a part of the reason why the Tribunal affirmed the decision within the meaning of this first subsection of 424A.

We submit that that is, in this particular case, easy to do and the reason for that is that we say that this information we have been talking about was a core reason for rejecting both of these claims. So what I want to do now is to show how this information was a core reason for rejecting the primary claim and how it was also a reason for rejecting what I have described as the residual claim.

GLEESON CJ: The communication from the Tribunal would have to be, would it not, “You said this in a statutory declaration. What you have said in your statutory declaration is a reason for refusing your application because what you said in your statutory declaration is in some respects different from what you have said in your oral testimony”?

MR REYNOLDS: That would be the ideal and fairest way of doing it, yes.

KIRBY J: But is that not the disclosure of the reasoning process which – I may be wrong, but I thought that Federal Court authority and perhaps this Court has said it does not have to be disclosed.

MR REYNOLDS: Your Honour, to some extent, as I said before, the precise nature of the invitation and the precise nature of the explanation, if I can put it that way, in this case are academic because there was no written disclosure of anything. So that whilst as a matter of neatness one would like to formulate with as much precision as possible exactly what should have happened because we know that no written document was produced or handed to my clients, in one sense, the precise niceties of what should have been in it do not arise in this case. But I do submit that, following on from what your Honour the Chief Justice said, certainly the ideal way of doing it, as a matter of fairness, would have been to point the applicants in the direction of the inconsistencies and say that that may lead to adverse findings in relation to those portions of the case.

As far as the impact on the primary claim was concerned, this is dealt with in the appeal book at pages 84 to 85. I have already taken your Honours to the relevant passages by way of background. That is, page 84, line 20, where there is a major credit finding against my client, the husband, on the basis of these inconsistencies and, higher up the page, at about line 13, there are statements that:

the applicant husband has not been entirely frank in his evidence as to the nature and extent of his actual difficulties in the past.

I took your Honours also at page 86, about line 18, to the finding that “there was no outstanding charge” at all as a result of those credit findings. That finding that there was no outstanding charge at all is a result, relevantly, of a finding that he was not a “reliable witness” at page 84, line 20, and also the finding that he was not frank in relation to past difficulties. Those findings as to lack of reliability are themselves a result of the information in the statutory declaration, namely the inconsistencies between it and his oral evidence.

So, we submit that the breach of section 424A affects the reasoning on this primary claim root and branch. It has a consequential knock-on effect also because, given the finding that there was no outstanding charge, the Tribunal does not go on to consider at any stage whether these earlier difficulties and charges referred to at the top of page 84 were the result of religious animus, as I have called it, nor does the Tribunal go on to determine whether the 2001 charge was itself laid out of religious animus on the part of Salima’s family for the simple reason that if you find that these events did not occur or you fail to find that these events occur, then there is no need to consider what the reasons for them were.

As far as the impact on the residual claim is concerned your Honours will recall that the residual claim is a fear that my clients had that false charges would be laid in the future by reason of religious animus. In other words, when they go back to India they fear that Salima’s family, because of religious hatred, et cetera, will get the authorities, who are apparently in their pocket, to charge them in the future on false charges.

Now, any attempt obviously to make a case of that kind would have to be made on this basis. Look at all of the false charges that have been levelled against the husband in the past for religious reasons - if your Honours go back to my list, in 1997 and 1999 and 2001 - find that those charges have been levelled against him because of religious animus and, having made those findings, then ask the Tribunal to infer that there is a well-founded fear that similar false charges will be laid for similar reasons in the future.

The difficulty is that that argument in relation to this residual claim – and your Honours will see at line 21 of page 86 the residual claim is mentioned and it is discussed from there pretty much towards the end of the reasons which finish on page 89. The reason that this residual claim is affected by the breach is that if there have not been findings of earlier charges in 1997 twice and 1999 and in the year 2001, that therefore means there is no finding that those particular charges were levelled out of religious animus.

GLEESON CJ: Is the persecution that is feared abuse of the criminal justice process?

MR REYNOLDS: Effectively, yes. Putting it loosely and perhaps unfairly to everyone involved, but to get the gist of it, Salima’s family hate the husband for religious reasons. They have the police or other relevant authorities in their pocket. Motivated by that religious hatred they go and get the police to charge them on false charges.

GLEESON CJ: The persecution that is feared is malicious prosecution?

MR REYNOLDS: Effectively, yes. But where the relevant prosecutor within that realm of discourse in a real sense is Salima’s family rather than the authorities, although the authorities go along with it or, within the terms of their case law, they condone it.

CRENNAN J: Is it suggested the authorities go along with it for religious reasons?

MR REYNOLDS: No, no such case was put.

KIRBY J: What is your answer to the suggestion that the Tribunal dealt with the way in which your client had put the case, but came to its essential reasons on pages 87 and 88 when it said:

I find that the harm the applicant fears is from private individuals settling a private dispute and as such it does not constitute persecution of a kind which can attract protection under the Refugees Convention -

That is at the top of page 88 and then line 25:

whatever fear of harm he held does not relate to a Convention reason.

On page 89 at line 9:

I am not satisfied that the applicants’ fear of harm is owing to a Convention reason.

All of the earlier things were, in a sense, responding to and recounting and chronicling the story your client told, but the reason for rejecting the appeal or application for review was that it just was not of a kind that attracted the Convention.

MR REYNOLDS: That is the reason for rejecting the residual claim. That is not the reason, of course, for rejecting the primary claim. I have given your Honours reasons as to why the rejection of the primary claim was affected by the non-provision of information. I now need to show how the residual claim was affected by the non-provision of information in accordance with the Migration Act.

KIRBY J: I do not see a division here between primary and residual. The Tribunal member is simply recounting the story and then saying, “Well, all of this is very well and there are various inconsistencies, but the bottom line is this is a private thing. It has nothing to do with the Convention.” You have to postulate that there is a genuine fear of persecution if returned to India for reasons of persecution, for reasons of religion.

MR REYNOLDS: Your Honour, can I deal then and respond directly to what your Honour is asking me by showing how the breach affects these findings on this residual claim. Your Honour has said that one needs to show that the harm as to future false charges will stem from a Convention reason. Relevantly, it will be for reasons of religion. Now, there is a finding, as your Honour has said, in relation to the residual claim on pages 87 and 88 that any harm that is feared as to the future will not be for a religious reason.

How then, is that reasoning on this residual claim, affected by the breach of section 424A? I say that it is fairly simple and that is that if you want to show that there is a risk in the future of false charges being laid for religious reasons and your way of showing that is to point to false charges in the past being levelled for religious reasons, then if there is a finding that there have not been any charges levelled in the past, that therefore means that you cannot show that those past charges were levelled for religious reasons and therefore you will not be able to show the likelihood of future charges being levelled for religious reasons. In other words, the reasoning on the primary claim also affects the reasoning on the secondary claim.

Now, your Honours will have seen – I will just give you the references to the Tribunal Member repeatedly saying “the evidence before me”, AB page 86, line 38; 87, line 2; 87, line 7; 87, line 14; 87, line 21; 87, line 32 and 88, line 24. What that means, in context, we say, is, “On the evidence before me, including the findings that I have made in relation to the primary claim” which relevantly did not include findings that these previous charges had ever been levelled.

So we never got to first base before the Tribunal on either of our cases because the substratum for showing either the primary claim or the residual claim was to show that there had been these past charges levelled and they were levelled for religious reasons. There is another aspect to this and I can conclude on this note with a couple of small points.

This particular breach led to adverse findings of credibility and my proposition is that it is often difficult to tell exactly where the impact of an adverse finding of credibility begins and where it ends. Now, there are a couple of cases I would take your Honours to briefly on this point. The first is a decision of this Court in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141. This is a joint judgment relevantly at pages 145 at about point 6, through to the first three lines of page 146. At the end of page 145, the Court says:

It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice –

this is the denial of natural justice in relation to a credibility finding –

had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.

I interpolate, a fortiori, where the witness is one of the parties. Now, there are similar statements – I will just give your Honours the references – by most of your Honours in the decision of this Court Re Refugee Review Tribunal & Another; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82. Can I just give your Honours references to paragraph 4, which is Chief Justice Gleeson; paragraph 80, which is Justices Gaudron and Gummow; paragraph 133, which is Justice Kirby agreeing with Justice Gleeson; and also Justice Callinan at paragraph 211 where that - - -

GUMMOW J: This is not a natural justice case.

MR REYNOLDS: No, it is not, but I submit that the same idea applies mutatis mutandis.

GUMMOW J: Is this construing the expression:

information that the Tribunal considers would be the reason, or a part of a reason –

in 424A(1)?

MR REYNOLDS: Yes, ultimately. Indirectly, of course, Stead was not a case on that point. Your Honour has made that, but - - -

GUMMOW J: I know. That is right.

MR REYNOLDS: But the answer to your Honour’s question is yes. I interpret 424 - - -

GUMMOW J: Where does this expression “core reason” come from? It is not used in the section.

MR REYNOLDS: Well, it does not, but I have used that expression to - - -

GUMMOW J: I know it is in some of the Federal Court cases but it does not come out of the Act, anyway.

MR REYNOLDS: No, it does not and that is one of the problems, but within the meaning of the Act I only have to go back to show that this was information:

is the reason, or a part of the reason -

Your Honours will have seen that we adopt the reasoning on the interpretation of that phrase which is current in the Full Federal Court which is a decision I will not take you to, but I will give you the reference - in SZEEU v Minister for Immigration [2006] FCAFC 2; (2006) 150 FCR 214. That decision, my learned junior, Mr Izzo, has told me has also been recently applied in a case called NBKT v Minister for Immigration [2006] FCAFC 195 - it is unreported - where Justice Young at paragraph [31] adopted SZEEU and Justices Gyles and Stone agreed with him. So, ultimately though, your Honours - - -

KIRBY J: We have had a couple of cases in this Court where this issue which is raised by the notice of contention have been argued. Do you remember what those cases are? Maybe they will be referred to by the respondent.

MR REYNOLDS: Perhaps. So that is our case in-chief and really submit this case, given the way I have put it, does not really raise the precise interpretation of the meaning of section 424A because no matter what the - - -

GLEESON CJ: I notice from the headnote in SZEEU that the Minister in that case apparently did invite the Full Court of the Federal Court to depart from its earlier decisions in relation to the point that was mentioned earlier.

MR REYNOLDS: That is right.

GLEESON CJ: That is to say the meaning of the word “application” in section 424A(3).

MR REYNOLDS: This apparently is a point that the Minister knows about and has made a decision not to raise it for this Court. I am just not entirely certain, just before I sit down, how the notice of contention issues are going to be dealt with. Can I just say something very, very briefly before my friend rises to deal with it. Our problem is that we maintain, particularly on what might be called the exercise of discretion whether to grant certiorari, that neither in the notice of contention nor in the written submissions is the Minister’s case clear on that.

What I was going to suggest, and I gather this is what your Honour the Chief Justice suggested to me, is that the notice of contention could be filed, your Honours can hear the argument from Mr Beech-Jones on it. It may be, depending on what is put, that we are in a position to respond, but it may be, and I just flag this, that I need to raise with your Honours the possibility of replying to it in writing once it has been finally articulated.

GLEESON CJ: In all events, to the extent to which you are in a position now to say what you want to say about whether there should be leave to rely on the notice of contention and to the extent to which you are in a position now to say anything you want to say about the merits of the notice of contention, this is your opportunity.

MR REYNOLDS: Perhaps if I can respond on the merits of the notice of contention in due course.

GLEESON CJ: No, do what you can now. If ultimately you say you want to put further material in writing, then we will consider whether you should be given that opportunity, but we might as well make use of the time that we have set aside to hear this case right now.

