|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Australia Transcripts |
Last Updated: 9 July 2009
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S120 of 2009
B e t w e e n -
APPELLANT M70 OF 2006
Plaintiff
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Defendant
MR SEAN LEYDEN
Second Defendant
Application for an order to show cause
BELL J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON WEDNESDAY, 8 JULY 2009, AT 9.35 AM
Copyright in the High Court of Australia
MR S.E.J. PRINCE: Thank you, your Honour, I continue my appearance for the plaintiff. (instructed by the plaintiff)
MR J.A.C POTTS: May it please your Honour, I continue to appear for the first defendant. (instructed by Clayton Utz)
HER HONOUR: Yes, Mr Prince.
MR PRINCE: Thank you, your Honour. Your Honour has received some written submissions from the plaintiff - - -
HER HONOUR: I have.
MR PRINCE: - - -which were filed on 2 July 2009. I do not know if your Honour has had an opportunity to review those.
HER HONOUR: I have had an opportunity to read those submissions. May I just raise one matter with you?
MR PRINCE: Yes, your Honour.
HER HONOUR: You summarise in the opening section of the submissions the evidence that has been read thus far in the proceedings, including in paragraph 2(c) a reference to Mr Pistol’s affidavit affirmed on 5 June 2009 mistakenly dated 1 June 2009.
MR PRINCE: Yes, your Honour
HER HONOUR: I am having some difficulty turning that affidavit up.
MR PRINCE: It is an affidavit which is 42 paragraphs long. My friend says he does not think I read it. I had thought I had. It has the new information and some of the detail. If your Honour does not have a copy - - -
HER HONOUR: I do not, Mr Prince.
MR PRINCE: I will see if a spare copy can be located, your Honour. Would your Honour just give me a moment?
HER HONOUR: Yes.
MR PRINCE: Can I hand up to your Honour a copy of that affidavit just to put it beyond any doubt and assuming my friend is right and I have not read it – I am sorry, your Honour.
HER HONOUR: It is just a question of establishing where we are at, Mr Prince. The assertion in the written submissions is that the affidavit affirmed on 5 June 2009 is in evidence. It does not form part of the court file. My own recollection is that it is not in evidence. I understand that is the Minister’s contention.
MR PRINCE: Yes.
HER HONOUR: Do I understand you now read the affidavit of Mr Pistol affirmed on 5 June 2009?
MR PRINCE: Yes, your Honour. My recollection must be wrong.
HER HONOUR: All right. Well, now, is there any objection to any part of the affidavit, Mr Potts?
MR POTTS: No, your Honour.
HER HONOUR: Yes, very well. Just bear with me, Mr Prince, I will read it.
MR PRINCE: Yes, your Honour.
HER HONOUR: Yes.
MR PRINCE: Thank you, your Honour.
HER HONOUR: Now, might I just raise another matter arising out of paragraph 2 of the written submissions?
MR PRINCE: Yes, your Honour.
HER HONOUR: You refer to Mr Pistol’s first affidavit, the one that was affirmed on 1 June 2009. You note that paragraphs 3 to 12 were not read, but you assert that the annexures are in evidence. The annexures are referred to in the paragraphs that were not read. Now, it may be common ground that that material is in evidence but I wanted to clarify that aspect.
MR PRINCE: Well, your Honour, I was intending to seek to now read those paragraphs in any event. If there is any doubt about whether the annexures are in then that would eliminate that doubt. So the reason that I seek to read those now rather than on 1 June is that the most recent decision of the Department expressly adopts and approves the decisions about intervention requests which have been made. So that deals with what was the objection on the last occasion. I do not know if my friend has an objection now.
HER HONOUR: Mr Potts?
MR POTTS: No, your Honour, there is no objection.
HER HONOUR: Very well. You may take it that paragraphs 3 to 12 of the affidavit of Mr Pistol are now in evidence and the annexures to which they refer. Yes.
MR PRINCE: Thank you, your Honour. There is another matter which arises from the introduction to my submissions which is the affidavit of Ms Tratt which contains the transcript of the interview. I would seek to read that now. There are two CDs which are exhibited to that affidavit and I would seek to tender those.