MR REYNOLDS: As I understand it, my learned friend is going to present the argument on the notice of contention which he would generally do in any event, and I would, of course - - -

GLEESON CJ: Yes, and that is why we have parties exchange outlines of argument before we come to the oral hearing so that by and large when we come to the oral hearing people know the substance of the arguments that are going to be made. To the extent to which you now know the substance of the argument that is going to be made on the notice of contention, we are interested to hear what you have to say about it.

MR REYNOLDS: As I understand it, it was the point that the decision was not affected by the breach and I have dealt with that. So far as anything else is concerned, we remain to be enlightened.

GLEESON CJ: I understand one of the submissions that the respondent wants to make to be that this is a discretionary remedy that you seek and if in a given case one were to come to the conclusion that the failure to comply with section 424A did not affect the outcome of the proceedings, that could be a reason why the Court in its discretion would deny you the relief that you seek. Is there anything you would like to say about that?

MR REYNOLDS: Again, it all depends on how my learned friend articulates this.

GLEESON CJ: I suppose he articulates it the way I just articulated it, that is to say, that this is a discretionary remedy and if, in this case, for example, we were to come to the conclusion that the failure to comply with section 424A in the result did not affect the decision of the Tribunal, a premise with which we know you do not agree, then in such a case, if we were to come to that conclusion, it would be open to us to decline relief.

MR REYNOLDS: Your Honour, I have put, I hope, detailed submissions on how the decision was affected.

GLEESON CJ: Yes, you do not have to concede the premise, but if the premise were correct, there is a point of law that your opponent wants to raise, that is to say, in cases, of which the present may or may not be an example - that remains to be decided - in cases where failure to comply with 424A does not affect the outcome of the proceedings discretionary relief should be denied.

MR REYNOLDS: That draws a distinction between outcome and the result, on the one hand, and affecting the decision on the other, which is what I have addressed my submissions to and your Honour is raising that distinction with me now.

GLEESON CJ: Yes.

MR REYNOLDS: My difficulty is that – and we did seek particulars of this – is how is it said that the – what is the submission with precision on why the outcome was not affected. If we have shown the decision was affected then that goes, we say, a long way towards showing the outcome was affected. We need a very finely tuned submission on that point and we have not – this is our point about the notice of contention – we have not yet got that and that is what - - -

KIRBY J: Can I help you to focus on what at least is troubling me and it is this, that if you stand back from the reasons of the Tribunal and you look at the way in which ultimately the Tribunal disposed of the matter they say, “Well, the real reason for any disinclination of your client to go back to India is not a Convention reason, it is just that he has got into a fight with his former in-laws and that they are making life difficult and unpleasant over there” and then you come along and say, “Well, by the course that has been adopted and the non-compliance with 424A we didn’t get a chance to put our best foot forward in relation to our contention that the real reason we don’t want to go back to India is that we fear persecution for religious grounds”.

Now, I just, myself, do not see how anything you can say within the parameters of what has been said before the Tribunal up to date could alter the compelling force of the conclusions that are stated at the end of the Tribunal’s decision, when having chronicled the way you made your complaints, the Tribunal member came back and repeatedly said, “This doesn’t relate to a Convention reason. This is just a personal dispute in the former family of the appellant”.

MR REYNOLDS: Your Honour, we take those passages to be referring to the reasoning on the residual claim. We submit that they cannot be referring to the reasoning on the primary claim and the reason is that that would create an absurdity.

KIRBY J: Ultimately, the whole claim must be fitted into the language of the Convention, primary, residual, beginning, end, and when you look at the language of the Convention it is to deal with great issues, not barneys in a family.

MR REYNOLDS: Can I deal with it this way? What your Honour is doing, with respect, is taking pages 88 and 89 and reading them as reasoning which applies to both what we have called the primary claim and the residual claim and is making findings of fact that vis-à-vis the primary claim, the reason behind the charges was not religious, and vis-à-vis the likelihood of future charges being laid that they are not likely to be laid for religious reasons.

GLEESON CJ: Yes, I think the idea being – and it may be right or wrong as a matter of fact – but the idea being this; these former in-laws of yours who are causing you so much grief hate you and they hate you because they have become obsessed with the idea that you are responsible for the death of their daughter. Well, that might be a very unfortunate thing for you, but it is not persecution for reasons of religion.

MR REYNOLDS: Can I answer this I hope with some precision. What we are talking about here is essentially a matter of construction of pages 88 and 89 as to whether these amount to findings of fact that vis-à-vis what I have called the primary claim and vis-à-vis what I have called the residual claim, that these claims have not established a Convention nexus, particularly because it has not been shown that there is this religious nexus, if I can put it that way.

Now, we submit that it is impossible to construe this reasoning here at pages 88 and 89 as referring back to the reasoning on the primary claim. Can I indicate why? If we go back to what the primary claim is, in essence, it is about charges being levelled in 2001 for reasons of religion. The finding in relation to the primary claim is that no such charge was levelled. It is a logical impossibility to follow that on with a finding that when those charges I have found were never levelled were in fact levelled, they were not levelled for a reason of religion. That is why it is impossible, I submit, to construe the reasons in that way.

Can I give a colourful example of what I mean just to make the point? One cannot interpret reasons of a tribunal of saying (1) “I find this man never went to the hotel”, and secondly, “I find that when he was at the hotel and got in a fight, his intention when throwing a punch was one of self- defence”. That is logically absurd.

GLEESON CJ: According to your client’s claims, what was the charge or what were the charges against him?

MR REYNOLDS: In 2001, they were – this is one of the problems, to be fair, that the Tribunal had, is that they were hung on the hook of responsibility for his wife’s death.

GLEESON CJ: Yes, but what was the charge? I mean, being responsible for your wife’s death is probably not - - -

KIRBY J: India has a penal code which is very similar to the penal code of Queensland. I mean, they are not a country whose legal system is completely alien to ours, so that it is not as if there would be some strange, weird crime in India. It is very unlikely, anyway.

MR REYNOLDS: Your Honour, I cannot answer that question because the material on the appeal book does not enable me to do so and, apparently, my client was not able to formulate with the greatest specificity what the charge was about either. So that is dealing with - - -

HEYDON J: On page 47, which is the statutory declaration, it seems to indicate that:

On December 2001, the Bombay police came to my house and arrested me and my wife and filed charges for Salima’s death . . .

Police filed cases for murder and false charges us.

MR REYNOLDS: This is at line?

HEYDON J: The last reference was at line 18 and the earlier reference was at about line 12. Line 12 “filed charges for Salima’s death”; line 18 “filed cases for murder”. Is that the same thing that - - -

MR REYNOLDS: Your Honour is quite right. There are other passages in the Tribunal where the Tribunal member says there was some doubt about the exact nature of the charges. It may be that I am picking that up from the oral evidence rather than from what is in the statutory declaration.

GLEESON CJ: I think the Tribunal had some difficulty reconciling the proposition that there were pending murder charges against him with the fact that he exited India so easily.

MR REYNOLDS: If I can finish the second response to your Honour Justice Kirby, because I have just dealt with how those reasons cannot be read as findings in relation to the primary claim, we agree that they should be read as findings in relation to the residual claim, but your Honours have already heard an argument from me as to how the findings that were made on the residual claim were affected by the breach of section 424A. So they are my two responses no matter which way this is interpreted. Of course, because these are independent fears, both giving rise to this fear under the Convention, my learned friend has to show that this point knocks out both claims and I submit that he cannot do that. If your Honours please, those are my submissions.

GLEESON CJ: Thank you, Mr Reynolds. Yes, Mr Beech-Jones.

MR BEECH-JONES: Your Honours, every point that I seek to agitate that extends beyond this case has as a premise the way that one reads these Tribunal reasons and, indeed, it may be that the four corners of the appeal are decided within the Tribunal reasons. So could I take your Honours back to perhaps, over the pages Mr Reynolds took your Honours to, to explain how we submit the reasons should be construed.

At the outset, can I say we do not, with respect, accept my friend’s dichotomy between a primary claim and a residual claim in the sense that he described them. There is, in fact, a very specific way in which the Tribunal analysed this case. It used the word “residual” but not in the sense my friend used it. Could I take your Honours to the top of page - - -

CALLINAN J: Before you do that, is it right, as Mr Reynolds submits, that you do not seek to take any point about information and application?

MR BEECH-JONES: I think the point being I am not instructed to argue that the phrase “purpose of the application” in section 424A(3)(b) is referable to the application for the visa. In other words, that I am not instructed to argue that the Full Court of the Federal Court has been wrong in construing that as a reference to the application for review before the Tribunal.

CALLINAN J: Do you say then that the statutory declaration before the Minister was information?

MR BEECH-JONES: Yes, your Honour. I accept that, your Honour.

CALLINAN J: You accept that. Do you accept that that information was a reason or the reason for the Tribunal’s affirming the decision?

MR BEECH-JONES: No, your Honour, I do not accept that.

CALLINAN J: You will no doubt say why that is so.

MR BEECH-JONES: Indeed, that is principally why I need to take your Honours through the reasons. Can I just, while I have the Act - - -

CALLINAN J: Looking at it in abstract, do you say that had there been reliance upon a statutory declaration, which was in part in conflict with other material and that that conflict was relied upon, that the information constituting that conflict or giving rise to that conflict would be capable of being a reason for a decision and therefore a decision made in breach of 424A(1)?

MR BEECH-JONES: Yes, in the abstract. Yes, your Honour.

CALLINAN J: So this is a very facts specific case and you will have to focus closely on the reasons of the Tribunal.

MR BEECH-JONES: Indeed, your Honour. While I have the Act in front of me, we submitted the relevant reprint was Reprint 9 and it may have some significance because I am not sure if my friend’s version, that is Reprint 8, has section 422B in it and that was applicable. It may inform the matter. We do not seek to draw anything one way or another.

GUMMOW J: No, it does not.

MR BEECH-JONES: We had Reprint 9 on our list, your Honours.

GLEESON CJ: We have section 422A but no 422B.

MR BEECH-JONES: I apologise it is not on our list, your Honours. Could I inquire whether your Honours’ reprints have sections 424B and 424C?

GLEESON CJ: No, but we have 424B in annexure A to the appellants’ written submissions. We do not have 424C.

MR BEECH-JONES: Your Honours will see from the extract in our written submissions that that– and I think this is a point your Honour Justice Gummow raised about how one responds – it provides that the Tribunal, in its invitation, is to specify the way in which the additional information in response is to come and that is either to be by way of a further interview or in a written form which must be provided within a prescribed period.

GLEESON CJ: Just get away from the particular problems that might arise where it is inconsistency that is giving rise to the issue as it is in this case. Put that to one side. Suppose you had a case in which, in his statutory declaration, an applicant had made an admission which produces the consequence that the Convention cannot apply. Suppose, for example, in his statutory declaration the applicant had said these in-laws loathe me but it is not anything to do with religion, it is because of personal dislike.

Now, is the theory that you accept that at the oral hearing the Tribunal might say, and perhaps should say to the applicant, “How can you possibly succeed in this application? Look at the admission you made in your statutory declaration. If this is persecution, it is not for a Convention reason. What do you have you to say about that?”, but whether or not the Tribunal says that at the oral hearing, following the oral hearing the Tribunal has to give the applicant a document saying, “In paragraph 10 of your statutory declaration you said that the reason these people hate you is not religion. That appears to mean that if what is happening constitutes persecution, it is not on a Convention ground. You are invited to comment on that”.

MR BEECH-JONES: Your Honour, if I can put it this way, it is the tide of authority which we accept is that that is what would be required, but to add to your Honour’s example, it would occur in a context where at the hearing presumably the applicant would start by saying, “I am a refugee because the harm I fear is for a Convention reason” and then a contradiction would presumably then be brought to their attention, “But you said in your statutory declaration”.

GLEESON CJ: Yes, but that is not enough to bring it to their attention. You have to give them a document later.

MR BEECH-JONES: Yes, it has to be brought to their attention in writing. That was a battle that was fought long and hard in the Federal Court and the Minister came second and I am not here to argue to overturn the result of that contest. Could I take your Honours to the decision at the top of page 84?

GUMMOW J: I am sorry, I am still – now, I have Reprint No 9. What sections were you talking about?

MR BEECH-JONES: Firstly, section 422B which provides in subsection (1):

This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

GUMMOW J: That is new, I think.

MR BEECH-JONES: It is. It applied to this case. I think in previous cases your Honours have had to consider both a procedural fairness argument and a 424A case where this is only a 424A case. Then your Honour will see the other section was 424B and it provides:

(1) If a person is:

(a) invited under - - -

GUMMOW J: That is in Reprint 8.

MR BEECH-JONES: It is in Reprint 8.

GUMMOW J: Yes.

KIRBY J: Was that engaged, given that the appellants were not invited?

MR BEECH-JONES: No, it would need to have been engaged if section - - -

KIRBY J: But it was not in fact engaged, was it?

MR BEECH-JONES: Not in this case, no.

KIRBY J: So we are not really concerned with it, are we, unless it throws light on what the meaning of 424A is?

MR BEECH-JONES: No, your Honour, I think his Honour Justice Gummow inquired as to what the form of the invitation must be and the only reason I draw it to your Honours’ attention is 424B makes provision in relation to that.

KIRBY J: But it is immaterial to this appeal.

MR BEECH-JONES: Yes, your Honour.

GUMMOW J: That is a matter for me to think about.

CALLINAN J: And 424C, was it in force?

MR BEECH-JONES: Yes, your Honour.

KIRBY J: Do you suggest that 424B throws some light on 424A?

MR BEECH-JONES: Not for the matters that I am about to address on, your Honour.

GUMMOW J: It is probably a good idea to read the whole of Division 4, I would have thought.

MR BEECH-JONES: Just having noted that, could I take your Honours back to page 84. At the top of the page the Tribunal recounts what my friend described as the difficulties. In the last two sentences, and as we understand this characterisation of his case has not been challenged, recounts:

As his case has been put it is this last charge –

that is the 2001 charge, that is the charge that occurred after the suicide of his first wife:

and the related death of his first wife which give rise to the harm he fears. On his evidence he had no difficulties with the police or the family of his first wife after he divorced her in 1999 until her suicide in 2001.

The Tribunal had identified what was said to be the source of the harm he feared on page 84.

KIRBY J: The applicant is recorded there as stating that the charge remains unresolved and the charge, as Justice Heydon pointed out, appears to have been a charge of murder – page 47.

MR BEECH-JONES: Yes, your Honour.

KIRBY J: I just cannot believe that anybody could leave India under a charge of murder without being apprehended at the barrier.

MR BEECH-JONES: Be that as it may, your Honour, from page 84 to page 86 the Tribunal then deals with these credit aspects, including the statement in the middle of page 84:

First the applicant husband did not impress me as a reliable witness. I found the modifications and refinement between his written claims and his oral evidence, within his oral evidence and the inconsistency with that of his wife’s oral evidence as to when he was actually arrested in 2001 to be unsatisfactory.

That is the part I think my friend seeks to rely on. As we understand it, it is directed to the refinements between his written claims and his oral evidence about the charge in 2001 and in particular about the dates.

HAYNE J: Does it follow from what you have said in relation to the hypothetical question about a statutory declaration and whether that is within 424A(3)(b), that the same consequence follows in respect of the written claim made by an applicant when first applying for a protection visa, that that is or contains information which must attract the 424A regime, for if it does, what is that telling you about 424A(3)(b)?

MR BEECH-JONES: Your Honour, I can only – I am not sure about the second part of your Honour’s question, but in terms of the Al Shamry line there is no difference between a statutory declaration provided in support of the protection visa application and a written claim.

CALLINAN J: That would be a very inconvenient result. Does that mean that – one would think that what was said early, on first arrival, and then what was said in order to make an application to the Minister might be much more candid, perhaps unrehearsed and valuable, but yet if there is any departure between any of that material and what is said on the application to the Tribunal, the Tribunal has to go exhaustively through each departure or possible conflict and say, “Look, this may be information upon which I will rely to make an adverse finding against you. What do you say about each and every part of it?” It is an unlikely sort of result, is it not?

MR BEECH-JONES: It is productive of a lot of the inconvenience particularly when one has regard that the function of the Tribunal is to review the decision of the delegate in the first place.

CALLINAN J: Exactly.

MR BEECH-JONES: And under 418 part of the process of review is to have the file of the delegate sent up to them and, indeed, your Honours may recall that whole discussion in Muin and Lie about this - - -

KIRBY J: But on the other hand, the Department has a file. The applicant does not necessarily, and often will not, keep material. Many applicants are themselves illiterate or get other people to help them in preparing these documents, and if they are relevant to the determination then it is not all that unreasonable that save for those that have come up in the current application that they should be reminded about them and given a chance to explain them because there may be explanations.

MR BEECH-JONES: Your Honour, I accept – can I perhaps avoid the debate on this because there is a flurry of notes occurring to my right about the position in Al Shamry and I think I would like to just consider that a bit more closely, but perhaps continue with my argument about the Tribunal’s reasoning - - -

KIRBY J: What is Al Shamry? You know all these cases. As far as I am concerned I do not know them and I do not particularly want to.

MR BEECH-JONES: I am sorry. Al Shamry was the first of the Full Court decisions that decided that section 424A(3)(b) was referring to the application for review to the Tribunal and not to the application to the delegate for the protection visa.

CALLINAN J: What is the reference to that, please?

HEYDON J: (2001) 110 FCR 27.

MR BEECH-JONES: And then that was followed in SZEEU which I will take your Honours to.

HAYNE J: This is very much notice of contention territory, I would have thought, and, at the moment, it is not immediately apparent to me that it is within the draft that is presently submitted, but those are no doubt matters you will take to account, Mr Beech-Jones.

MR BEECH-JONES: Thank you, your Honour. Let us go back to page 86. The finding in the middle of the page that my friend took your Honours to was these:

For the reasons set out above I find that at the time the applicant and his wife left India there was no outstanding charge against them and the police maintained no adverse interest in them.

Your Honours will recall the two matters that the Tribunal had identified as the basis for the ongoing fear was the last charge and the related death of the first appellant’s first wife. Then it proceeds:

Notwithstanding this finding there is still the residual claim –

and that is where my friend’s concept of residual must come from –

that the applicant husband and wife fear harm at the hands of Salima’s family as revenge because they hold the applicant husband and wife responsible for Salima’s suicide.

Then the Tribunal then deals with that and it draws a distinction between the position of the family concerning their relationship when it first arose and then the attitude of the family once his first wife had committed suicide. In the second full paragraph on page 87, it proceeds to accept that the first appellant’s religion may have been a factor in why they did not approve of the relationship. That is in the second. Then there is a third sentence refers to a difference in social status, but then adds:

However, this does not mean that the reason for the adverse interest which the applicants fear now and in the future is owing to their religion or social status. The evidence before me indicates that it is the death of Salima which reactivated the interest of Salima’s family in the applicant husband and by association his wife. The applicant husband’s evidence is that after he had divorced Salima he had no further difficulties with her family. It was Salima’s suicide which renewed his fear of harm at the hands of her family.

GLEESON CJ: Their attitude, you say, may be “I have nothing against people of this kind. I just would not want my daughter to marry one”.

MR BEECH-JONES: It is, with respect, I think, your Honour, a little bit more subtle than that. The Tribunal said, “Well, it may have been initially they did not like you because you married her, but the reason they do not like you now, the reason why they are pursuing you now, is because of her suicide”.

GLEESON CJ: It is really the sentence on the bottom of 86, beginning with the word “However” that expresses at least part of the essence of the Tribunal’s decision, is it not?

MR BEECH-JONES: Yes, your Honour. It is also partly – it is that and the passage of time between when he divorced his first wife in early 1999 and the renewal of the vendetta which occurred over two years later after the death of the first wife. That is really what the Tribunal saw as truly significant and this is all on the acceptance of everything he said, but on an acceptance of that the Tribunal said, “Well, they may not have liked you when you married her for reasons of your religion, but the only renewed interested in you is because of her suicide and their desire for revenge”.

KIRBY J: You have, at some point in your argument, to deal with what must be the appellants’ contention that if only they had been given the chance to look at the allegedly inconsistent information, they would have elaborated this issue of religion and that that would have gotten them over the hurdle and given a bit of flesh to that passage at the bottom of page 86.

MR BEECH-JONES: I will come to that, your Honour, but can I just say we answer that this way. The point of the inconsistency was said to be the dates as to, I think, the outstanding charge. That was the point and that is the point that is said to enliven section 424A. No submission which was even remotely responsive to that went in any way to a question of causal nexus. They are just completely different topics.

In the terms of the Convention, the question of the outstanding charge is directed to whether the fear is well founded. The point of the Tribunal was the fear may be well founded, but it is not for a Convention reason.

GUMMOW J: How was 425 ever enlivened in this case? It is a mystery to me at the moment. Section 425 says, “The Tribunal must invite the applicant to appear”. Is that what happened?

MR BEECH-JONES: I believe so, your Honour.

GUMMOW J: Section 425(2) says it does not apply if 424C(2) applies. Do you see that?

MR BEECH-JONES: Yes, your Honour.

GUMMOW J: Section 424C(2) says:

If the applicant:

(a) is invited under section 424A to comment - - -

MR BEECH-JONES: Yes, your Honour, and does not comment.

GUMMOW J: Yes, that is right.

MR BEECH-JONES: Yes, but he was not invited.

GUMMOW J: Does that not suggest some temporal connection? I just do not understand what is going on.

MR BEECH-JONES: If your Honour means that this suggests a sequential operation of the provisions - - -

GUMMOW J: I am just asking you to explain to me what the Tribunal was doing, how the Tribunal ever had any obligation to invite the applicant to appear. It just goes round in a circle, it seems to me. It chews its tail.

MR BEECH-JONES: That may be right, your Honour, but I think we are dealing - - -

GUMMOW J: That does not seem to worry your client.

MR BEECH-JONES: We are dealing with a decision where it did invite them to appear and they turned up and they took evidence from them. But, your Honour, can I just return to these - - -

GUMMOW J: If that is the way your client wants to administer its statute, that is up to him, I suppose.

MR BEECH-JONES: Your Honour, can I just return to the reasons, over to pages 87 to 88. Having dealt with it by referring it to being a personal dispute with no Convention nexus, at the top of page 88 in the first paragraph it says this:

I have considered the applicants’ contention that Salima’s family are powerful and could use the legal system and the police to have false charges laid against them. Although I am not convinced as to the reliability of this contention, in any event even if it were accurate there is nothing before me which would suggest it is the applicants’ religion, social status or indeed any other Convention reason would be the reason or even a factor in the complicity of the authorities in laying charges.

The Tribunal had considered against its own finding the position if false charges were laid against them and considered the authorities had no animus towards them for a Convention reason or any way motivated. Then at about point 7 on the page deals with the question - - -

KIRBY J: Can I ask you this? Why did the Tribunal therefore go into all this other material, which seems somewhat inconsistent with what they are saying there that it is not even a factor? Why go into it at length? Why both about it? If it is not their reason, if their reason is that this is not a factor, it is just a personal conflict, it is not for reason of fear on the ground of religion, why did they not bring that up front and say that and then forget about all this other stuff?

MR BEECH-JONES: I suppose, your Honour, from time to time decision-makers they may be writing it through, they get to almost a point, almost a dead end in their reasons and they say, “Well, I have got to that point and maybe I will go this way” and the Tribunal’s decision record reflects that.