HER HONOUR: Is there any objection to the affidavit of Ms Tratt which was sworn on 30 June 2009.
MR POTTS: No, your Honour.
HER HONOUR: Yes, very well. Annexed to Ms Tratt’s affidavit is a transcript prepared by her of the interviews conducted by telephone with the plaintiff. Is there any need for there to be reference to the CDs?
MR PRINCE: Not at this stage, your Honour. If the matter was to go to hearing it might be necessary to play them. There is, for example - your Honour gets it from the transcript, and I will make submissions about it and at this stage I doubt that there will be any factual controversy, but the interruptions involve talking over the top of the appellant. It may be at a hearing in a more full exploration of the facts that that will become relevant. So at this stage they are probably not relevant, that is the CDs, but if the matter goes to a trial, they probably would be. I also do not know whether my friend requires the basis for the affidavit to be tendered at the same time as the affidavit is read so that it is clear that the basis of the affidavit is before the Court.
MR POTTS: Your Honour, may I just clarify, I am not going to be taking any point today that your Honour should not accept the transcript that is annexed to that affidavit. So, in my respectful submission, your Honour does not need to have regard to the recordings, but it is a matter for my friend I accept.
HER HONOUR: Yes. Mr Prince, as I understand it, and in light of the submissions filed on the Minister’s behalf, no issue is taken with the accuracy of the transcript or with the assertion that at times voices can be heard between a male person and a female person who would appear to be consistent with being Ms Barrio talking, as it were, off mike in the course of the interview. If those matters are not in issue and if I am not going to be asked to retire to listen to the CDs or have them played here in Court - - -
MR PRINCE: I will not press the tender then, your Honour.
HER HONOUR: Yes, all right, very well. Yes.
MR PRINCE: Your Honour, there is one other matter. It became apparent from reviewing the submissions and the evidence that there were some matters referred to in the submissions such as, for example, the Tribunal decision, the protection visa application and the like which had fallen through the cracks of any of the evidence put on. A further affidavit of 7 July 2009 was prepared by Mr Pistol which annexes the documents which, as it were, were referred to in the submissions but were not otherwise in the evidence.
HER HONOUR: I take it you read that affidavit?
MR PRINCE: I read that affidavit.
HER HONOUR: Any objection to any part of it, Mr Potts?
MR POTTS: No, your Honour.
HER HONOUR: Yes, very well. You may take it that the affidavit of Mr Pistol affirmed on 7 July 2009 is read. Yes.
MR PRINCE: Thank you, your Honour. There was also an amended application. I just want to make sure that the Court has that.
HER HONOUR: The amended application filed on 3 July 2009 is on the file, Mr Prince.
MR PRINCE: Thank you, your Honour. I will be addressing myself or the submissions address that application.
HER HONOUR: Yes.
MR PRINCE: I note that my friend in his submissions notes that some of the matters in the amended application are not explicitly dealt with in the submissions. That is true so far as it goes. The essence of the dispute – and this is always a difficulty with administrative law because there are a whole range of characterisations of what ultimately really is the same thing, that is that the guidelines have not really been applied. That can be broken down into issues of procedural fairness which is dealt with in the submissions; Wednesbury unreasonableness which, in my submission, contains within in it or at least is inextricably intertwined with notions of illogicality, irrationality, mistake of fact and the like which go to questions of whether or not in truth the guidelines were ultimately applied, and the improper purpose basis which is put.
I have endeavoured by identifying some of the authorities to indicate to your Honour that that is not put in what is called the red-blooded equitable sense of improper purpose, but rather where there is a divergence from a set of guidelines which an administrator is obliged to follow and observe, that that would constitute an improper purpose.
HER HONOUR: Can I just have that last submission again?
MR PRINCE: Perhaps it is easier if I take your Honour to the written submissions where that is set out.
HER HONOUR: I have taken on board the references to the authorities contained in your written submissions on the challenge that asserts that the second defendant was actuated by an improper purpose. The difficulty that I had in understanding the way the matter was put was not so much with the broad statements of principle but with the factual case that you make against the second defendant in light of those statements of principle.