GLEESON CJ: How does section 424A work in the following case? A Tribunal writes reasons or writes a decision, to avoid the word “reasons”, in which it says “I think this applicant is lying his head off and I think that for the following reasons”. However, even if everything he said was true, the application must fail because it does not come within the Convention. How does section 424A work in that situation?

MR BEECH-JONES: In that situation, your Honour, there would be conceivably two reasons for the decision.

GLEESON CJ: That is what I was trying to understand.

MR BEECH-JONES: But in that situation there would be two reasons and that would raise the question we have sought to agitate under our existing form of notice of contention.

GLEESON CJ: How does that example that I have given you relate to this learning in the Federal Court about integral reasons and peripheral reasons or - - -

MR BEECH-JONES: It relates in this way and this is the position following from SZEEU. In the example that your Honour gave there would be two reasons and there would be a contravention of 424A(1) in relation to the first one. If, for example, there was a reliance on material – let us say from a third party source – but they would say that as a matter of discretion relief would be refused. That is how the Full Court decision in SZEEU on the basis that there is an unimpeached, as it were, basis for the decision. That is not affected by the contravention of subsection 424A(1).

KIRBY J: It has a pretty unstable textual foundation, does it not, because section 424A(1)(a) talks of:

particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision –

It does not talk of essential or peripheral or if it is the reason or a part of the reason.

MR BEECH-JONES: Your Honour, my answer to the Chief Justice’s question was directed not to the argument in the Federal Court about subsidiary or peripheral but about how they deal with where there are two lines of reasoning. Within that confines there was also a debate about whether you can have something that is minor or peripheral or whether something truly is the essence of the reason or part of the reason. I will, as it were, I will come – I will need to take your Honours through SZEEU to demonstrate or to show how their Honours deal with that.

KIRBY J: I think it was Justice Sackville who originated this, is it not? Is his theory that a peripheral reason is something that is not the reason or a part of the reason?

MR BEECH-JONES: His theory is that one has to, as it were, unbundle the decision record to ascertain, by reference to the visa criteria, what the reason or perhaps more than one reason was, but there are some matters that may have been referred to or relied on that are subsidiary or peripheral.

GLEESON CJ: But that does not touch the example I gave you, does it, where there are two alternative reasons?

MR BEECH-JONES: No, it does not.

GLEESON CJ: Suppose the Tribunal actually said, “My reasons for this decision are as follows: (1) I think he is telling lies. I come to that conclusion by the following process of reasoning. (2) In any event, even if what he was saying were true it would not be a Convention reason. Full stop.” Now, how do you deal with that situation?

MR BEECH-JONES: I am sorry, your Honour, it.....clear in SZEEU. That situation is dealt with in this way – if there are two reasons and one of them is, for want of a better phrase, unimpeached, and as a matter of discretion relief is declined. Could I just draw your Honour’s attention to point 6 at page 88 that in dealing with the, as it were, recounting the position of the first appellant the Tribunal said:

The evidence before me indicates that the applicant husband is a target of an aggrieved family and whatever fear of harm he held does not relate to a Convention reason.

Your Honours, when one refers back to what were the identified fears, they were an outstanding charge, and the revenge of the family the Tribunal was saying whatever the source of the harm you fear, because on your case it all comes back to the family, it is not for a Convention reason. That is reinforced by the conclusion at the top of page 89:

Accordingly, I am not satisfied that the applicants’ fear of harm is owing to a Convention reason.

What we submit is that, and to take your Honour the Chief Justice’s example, this is not a case where the Tribunal said, in our respectful submission, “Your fear is not well founded and even if it was, it is not for a Convention reason”. To the contrary, by reference to the criteria, the grant of a protection visa, the only basis on which it is said that he did not satisfy the test was it was not for a Convention reason.

KIRBY J: What was the meaning of the use of the word “residual” then?

MR BEECH-JONES: The meaning of the word “residual,” if your Honour goes back to the top of page 84, was the two matters that the Tribunal had identified, that is, the last charge and the related death of his first wife, which give rise to the harm he fears. The meaning of the word “residual” was dealt with after a finding about the charge, but in the course of analysing the residual claim those reasons engulfed the way in which it dealt anything to do with the outstanding charge as well. It did not follow the strict dichotomy that my friend would urge upon your Honours in saying primary claim dealt with on credit grounds, residual claim dealt with on Convention nexus grounds.

This case was ultimately a case where the applicants said we have a well-founded fear of persecution from private actors acting for Convention reasons and the state is unable to protect us. The Tribunal dealt with that by saying whatever harm you fear you fear from your private actors. They are not acting for Convention reasons. To the extent there is anything left over with the state, the state has no Convention motivation to harm you either. So that the whole, we submit, basis upon which the true fighting ground of the appeal falls away, because there was really only one reason, the Convention nexus grounds, and whatever happened on the credit finding, it was not any part of that reason at all.

GLEESON CJ: That argument may or may not be right, but it is very fact specific. But coming to the argument you want to agitate in your notice of contention, it is, is it, based on this Federal Court decision in SZEEU?

MR BEECH-JONES: It is in part, your Honour, to the extent it relies on discretion based on the Federal Court decision in SZEEU. We have also raised, though we accept that certainly the tide of SAAP makes it difficult for us, the question of whether it would go to validity, that is - - -

GLEESON CJ: I would like to understand that a little better than I do.

MR BEECH-JONES: If I could, your Honour. If I could start though to take your Honours to the decision in SZEUU - - -

GUMMOW J: Before plunging into that, can you just try and explain it to me in terms of the statute for a minute. Just look at 424A(3)(b):

This section does not apply to information:

(b) that the applicant gave for the purpose of the application -

Right.

MR BEECH-JONES: Yes, your Honour.

GUMMOW J: Then go back to 424:

(1) In conducting the review, the Tribunal may get any information that it considers relevant . . .

(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.

Is the theory of it all that what is being spoken of in 424A(3)(b) is what is given by a response to an invitation under 424(2)?

MR BEECH-JONES: It is. The theory of it all is that it is not just that material but material that may have been provided with the application for review in the first place to the Tribunal.

GUMMOW J: Where do we see that? Where do we see in the Act, “provision of information in support of the application for review?”

MR BEECH-JONES: Your Honour will not. It is only - - -

GUMMOW J: Exactly.

MR BEECH-JONES: I will not take it any further.

GUMMOW J: There is nothing about it in the Act.

MR BEECH-JONES: There is nothing about it in the Act other than the fact that people from time to time send tribunals pieces of paper.

GUMMOW J: How does the information that was before the delegate get before the Tribunal, including a statutory declaration provided to the delegate, I suppose?

MR BEECH-JONES: That was the process envisaged by sections - - -

CRENNAN J: Section 418(3), is it not?

MR BEECH-JONES: Section 418(3).

GUMMOW J: That is right. So it is a document:

in the Secretary’s possession or control and is considered by the Secretary to be relevant - - -

MR BEECH-JONES: Yes, your Honour.

GUMMOW J: It is not an absolute obligation. It has to be considered relevant. We assume that the statutory declaration was before the delegate.

MR BEECH-JONES: It was and your Honour can assume it was considered relevant.

GUMMOW J: Yes. Now, where do we get a provision in the Act for the statutory declaration to be before the delegate or the Minister, I suppose?

MR BEECH-JONES: If one goes back to section - - -

GUMMOW J: We do not understand the sequence. We are just lost.

MR BEECH-JONES: Yes. Section 54, your Honour, and section 55.

GUMMOW J: Whereabouts in 54?

MR BEECH-JONES: Section 54 is the obligation to have regard to all the information in the application.

GUMMOW J: Yes.

MR BEECH-JONES: Section 55 - - -

GUMMOW J: Section 54(2)(b), is it?

MR BEECH-JONES: Yes, your Honour, or (c), that is, “information is in an application if the information is” attached or “given under section 55”. Then section 55 provides that:

(1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information n making that decision.

GUMMOW J: Then that gets through the sieve applied by the Secretary in 418(3). It finds its way to the Tribunal?

MR BEECH-JONES: Yes, your Honour.

GUMMOW J: And then the Tribunal itself may have supplementation under 424?

MR BEECH-JONES: Yes, and receive material under section 423.

GUMMOW J: Yes.

GLEESON CJ: Then when you come to 424A(1), information given under section 55 which ultimately finds its way through to the Tribunal is not information given for the purpose of the application within section 424A(3). That is the way it works.

MR BEECH-JONES: That is the interpretation in the Full Court of the Federal Court.

GLEESON CJ: Yes, and then the obligation under section 424A(1) is to give the applicant particulars of the information that the applicant had given under section 55.

MR BEECH-JONES: Yes, your Honour.

GLEESON CJ: How do you give an applicant particulars of information the applicant gave under section 55? Do you say you filed a statutory declaration and it included paragraphs 27 and 35?

MR BEECH-JONES: If one were to accept that construction of 424A(3)(b) that would be the way in which one would give particulars, the statutory declaration provided by you.

GLEESON CJ: Then pursuant to paragraph (b) you would say, “And I think it is relevant, or potentially relevant, to the review because it appears to be inconsistent with some things you said at the hearing before me and I invite you to comment on that”.

MR BEECH-JONES: Yes, the scope of the obligation under 424A(1)(b) is obviously an issue in itself, but there must be some content to explain its relevance.

HAYNE J: Leaving aside for the moment whether a statutory declaration provided under 54 or 55 is within 424A(3)(b), does 424A(3)(b), on your submission, extend to the content of a statutory declaration or written argument submitted under 423(1)?

MR BEECH-JONES: Material submitted under 423(1), we would submit, your Honour, would be excluded by (3)(b).

HAYNE J: Yes, let us not get hooked up in the negatives.

MR BEECH-JONES: Yes, I am sorry, that was my confusion. I am sorry, your Honour.

HAYNE J: Section 424A(3)(b) speaks of information which at least includes information contained in a 423(1) document.

MR BEECH-JONES: Yes, your Honour.

HAYNE J: We will presently be let into the secret of whether you maintain the view that it is confined to such information or extends beyond it.

MR BEECH-JONES: Yes, and I am cognisant that if I am instructed to do that I need to - - -

HAYNE J: The expression “information” means what, in your submission?

MR BEECH-JONES: In 424A(1)(a), well, your Honour, I - - -

HAYNE J: No, in 424A(3)(b) I have a particular focus. Yes, of course, you may approach it, and probably should approach it, through 424A(1), but I am not asking you to define it exhaustively, but can you at least exemplify - - -

MR BEECH-JONES: I think in a raw sense evidentiary material, your Honour, I think would be the – without seeking to exhaustively define it.

HAYNE J: Now, there is no requirement, is there, in sections 54 and 55 - are those the two provisions - that any information be provided in the form of a statutory declaration, is there?

MR BEECH-JONES: No, your Honour, it does not have to be.

HAYNE J: And you do not need to be aware of any regulation or any other delegated legislation that would bear on that?

MR BEECH-JONES: No, your Honour, it can be documentary material of one kind or another, marriage certificates, newspaper articles, that sort of thing. Could I take your Honours then to SZEEU (2006) 150 FCR - - -

HAYNE J: Just before you go to it, Mr Beech-Jones, Justice Heydon was good enough to point out that the form of application (1) looks like a prescribed form, (2) seems to require declaration, so not now, but at some point can you point us to the relevant delegated legislation that was in force at the relevant time and fixed those requirements and where we can find them and what their text is.

MR BEECH-JONES: Yes, your Honour. Could I just take your Honours then to the decision in SZEEU.

KIRBY J: By the way, the decision of the delegate on page 57 is founded squarely in the fact that whilst the delegate accepted individual hostilities and within religious sects may occur, he said that this did not fall within the systematic kind of concern that the Convention is dealing with.

MR BEECH-JONES: Yes.

KIRBY J: That was the foundation on which the Tribunal was asked to look at the matter.

MR BEECH-JONES: And that was to forestall any SZBEL argument that was discussed with them at the hearing. If I could take your Honours to Justice Allsop’s judgment beginning at page 265 and his Honour’s judgment on the points I am to take your Honours to represents the view of the majority, and beginning at page 260 his Honour commences a discussion of the approach to that point in time which was prior to the decision of this Court in SAAP to analysing the reasons of the Tribunal for the purposes of applying section 424A(1).

In paragraph 208 his Honour identifies two aspects from two decisions in a case called Paul and another one called VAF, and his Honour notes that:

1. To identify the reason or part of the reason for the affirmation of the decision requires some “unbundling” of the reason for the affirmation of the decision which is ultimately the relevant lack of satisfaction of the existence of protection obligations.

2. In circumstances where (as is usually the case) the complaint is in the context of a decision of the Tribunal that has been made supported by a set of reasons generally this is to be undertaken by reference to the reasons of the Tribunal in the context in which one finds them.

To the extent that involves a process of unbundling, that is the process I have sought to engage in to this point in time of the analysis of the Tribunal’s reasons.

Then his Honour sets out from pages 260 over to 261 various quotes from those decisions, which I do not need to take your Honour through, except for the one on page 261 at paragraph 212 where Justices Finn and Stone in the decision in VAF refer to this process of unbundling and in the italicised passage identified an approach which involved isolating whether something was:

integral to the reasoning process rejecting the appellant’s claim as to require as a matter of fairness that the appellant be told that information . . . and why it was relevant to the review –

Then the next paragraph, his Honour identifies that these cases appear to involve some process of ascertaining the importance or significance of the reasoning by reference to matters of fairness. Then his Honour refers to a decision of this Court in SAAP and in paragraph 215 refines the test in Paul and VAF to say, in effect, you do not identify anything essential or peripheral or apply matters of fairness. You simply ask:

whether the information in question was a part (that is any part) of the reason for affirming the decision.

Then in paragraph 216 his Honour makes it clear that the test in VAF is not completely thrown away because his Honour notes:

One always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations. Merely because something is contained in the test of the reasons of the Tribunal which involves “information” does not conclude the question whether it was - - -

GUMMOW J: We can all read along with you, Mr Beech-Jones.

MR BEECH-JONES: I am sorry.

GUMMOW J: Where in these Federal Court decisions is there any treatment of a submission that 424A(1) is or is not talking about section 54 and section 55 material which has found its way through 218, in other words, that it is limited to material generated for the conduct of a review.

MR BEECH-JONES: That, your Honour, is to be found in the decision of Justice Moore from pages 219 to 222. That is an imprecise answer to your Honour’s question. That is his Honour’s reasons why he followed the earlier decision of Al Shamry which decided the construction of (3)(b).

GUMMOW J: I know. Either case will do.

MR BEECH-JONES: But it does not address the manner in the way your Honour was asking questions of me, that is by reference to section 54 and section 55 - - -

GUMMOW J: Is it addressed in Al Shamry at all?

MR BEECH-JONES: My recollection is it is not, your Honour. My junior is telling me that it is not as well. Justice Weinberg was in agreement with Justice Moore on this and if I could just give your Honour the paragraph number, paragraphs 94 to 108. Justice Allsop agreed with Justice Moore.

CALLINAN J: Mr Beech-Jones, what do you say if there are three reasons given, each of which is discrete, for a decision? One of them is absolutely valid. There is no way of attacking it at all. But the other two fail to meet 424A(1) test, if you like. What happens then? Are not the invalid decisions forming – do they not form part of the reason?

MR BEECH-JONES: Your Honour, we submit that in that circumstance it means that one does not necessarily conclude the decision is invalid, and we also submit that if that is wrong, then as a matter of discretion that is a basis upon which the Court can refuse relief. The discretionary basis is what Justice Allsop articulated at page 265 - - -

CALLINAN J: Why is there a discretion if there has been non-compliance with 424A(1)?

MR BEECH-JONES: The basis that his Honour identified is to, in effect, say that by analogy with those cases involving breaches of procedural fairness, where the statute nevertheless compels the result that - this is a case where the statute nevertheless compels this result for this reason; the statute compels the refusal of an application for a protection visa and an application for review if you do not satisfy the person that there is a Convention nexus. Even if there was, in this case, a breach of section 424A(1) in determining whether you had a well-founded fear, the statute nevertheless requires that your application be refused.

CALLINAN J: That is like finding a reason outside the language of the statute. I must say, at first blush, with all due respect, I do not find that very persuasive, assuming a breach of 424A(1).

MR BEECH-JONES: I accept, your Honour, that in articulating that way there is - - -

CALLINAN J: It is part of the reason, is it not?

MR BEECH-JONES: There is a danger that I am equating a contravention of section 424A(1) with a breach of procedural fairness and that is not something I can do lightly.

CALLINAN J: It says, “or a part of the reason”. How can you say that something that is expressed as a reason is not part of the reason?

MR BEECH-JONES: Your Honour, the argument takes as its premise when there are three reasons that there is a contravention of section 424A, but then is addressed to the consequences of that and it is different to an argument that was run in Aala and the type of argument in a judicial context in Stead where they say, “Look, even if you have been given the opportunity, on that matter you were not believed – no one would have believed you”, which, of necessity, involves an assessment of the merits. This is a qualitative – this is a significantly different submission to that because it is really dealing with a completely different part of the application.

CALLINAN J: I do not understand where the discretion comes from because Division 4 contains the mandatory requirements for the conduct of the review and if one of the mandatory requirements has not been carried out, where do you get the discretion from?

MR BEECH-JONES: Your Honour, I can only put it in the way I have articulated that sometimes, for example, one can have a jurisdictional error.

CALLINAN J: I know all of that, but we are not in jurisdictional error here. We are in the statute.

GLEESON CJ: I thought your argument was that the discretion comes from the nature of the remedy which is prohibition.

MR BEECH-JONES: It is, yes.

GLEESON CJ: It is because the ultimate sanction for this is a discretionary remedy, the same as the discretion would apply if there had been gross delay in complaining about this.

MR BEECH-JONES: Your Honour, to the extent I am addressing discretion, yes, but we have also, as I have said, articulated on the basis of validity in our - - -

GLEESON CJ: Validity of what?

MR BEECH-JONES: Whether the decision is invalid, because when one is addressing discretion, one is already doing it on the basis that the decision is found to be in some way invalid as a matter of discretion.

GLEESON CJ: The word “invalid” might itself require some unbundling.

MR BEECH-JONES: It did or in this case - - -

GLEESON CJ: There is a contravention of a statute, that is the assumption and then the next question is, what follows from that? The applicant for relief is saying, what follows from that is an order for prohibition, stop people removing me from Australia.

MR BEECH-JONES: The response in that circumstance of the Minister is to say both because the relevant contravention had no possible relationship with the decision, no causal or contributing aspect to the decision that was ultimately made - - -

CALLINAN J: Mr Beech-Jones, the remedy here is not just prohibition. The remedy here is a statutory review under the Migration Act.

MR BEECH-JONES: I am sorry, your Honour, I thought it was about the review - - -

CALLINAN J: The remedy is not prohibition. I mean, there may be a remedy in prohibition as well, but what the Federal Magistrate has to consider is whether there has been an error of law by the Tribunal and if there has, then the Tribunal’s decision is set aside. It may be very like certiorari or one of the other prohibitive remedies, but it is actually a statutory remedy, is it not? It is a remedy given by this Act.

MR BEECH-JONES: Your Honour, it is a remedy that is on all fours with section 39B of the Judiciary Act for the Federal Court. It is a remedy of certiorari and of prohibition, not like the former - - -

CALLINAN J: But it is not in terms, is it? It may be what it is in substance and effect, but in terms it is something you can do and you get under the Act. It is hedged around with all sorts of rules and provisions in the Act itself. I mean Division 4 itself contains rules in relation to the remedy.

MR BEECH-JONES: Your Honour, the jurisdiction of the Federal Magistrates Court was not a jurisdiction of the kind that previously existed under the kind conferred in Abebe whereby the Act conferred - set out the grounds and set out the power to grant relief. It was a review in the form of the issue of constitutional writs.

KIRBY J: Is that right? On 122 the order sought from the Federal Court at least was the judgment be set aside.

GLEESON CJ: That was the appeal from the magistrate. The application for relief was the application to Federal Magistrate Raphael.

MR BEECH-JONES: That sought an application that the decision be set aside, but in terms that could only really be an application – and that is at the bottom of page 8.

GUMMOW J: What was the source of federal jurisdiction of the Federal Magistrate?

MR BEECH-JONES: Section 483A, your Honour.

GUMMOW J: And of the Federal Court?

MR BEECH-JONES: Section 39B of the Judiciary Act, your Honour.

CALLINAN J: Is that the only jurisdiction for the Federal Court, 39B?

MR BEECH-JONES: It is, your Honour.

KIRBY J: What is that section again?

MR BEECH-JONES: Section 39B of the Judiciary Act.

GLEESON CJ: What would the position have been if the present appellants had made their application to Federal Magistrate Raphael 10 years after the date of the decision of the Tribunal and had no explanation of the delay?

MR BEECH-JONES: Then either at an interlocutory stage or in a final stage the Minister would have sought the dismissal of the application on the basis of delay.

GLEESON CJ: But what would have been the power to dismiss it on that basis? What would have been the source of the Federal Magistrate’s power to dismiss the application on the basis of delay?

MR BEECH-JONES: The discretionary nature of the relief sought which is conferred by section 39B. We do put an argument about discretion, your Honour, but the one outstanding question about discretion is, of course, that if the matter is dismissed on discretionary grounds, there is still scope for argument perhaps at a later stage, either with prohibition, if it is sought to be removed, but the decisions that have been made to this point are nevertheless void. Again, of course, that could again be met with an argument about delay - you did not do anything until 10 years later - but in terms of the difficulties it would create just dealing with it on discretion is that the voidness of the decision may still be, as it were, a question lurking around.

Now, Justice Allsop dealt with it on discretionary grounds and that is the way in which, as I understand it, this hypothesis that there are two reasons, one of which is unaffected by the contravention, has been addressed.

GLEESON CJ: There is a line of authority, and I am trying to remember the context in which I have looked at it, but when you are considering in the case of an appellate jurisdiction whether there is material error on the part of the primary decision-maker, questions can often arise where there are a number of reasons given for decision, one of which is unimpeachable and you then may have to ask in some circumstances whether the error that has been identified in other reasons is material and whether the decision ought to be overturned. Is there anything on the authorities on that that are relevant to the problem we are now looking at?

MR BEECH-JONES: I think, your Honour, there is an obvious analogy, but perhaps if I could answer by giving a closer analogy in an administrative law context because one difference in a judicial context is that a judicial order is valid unless and until set aside and the appellate court is re-exercising the powers below, whereas in an administrative context, administrative decisions do not have that force and there is no, in effect, rehearing of any kind on judicial review.

In Bond in dealing with the error of law ground on the judicial review context, Justice Mason has referred to the need for the – and that is by reference to the terms of the statute that it affected the decision, that is, that it contributed or can be seen in some way that it might have affected the outcome of the decision. If I can just give your Honours the authority. We set that out in our written submissions in paragraph 32.

KIRBY J: That tends to fit in with what Justice McHugh said in SAAP, which was something you were touching on lightly a few minutes ago, that if in fact the error is or is in the nature of a natural justice error that would in our theory undermine the validity of the decision that ordinarily you would give relief and hence his Honour was resistant to the so-called distinction between trivial breaches and non-trivial breaches.

MR BEECH-JONES: Yes, and your Honour, we do not seek to suggest to re-agitate a question of trivial and non-trivial because again they are arising in relation to a context where, for example, someone’s credit has been destroyed on nine grounds but there was a tenth ground that was not put to them that was relied on. This is cutting in at a different level entirely.

Your Honours, at page 265 is Justice Allsop’s analysis which refers to your Honours Justices Gummow and Gaudron’s analysis in Aala which I will need to take your Honours to briefly. At paragraph 231, his Honour refers to the decision of Justice McHugh in SAAP and ascertains three matters from SAAP but including the discussion in Aala and the third matter is said to be:

Thirdly, if it can be shows that there is a basis, otherwise unimpeached, upon which the decision was reached, unaffected by the failure to accord procedural fairness or to comply with the required statutory procedure, relief can be withheld.

The next paragraph explains why his Honour considers that to be consistent with the discussion in Aala noting that in Aala at paragraph 58, your Honours Justices Gummow and Gaudron had identified three particular examples where relief would not be granted for a lack of utility and in paragraph (a) notes:

where the decision-maker was bound by the governing statute to refuse . . .

If it can be shown that there was a basis for the Tribunal’s decision which can be seen to be entirely independent of the failure to follow s 424A, in my view, that is sufficiently analogous to the first of the alternative referred to in [58] of Aala to warrant withholding of relief.

The first example was where the decision-maker was bound by the governing statute to refuse and as I understand what his Honour is saying is, if you have two grounds, one is no well-founded fear and another ground, no Convention nexus, if you have breached section 424A or made an error of procedural fairness in relation to the finding of well-founded fear, but the reviewing court is sufficiently confident – and it is a high threshold to say that nothing that occurred in relation to that in any way affected the second matter, that is no Convention nexus – then one can at least by analogy say that the statute requires the refusal of the application for the visa or the application for review of the delegate’s decision. That is the basis on which his Honour dealt with it by addressing it on discretion grounds.

Could I, at the risk of overstaying my welcome, just take your Honours briefly to Aala because there are some matters I need to take your Honours to. The passage that Justice Allsop was referring to commenced, your Honours, at paragraphs 57 onwards, that is from pages 108 of - - -

GUMMOW J: Just reverting to what the Chief Justice was putting to you, if one just goes to the last statement in the headnote of Aala, 75(v) is replicated in 39B and that was the jurisdiction of the Federal Court. That is given to the Federal Magistrates Court, so what is the debate?

MR BEECH-JONES: There is no doubt that certiorari is discretionary as well.

GUMMOW J: It is not an independent ground. It only attaches if there is something else. It is parasitic, is it not - 75(v)?

MR BEECH-JONES: Indeed. Yes, your Honour, 39B does not confer an express power to grant certiorari either if I can put it that way.

KIRBY J: This was an important decision because before it there had been a lot of very old law which said that in certain circumstances, I think, prohibition was mandatory, but this said the constitutional writs are always discretionary.

MR BEECH-JONES: On a number of bases it also said that one does not look at these necessarily with a viewpoint of the history of prerogative writs. They are their own constitutional foundation.

GLEESON CJ: It is very important in practice because we happen to have some clients, if I can use that expression, who keep coming back to us over and over again. Sometimes they raise their section 75(v) arguments on their third round.

MR BEECH-JONES: One can see the importance of being discretionary in those circumstances, your Honour. In paragraph 59, your Honours Justice Gummow and Justice Gaudron noted that the condition – I am sorry. If I could take your Honours to the previous page, at paragraph 56 your Honours set out a quote from Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres where your Honour noted the quote includes that the refusal of the remedy can be:

if no useful result could ensue . . . unless circumstances appear making it just that the remedy should be withheld.”

Then the next paragraph your Honours refer to Lord Denning who referred in the last sentence to not only “disgraceful” conduct by the applicant for review but whether the person has “suffered no injustice”. Then your Honours elaborated upon that and in paragraph 58 your Honours noted three examples of circumstances in which the discretion, at least in a procedural fairness case, could be refused, the first including where:

the decision-maker was bound by the governing statute to refuse.

Then in the next paragraph your Honours noted that there may be a difference, or there is a difference, where it is procedural fairness as opposed to excess of power or jurisdiction and there is perhaps an unresolved issue about where we sit with 424A because certainly at least in the Federal Court the continuing analogy is between it and procedural fairness when, in one sense, it is really a statutory precondition to the exercise of the power.

In our respectful submission, the result is the same, that if one could, without in any way trespassing into the merits, be relevantly satisfied that the decision, the exercise of the power to refuse or to affirm the delegate’s decision was not affected by the contravention - - -

GLEESON CJ: Section 422B of the Act rather tends to explain why some judges have seen an analogy between our problem and problems of natural justice.

MR BEECH-JONES: Your Honour, I would not for a minute suggest that it is not an analogy. In fact, 424A - - -

GUMMOW J: Wait a minute. Section 422B only went in in 2002, did it not?

MR BEECH-JONES: Yes, your Honour. It is applicable to this case, yes.

GUMMOW J: But not to SAAP.

MR BEECH-JONES: No, your Honour, and 424A in some respects extends the requirements of procedural fairness and, in other respects, the division may cut it back, but certainly procedural fairness does not require that any particular matter to be relied on is to be brought to someone’s attention in writing.

GLEESON CJ: But I am now sure which of two arguments you are plumping for, and maybe your argument is alternative, but one possible point of view is that on its true construction, in a case of the kind you are postulating – that is, one unimpeachable ground for decision unaffected by any contravention of 424A – contravention of 424A does not spell invalidity of the decision. Another possible point of view is that in a case of the kind you are postulating, the Federal Magistrate in the exercise of the Federal Magistrate’s discretion may refuse the relief sought if he or she is satisfied that the failure to comply with 424A had no possible bearing on the unimpeachable ground of decision.

MR BEECH-JONES: Your Honour, if I could be frank, we are trying to have a bet each way because we are seeking to run both validity - - -

GLEESON CJ: Now, which of those arguments is the subject of your notice of contention, or is it both of them?

MR BEECH-JONES: The notice of contention is the second, for this reason. We took the view that invalidity is something my friend has to demonstrate because he does not have a finding of a contravention of 424A. Therefore, he does not have a finding of an invalidity of the decision, so it is something that arises on his case, not on our case. On discretion the difficulty arose is that we, I think, wrongly read the decision, as did my friends because they sought special leave on this basis. We do not have a finding on discretion and we would have to raise that as an answer if he gets through the first step of contravention and the second step of validity.

GLEESON CJ: Does that mean that there are three possible issues? One is whether there was a contravention of 424A at all, your argument being that on the proper interpretation of the Tribunal’s reasons the inconsistency was not the reason or part of the reason for affirming the decision.

MR BEECH-JONES: Yes, your Honour.

GLEESON CJ: The second issue is that raised by an argument that, assuming there had been a contravention of 424A, it was a contravention that did not affect an unimpeachable reason for the decision and therefore the decision was not invalid.

MR BEECH-JONES: Yes, your Honour.

GLEESON CJ: The third argument is that, assuming the premise in proposition number two, the court should in the exercise of its discretion refuse the relief.

MR BEECH-JONES: Yes, your Honour.

GLEESON CJ: Which court?

MR BEECH-JONES: This Court and I think in our submissions we accept we did not argue it on discretionary grounds below. We argued it on the basis of no contravention, this all occurring pre-SZEEU and, therefore, in our submission, we accept that we have to, if it is something that could have been met by evidence, then the argument cannot be sustained, but we submit it is not a matter that could have been met by evidence. The only point raised in my friend’s submissions of an evidentiary kind that - - -

GUMMOW J: By evidence in the Magistrates Court?

MR BEECH-JONES: Indeed, yes, your Honour. The only thing my friend says is, well, we could have put evidence to show that if it had gone back we might have won because you could have taken a different view of the facts. Now, we may be able to accept the premise, but we do not accept that that is an answer to our argument, if it is accepted, that is, if that goes to discretion we submit saying, “Well, I could have got a better result if I got another tribunal to hear it”, is no answer to a suggestion to the exercise of a discretion on this basis.

GLEESON CJ: Is that a convenient time, Mr Beech-Jones?

MR BEECH-JONES: It is, your Honour. I have a couple of matters to go. I have had bits of paper flying and I want to get some sensible instructions about whether I have to make an application about a fourth point.

GLEESON CJ: We will adjourn now and we will resume at 2.15.

AT 1.248 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

GLEESON CJ: Yes, Mr Beech-Jones.

MR BEECH-JONES: Your Honours, can I just continue with the decision in Aala (2000) 204 CLR. There are just two parts of that I need to take your Honours to.

KIRBY J: What is the principle you are relying on this for?

MR BEECH-JONES: The principle is this: firstly, to highlight the potential consequences of a difference between refusing an application on the basis that a decision is not void as opposed to refusing an application on discretionary grounds, that is, they can have different consequences. I should perhaps give your Honours a paragraph reference, paragraph 53 of your Honours Justice Gummow and Justice Gaudron’s judgment where it is refused on discretionary grounds. It does not mean that there is any final determination of the validity of the decision and, for example, questions about wrongful imprisonment or perhaps further applications may still be left open as at least theoretical possibilities if relief is only refused on discretionary grounds.

The second passage I seek to take your Honours to is paragraph 104 in Justice McHugh’s judgment dealing with a breach of the rules of natural justice and its effect on the making of a decision. Although his Honour was in dissent in the result, we submit these principles are not capable of being disputed. In paragraph 104 in the second sentence he says:

The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice.

His Honour’s paragraph reads as though that is going to the validity of the decision and then, in the second half of the paragraph, his Honour says:

Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome -

In our respectful submission, this is by analogy in the first half of his Honour’s analysis, not the second. This is not a case where we are saying you could be confident it could not have affected the outcome in the sense discussed in Aala, that is, your credit was so destroyed it would not have made any difference if you had had a further submission. This is really in the first half, that is, the decision turned on an issue different from that which gave rise not to the breach of natural justice but to the contravention of section 424A.

Your Honour, there are just a couple of further points. I need to say something about the decision in SAAP which involved the contravention of section 424A and in which the majority and your Honour Justice Gummow in dissent found that even if it had - - -

GUMMOW J: Not just me.

MR BEECH-JONES: I was about to say, even though your Honour was in dissent your Honour found that if there had been a contravention, there would have been jurisdictional error. The things we say about SAAP is that in SAAP there was the opportunity to comment had been given orally but not in writing and there was overall a contention on behalf of the Minister that it did not make any difference because they had the opportunity. The suggestion to say that that was immaterial rested upon a premise that oral hearing was good enough. That entire argument involved a second guessing of the legislative mandate that it had to be in writing, so that really, in one sense, it was no answer to the contravention to say you got the same opportunity orally because the section mandated you get it in writing.

The context of this, with respect, is entirely different to SAAP because this argument which has been put forward on a basis or a hypothesis of two separate reasons does not involve any second guessing of the legislative mandate. It is not saying if we are giving the opportunity to you in writing, then it would not have made any difference to the finding about whether there was an outstanding charge. It is saying that the determination that you did not satisfy the visa criteria had absolutely no relation to the contravention of section 424A. So that at least in the context of the case there is a significant difference between this case and the decision in SAAP.

Your Honour Justice Hayne asked me a question about the material in the Act and the regulations dealing with information. I could provide to your Honour a short written note if that is easier. It will not be in any way contentious.

HAYNE J: Thank you.

MR BEECH-JONES: Can I just say something briefly about the notice of contention. The notice of contention seeks to raise the discretionary argument that we put forward. The contention arises if your Honours find that there were two reasons for the Tribunal’s decision properly analysed and one of them involved the contravention of section 424A and one was, as it were, unimpeached or totally unaffected by the contravention. That is the basis on which the notice of contention is raised.

In terms of its lateness, the discretionary argument on that hypothesis that there were two reasons was the very reason or basis upon which the appellant sought special leave and it is the assumption behind ground 4 of their notice of appeal. What happened, I think, is when everybody wrote their submissions they realised that in fact there had not been any discretionary consideration below and so instead of being a matter the appellants had to raise, it was a matter that arose from my side of the Bar table.

KIRBY J: Could I ask you, you say that the notice of contention issue would arise if we concluded that there were two reasons in the Tribunal’s findings and that one of them was unimpeachable?

MR BEECH-JONES: Yes.

KIRBY J: But given that the relief being sought in the Federal Court, from which the appeal comes to us, is under section 39B and given that that is equivalent to the constitutional writs and given that this Court in Aala has said that the constitutional writs are all of them of their character discretionary, would one actually have to reach a firm conclusion on the way the matter was reasoned and argued in the Tribunal? Is it not available to the Court to say, “Well, we really are not going to get into those issues in this case because they are not essential to determination because upon any view the conclusion that was reached at the end of the Tribunal’s reasons is a conclusion that was available to us and is a compelling conclusion in the circumstances of the case and is therefore sufficient to deny the discretionary relief that is being sought”?

MR BEECH-JONES: Your Honour, I am not sure if this is an answer to the question. Our primary point is that there was only one reason and the information - - -

KIRBY J: I realise that. I realise that but we do have the - - -

MR BEECH-JONES: In which case none of this arises.

KIRBY J: We do have the unfortunate use of the word “residual” and therefore the possibility that there were two issues, or at least the Tribunal considered that there were or might have been two issues before them, but speaking for myself, at the moment at least, the way the Tribunal ultimately dealt with the issue is really compelling in the facts as found in the circumstances of this case, especially after the death of the daughter. Whatever religious disagreements might have existed before the death of the daughter, that had severed that link with them and the only reason one might think for any continued animus on the part of the former in-laws was that they were blaming him either legally or emotionally for the death by suicide of their daughter, and that has nothing to do with the daughter’s religion or their religion. It is just a personal conflict within the family.

MR BEECH-JONES: Your Honour, it had nothing to do with the finding about the outstanding charge because that reasoning - - -

KIRBY J: Most importantly nothing to do about why he would have a fear of going back to India. His fear, if any, is about his in-laws, not about the religion.

MR BEECH-JONES: Your Honour, I can see the force of what your Honour says. That is in fact the way the Tribunal reasoned it and that is how we put it. We do not necessarily ask your Honours to say that no other tribunal could come to a different view if it looked at the case. I mean, it would be very difficult to see any tribunal coming to a different view on those facts but - - -

CALLINAN J: There must be disagreements about religion in many, many cases in many places in the world. There are very strong disagreements about inter-religious marriage in Australia on occasions. Does the Convention require something in the nature of the enlisting of some powerful religious group to support the persecution or to carry it out? It cannot surely just be a very strong disagreement because one’s daughter is marrying somebody from a different denomination.

MR BEECH-JONES: No, your Honour, but that would raise a question of state protection and in Australia you would no doubt reason – we would hope that an overseas observer would reason that although nothing can be guaranteed, the level of state protection against private religious feuds is sufficiently high, that there could never – the Convention - - -

CALLINAN J: I am at a stage before that. Does there need to be some indication of support by somebody of a powerful or effective religious group in order to carry out the persecution? Take here. Is it enough that the parents of the late former wife may have gone to the police and fabricated some case against the first appellant? That surely cannot be enough. There must be some invocation of some religious group or body and, in addition to that, some sort of failure by the state to prevent that.

MR BEECH-JONES: Ordinarily you would expect that, your Honour - - -

CALLINAN J: I mean, that is what I am suggesting. Is that right? I do not know whether it is right. Is that right?

MR BEECH-JONES: To come back to the Convention elements, I should say this; the appellants’ case was that they were powerful because they were able to motivate the local police to bring these various charges.

CALLINAN J: But for a religious reason?

MR BEECH-JONES: Not that the police acted for a religious reason.

CALLINAN J: No.

MR BEECH-JONES: The police acted because they were powerful.

GLEESON CJ: “They” being the in-laws?

MR BEECH-JONES: “They” being the in-laws. That was the appellants’ case. His only - - -

CALLINAN J: The in-laws’ motivation may have been largely or wholly religious, but they are not the ones doing the persecuting. The police are doing the persecuting, on the appellants’ case, and they might be doing it for all sorts of reasons which we do not know. The motivation of the in-laws may not be the motivation for the response by the police to the complaints.

MR BEECH-JONES: I suppose I can answer it this way, your Honour. The motivation of the in-laws for a Convention reason may not have been enough to satisfy the Convention, but in this case there was a complete rejection of any Convention motivation by them or by the police. So that it was left with no one with anything even close to a Convention nexus.

CALLINAN J: Yes, but I am putting the appellants’ case on a different base, on perhaps the highest possible basis, and it seems to me, so far as religion is concerned, there are difficulties in the way of their being able to say that it is persecution for a religious reason.

MR BEECH-JONES: Yes, your Honour.

GUMMOW J: What do you say about ground 1? The statutory declaration in ground 1 is 28 October, is it not? The notice of contention is the 20th? Are we talking about the one on 28 October 2002?

CALLINAN J: Yes, I was going to ask you about that.

MR BEECH-JONES: Your Honour, I think your Honours may be dealing with a - - -

CALLINAN J: I thought you had abandoned – I thought you had made it quite clear that ground 1 in the second notice in the contention of 28 February was not being pressed. I thought your answer to the question from me made that clear.

MR BEECH-JONES: Your Honour, can I just answer it in this way? I did not realise your Honours had the draft of that notice of contention. That reflected an interim - - -

GUMMOW J: It happens to be signed.

MR BEECH-JONES: I am not instructed and I do not seek to file that one, that is, I adhere to the position I told his Honour Justice Callinan and it is simply the notice of contention that was provided with our submissions and is attached to our summons which raises ground 2 for your Honours. I am sorry, I did not realise your Honours had that and that is simply the discretionary matter.

CALLINAN J: So we just disregard entirely the one of 28 February?

MR BEECH-JONES: If I could apologise and ask your Honours’ associates to throw it away, that is the notice of contention that my friend was adverting to at the commencement of his submissions. That matter is the matter, we submit, that was, in fact, what they sought special leave and it arises if there are two reasons. Our primary submission is there was only one.

GLEESON CJ: We do not actually have as part of the appeal book the original applications, the original written argument in support of the application for special leave to appeal. I understand you to rely on that as an indication that far from being surprised by this argument, the appellant actually anticipated it in the special leave application. If you want to rely on that you had better get before us the material on the special leave application that you are relying on.

MR BEECH-JONES: Yes, your Honour. There was an affidavit filed in support of the summons seeking leave to extend time and I should seek leave to read that affidavit.

GLEESON CJ: Yes, that is the affidavit of?

MR BEECH-JONES: The affidavit of Ziad Chami sworn 26 February 2007 and there are a series of exhibits. The exhibits are
paginated and page 2 of the exhibits is the summary of argument. At the top of page 3 your Honours will see that the third question raised was the question of when the court - it was also raised in oral argument and I can take your Honours to that if necessary but that is the mirror of the point we wish to raise by way of notice of contention. Ground 4 of my friend’s notice of appeal -

GLEESON CJ: Draft notice of appeal.

MR BEECH-JONES: The final notice, I am sorry, your Honour, page 137, appears to reflect the proposition that was being argued in support of special leave that it was wrong of his Honour to decline relief as a matter of discretion. Of course, the true position is his Honour did not do so but, we respectfully submit that the point we are raising is really a point they were seeking to agitate and initially raised and then, when the decisions below were analysed, it emerged that it was really a point we had to rely on and not them.

GLEESON CJ: Yes.

MR BEECH-JONES: Your Honour, those are the matters I wish to say in support of the respondents.

GLEESON CJ: Thank you, Mr Beech-Jones. Yes, Mr Reynolds.

MR REYNOLDS: Your Honours, can I address the question of discretion. I am not going to deal with breach. I have, I submit, already dealt with it. On the second argument of invalidity I gave your Honours a reference to the decision in SAAP. I gave references to passages from three Justices who held that a decision in breach of section 424A was invalid and, in my submission, that is the end of the matter on that argument.

On the question of discretion though, I need to deal with that and it may be in a little detail. I am still, I have to say, unclear as to the basis upon which it is contended by way of notice of contention that assuming breach and invalidity, your Honours, in effect, in the exercise of discretion should refuse to grant certiorari.

Can I indicate the argument as I understand that is put against me, characterise it and respond to it and if I am wrong in the characterisation of the notice of contention that is raised against me, I would be very grateful if your Honours could explain to me what alternative notice of contention is being advanced.

Now, can I kill off, or attempt to kill off, one aspect of what my friend said on this issue. He talked about there only being one claim. We respectfully submit that it is not open to construe these reasons otherwise than as being two claims. The two claims are, I submit, as I put them to your Honours in-chief. There is a primary claim and that is referred to at appeal book page 84 at about line 7 that there was a charge in 2001 and that gives rise to harm, namely, imprisonment. The second claim under the heading “Residual Claim’ is an altogether different one, although related in some respects, and it is referred to in the appeal book at page 86, line 26 where the Tribunal member says this:

As I also understand their claims [plural] they contend that Salima’s family have power and could use this power to have false charges laid against them. They also refer to a difference in religion –

So there are two separate ideas at work here in the two claims that my clients are making. One is they are saying, and this is not terribly complicated, with respect, “Well, look, we were charged in 2001. These were false charges. We managed to flee the country. If you send us back to India, then we maintain that there is a risk of harm to us, namely, imprisonment flowing from those charges.” That is the first Convention basis we refer to.

HEYDON J: But what? What, religion, social group, politics?

MR REYNOLDS: Yes. It is religion, primarily and then also social status but I have made some concessions about the latter one. The way they needed to establish their case, they needed to show that there was some religious animus, if I can put it that way, underlying the false charges being levelled against them in 2001 at the behest of Salima’s family. That is the first claim. The residual claim is the one I just mentioned.

If you are going to try and run an argument on discretion where there are two separate claims like this then it must follow that you have to have a knock-out clean blow in respect of both. My learned friend made a concession about this which your Honours will recall him making a moment ago which was that this argument about discretion applies – he said something about if it is two claims. We submit that there is no doubt that there are two claims and therefore my learned friend has to show that there are knock-out blows, in effect, in relation to both of them.

Can I try and demonstrate why there is no clean hit, if I can put it that way, in relation to either of these two cases. The argument, as I understand it, that is put against me on this notice of contention derives from appeal book pages 88 to 89. I understand that this is construed as being a holding that both claims, on the evidence, fail because they do not have a Convention nexus, namely, no religious nexus. In respect of the 2001 charge, this is a finding that it was not laid out of religious animus. In respect of the future fear of false claims, this is a finding that any fear of false claims could not stem from a religious animus.

Now, I put an argument in response to your Honour Justice Kirby before lunch about this, but may I briefly recap that submission? As to that passage being referable to the 2001 charge, that is the primary claim, I submit that one cannot possibly read these passages as referring back to that, and in effect, as a finding that the 2001 charge was not levelled for a religious reason.

I put to your Honours before the luncheon adjournment that that would involve necessarily an absurd reasoning on the part of the Tribunal, because the Tribunal found that no charges were levelled. It is not possible to go back and make an alternative finding that when the charges were levelled they were not levelled for a religious reason. Therefore, you cannot take this passage and use it as a finding in relation to the primary claim, and a clean hit, as it were, to take that claim out.

As to the residual claim – pages 88 to 89 – we agree this does amount to a finding that any risk of future harm from false charges was not for a Convention reason. In other words, if there was going to be any future charge there is a finding here that there is no likelihood of that being for reason of religion.

My learned friend has to show on the basis of that concession that that reasoning was not affected by the breach. I again touched on this before lunch but I again repeat things a little. That reasoning on the rejection of the residual claim, we submit, is affected by the breach and can I put this in a series of propositions conveniently I hope for your Honours.

First, the findings about lack of credibility led to a finding that the 2001 charge was not laid and no findings that the earlier charges were laid. Secondly, therefore there was no consideration by the Tribunal of whether any of these or all of these earlier charges were laid for reason of religion. They just never even considered that because they did not make findings that these earlier charges were made.

The failure to make those findings which emanates from the adverse credibility findings destroys the key building block for the residual claim. Why? Thirdly, it destroys this key building block because the residual claim that there will be future charges laid for religious reasons depends upon those earlier charges having been laid for religious reasons. In other words, like my client said, “Well, we have been charged for religious reasons several times in the past, therefore, when we go back in the future there is a likelihood of that occurring again for religious reasons”.

The result of all of that is that the rejection of the primary claim on the basis it was rejected inevitably has a flow-on effect to the rejection of the residual claim. So reading those two pages, at pages 88 to 89, we submit that there is no doubt (a) that they cannot be referring to the primary claim because it would be absurd, (b) that it does refer to the residual claim, but (c) it is clear that the residual claim is affected by the breach of section 424A.

My learned friend’s difficulties do not end there because, as he was frank enough to acknowledge, on the question of an exercise of discretion his client has to meet a very high threshold. Can I give your Honours some references on that. Can I take your Honours to the decision in Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82. I will just give your Honours some references to, I think, all the Judges in this case. I will start with your Honour the Chief Justice. On page 89, paragraph 4, the fourth line your Honour used in the context of a similar argument this expression or this sentence, “But no one can be sure of that.” In other words, one must be very confident that, relevantly here, that the breach could not possibly have affected the relevant portions of the reasoning.

Justices Gaudron and Gummow at paragraph 80 were to similar effect and even clearer perhaps for present purposes. Paragraph 80 there is a reference to the findings of credit and their Honours say:

However, it can at least be said that this might have deterred the second Tribunal from concluding as it did. It is sufficient that “the denial of natural just deprived [the prosecutor] of the possibility of a successful outcome”.

There is then a reference to the famous judgment in John v Rees which I would ask your Honours to have a look at in due course, if I may. Next, paragraph 104, page 122, halfway down the page, Justice McHugh says:

once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome -

In other words, here let it be assumed there is some doubt about the arguments I have just put to your Honours on discretion. Your Honours could not be confident that the constructions that I am advancing are not open. Your Honour Justice Kirby to like effect at paragraph 131, pages 130 to 131, is perhaps the most apposite passage relevant to the present case. Your Honour said this at the beginning of paragraph 131:

Once the applicable breach is proved, the victim of the breach is ordinarily entitled to relief. It is only where an affirmative conclusion is reached, that compliance with the requirements of procedural fairness “could have made no difference” to the result, that relief will be withheld. This Court has emphasised that such an outcome will be a rarity. It will be “no easy task” to convince a court to adopt it. This will especially be so where, as here, “the issue concerns the acceptance or rejection of the testimony of a witness at the trial”.

That, I interpolate, is this case. Your Honour goes on to say a number of other things in that paragraph which I will leave your Honours to read. Likewise, Justice Callinan in paragraph 211, particularly at pages 154 to 155, at 154 at about point seven of the page your Honour uses the expression:

could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.”

Over the page, again in paragraph 211, at the conclusion:

I cannot say that a different result would not have been reached had the prosecutor not been misled by the second Tribunal.

So on discretion I submit it is a most difficult task. I submit that I have, on any view, put forward a strongly arguable construction of these reasons in relation to this reasoning on pages 88 to 89 in respect of both the primary and the residual claims.

GLEESON CJ: Mr Reynolds, could you go to page 57 in the reasoning of the delegate? The delegate seems to have been prepared to accept, or at least willing to deal with the matter on the basis of the claims made by your clients, that in December 2001 your male client was the subject of some kind of trumped-up charge of criminal conduct in relation to the death of his former wife. Then the delegate said - - -

MR REYNOLDS: This is line? I am sorry.

GLEESON CJ: You see line 22 on page 57?

MR REYNOLDS: Yes.

GLEESON CJ: He just recites the claim and certainly without saying he rejects that claim, says all of these problems that the applicant is having with the authorities which form the foundation of his claim of future fear of persecution, which is what we are concerned with, arise not from religious reasons but because of a personal and longstanding conflict with his ex-wife’s family over their relationship.

Now, when the Tribunal came to deal with the matter, the Tribunal member considered in much more detail the claims made by your client and was not willing to accept that there was, at the time your client left India, an outstanding murder or other charge relating to the wife’s death. But are we entitled to read what appears on pages 86 and 87 in the Tribunal’s reasons against the background of the decision that the Tribunal was reviewing?

MR REYNOLDS: I would submit it is a matter of construing the Tribunal’s reasons as self-contained, unless there is an incorporation by reference, your Honour.

GLEESON CJ: Because the way Federal Magistrate Raphael and Justice Madgwick understood the Tribunal’s reasons amounted, in substance, to the way the delegate’s reasons proceeded.

MR REYNOLDS: Your Honour, I think one thing that both sides are agreed on in this case is that it is not altogether clear what the reasoning of Federal Magistrate Raphael was nor, with respect, the reasoning in the Full Court on these issues and both sides have made concessions about that in the written submissions. I submit, with respect, that it is very difficult, again with respect, to follow exactly what has happened either in the Full Court or before Federal Magistrate Raphael. Certainly, it is not clear enough to me that I would prepared to make a concession of the kind your Honour invites me to do.

GLEESON CJ: No, I was not inviting you to make any concession at all. I was just inviting you to comment, if you wished to make a comment, upon the suggestion that is put against you by your opponent, and I think by Federal Magistrate Raphael and Justice Madgwick, that this reference to residual claim on page 86 was intended by the Tribunal simply to refer to the fact that even after the Tribunal had rejected the claim that there was an outstanding charge against your client, the first appellant, when he left India, that was not enough to dispose of his case.

MR REYNOLDS: No, because he had a second way of putting it.

GLEESON CJ: No, because underlying his whole case of which the matter of the outstanding charge was only one particular, was his proposition about the harm that was intended towards him by his in-laws, which coupled with their power or assumed power over the police, amounted to persecution within the meaning of the Convention. These cases are all about what is going to happen in the future. What has happened in the past is simply evidence of why you fear what is going to happen in the future.

MR REYNOLDS: Quite.

GLEESON CJ: Why should not the reasons of the Tribunal be read as meaning not that the residual claim is, as it were, claim No 2, but that the residual claim is the underlying claim of fear of future harm which is not disposed of by rejecting the evidence that he left India with outstanding charges against him?

MR REYNOLDS: Can I respond to that in two ways? First of all, we say that there is a clear demarcation between these two ideas, that is, harm flying from a presently existing charge, which is therefore not as speculative, and secondly, the harm flying from future charges. They are logically discrete and we say that when you look at the Tribunal’s reasons you can track that through, that there is a separate reasoning process.

This is the point I tried to make earlier on, perhaps not as neatly as I could have, that if this is, as it were, one whole case rather than two, it does not actually make it better for the Minister, it makes it worse, because if you read all this reasoning together you simply get back to the same point that I was making about the second claim and that is there is this knock-on effect from the adverse findings of credibility to that eliminating the basis evidentially for suggesting the likelihood of future harm based on religion.

So if you view it, as it were, as just one omnibus claim, you still have this problem of the credibility findings inevitably affecting every aspect of that case because once one decides that there is no decision that there were earlier charges laid, and, therefore, no suggestion of them having been laid for religious reasons, any cases to the future become much more difficult because there is no past conduct, no similar facts, as it were, from which the Court can infer that these things are likely to happen in the future.

That is why this finding on credibility necessarily permeates, we submit, every aspect of this reasoning because, not only for the reasons that your Honours have said in these cases I referred to, namely, it is very difficult to see exactly what an adverse effect on the reasoning, an adverse finding of credit has, there is not only that but when one looks at the way these cases are constructed, it is impossible to carve out a clean hit argument which could not possibly in any way have been affected by this breach.

GLEESON CJ: What if the Tribunal’s reasoning amounted to this: I find the suggestion that this man left India with murder charges hanging over his head highly improbable, but even if that were true, which seems to be what the delegate said, even if that were true it does not justify a conclusion that what he fears upon his return to India is persecution for a Convention reason because he is the victim of a malicious prosecution, not based on religion but based on his in-laws’ objection to his relationship with their daughter.

MR REYNOLDS: Your Honour, I submit that one cannot read these reasons in that way. There is a base finding that this earlier charge was not levelled. There is no suggestion in the reasons along these lines, and assuming that those charges were in fact levelled, and the second difficulty in construing these reasons in that way is that it is very difficult to say, (1) “I find the charges were never levelled”, (2) “I find, assuming they were, they were filed for a reason other than a Convention reason”. It is a very difficult reasoning process and it is not, with respect, manifest in these reasons.

What is more, all I have to show when one looks at the question of confidence – those references in Aala I took your Honours to – is that there is a reasonable basis in the argument that I am putting to your Honour. If there is, then your Honour cannot be confident that there is a clean reasoning process manifest here in the Tribunal’s reasoning in order to down my clients on the issue of discretion. So that is why, as I say, it is a very difficult task, I submit, the Minister essays on this issue of discretion.

GLEESON CJ: Discretion is one way the Minister puts the case on the assumption, which of course, you challenge that there is an impeachable reason for upholding the delegate’s decision - - -

MR REYNOLDS: Unaffected by the breach?

GLEESON CJ: Yes, that is what I meant by unimpeachable, but the alternative way the Minister puts the case is to say, on the construction of the statute, if that premise is accepted there is not invalidity. What is your argument about that?

MR REYNOLDS: I put to your Honours before that there is a decision in this Court called SAAP and gave your Honours references to three passages and I said it was authority for the proposition that once there is a breach of section 424A then invalidity follows. So that, as I submitted at the beginning of my reply, is the end of that argument. The Minister has not challenged SAAP or the decision of the Full Federal Court in SZEEU, so that will not work either.

GLEESON CJ: That would apply in a case where an applicant, in the material that he should have been informed about but was not, had actually made an admission that was inconsistent with an entitlement to Convention protection.

MR REYNOLDS: He has made an admission. I think your Honours were talking about something to do with admissions yesterday.

GLEESON CJ: I do not mean admission of law, of course.

MR REYNOLDS: No. Can I make this concession, that if – and I think this, with respect, is the point that your Honour the Chief Justice is getting at – take this example. If the section about protective visas said, “No Indian national can obtain a protective visa” and there was no issue in this case that my clients were Indian nationals, indeed they said so, and I think this is what your Honour is getting at, in their documentation. If there were no doubt about that fact and no doubt that as a matter of law it would follow that protective visas could not have been granted, then that is an example of a clear hit point of law based upon an undisputed fact which would enable certiorari to be exercised against my clients, and I concede that, but I also submit that that is nowhere near this case.

GLEESON CJ: I understand that, but you would say that on a discretionary basis?

MR REYNOLDS: Yes.

GLEESON CJ: All right.

MR REYNOLDS: If your Honours please, those are my submissions.

GLEESON CJ: Thank you, Mr Reynolds. We will reserve our decision in this matter and we will adjourn until 10.00 am tomorrow.

AT 3.07 PM THE MATTER WAS ADJOURNED