MR PRINCE: Perhaps that is a more detailed issue. Perhaps I can come back to that in due course.
HER HONOUR: Very well.
MR PRINCE: Without trying to be too obtuse, where the officer has not implemented the guidelines or has acted otherwise than in accordance with the guidelines, then he has strayed outside the purpose which has been conferred on him by the instrument empowering him to do what he did. So to the extent that what he did lies outside the penumbra of the guidelines, he has strayed and that is what is the improper purpose. That is why those authorities are cited.
HER HONOUR: Again, not wishing to constrain you in how you develop your submissions, Mr Prince, but I do raise the difficulty that I have in seeing the relevance of some of the broad statements of principle, both contained in the written submissions and in the oral submissions that you have just advanced, to the facts of this case and in the circumstances taking the request of 27 May and the request of 4 June in each instance for ministerial intervention pursuant to section 417 of the Act and to clause 17 of the Minister’s guidelines for dealing with repeat requests of that character for the factual basis of the case that you advance as to the asserted improper foreign or ulterior purpose of the second defendant.
MR PRINCE: Your Honour, the nexus, I suppose, which might stand in the way of that understanding of the factual material is any notion as appears my friend advances in his written submissions that there needs to be found some evidence of an improper purpose, that is, some positive purpose other than the guidelines. In my submission, the analysis in the authorities is the reverse, that is, if the circumstances indicate that something has happened not in accordance with the guidelines, then that is the evidence of the ulterior purpose, so that the Minister and the plaintiff might be talking past each other on this point.
We do not say that the evidence discloses some ulterior motive, for example, but, in my submission, the authorities make clear that that is not what improper purpose is about, although it is named in that way. For example, if I could just take your Honour briefly to the submissions at page 40 and the extract from Western Australian Planning Commission v Kenwood at paragraph 97 and the extract there within the extract from Thompson v Randwick Corporation, the Court said:
“we do not mean that the Council is acting dishonestly. All that we mean is that the Council is not exercising its powers for the purposes for which they were granted but for what is in law an ulterior purpose.
In the present case the purpose for which the guidelines have been granted is to make an assessment in accordance with the terms of the guidelines. If the assessment has not been made in accordance with the terms of the guidelines, then that is what constitutes the ulterior purpose.
HER HONOUR: Addressing that case, Mr Prince, and turning to clause 17 of the guidelines dealing with repeat requests, what is the factual basis for the case that the second defendant in acting upon Ms Barrio’s recommendation contained in the minute of 19 June was not acting in accordance with the guidelines?
MR PRINCE: Your Honour, can I answer that first by going to clause 17. Does your Honour have that open?
HER HONOUR: Yes, I have that open.
MR PRINCE: The final paragraph of that which reads – this of course only deals with section 417, not section 48B. There are two assessments being undertaken.
HER HONOUR: I understand that, Mr Prince, and all that I put to you earlier was posited in relation to the response to the requests made under section 417(1).
MR PRINCE: Thank you, your Honour. So that that paragraphs reads:
In limited circumstances, a repeat request may be referred to me where the department is satisfied there has been a significant change in circumstances which raise new, substantive issues not previously provided or considered in a previous request, and which, in the opinions of the department, falls within the ambit of –
and then public interest, relevantly –
section 11 Unique or exceptional circumstances. For other cases, the department should reply on my behalf that I do not wish to consider exercising my power.
That is, it is only if that first part is not met that the letter which was ultimately sent by the Department should be sent.
HER HONOUR: Yes.
MR PRINCE: The question then becomes – noting that this is a question of the satisfaction of the Department and there is no question that a direct challenge can be made about errors of findings of fact and the like, but rather one is into the territory of the reasonableness of reaching those conclusions. Your Honour will see, for example, there is a whole range of matters which are put in the submissions about unreasonableness and errors of facts and illogicality and all of those types of matters.
What they constitute is a factual basis for supposing or finding that the officer has not been satisfied in a reasonable way or in an appropriate way of whether or not there has been a significant change in circumstances. The clearest example of that is the rejection – if I can just take your Honour back to the decision itself which is annexure K to the 19 June affidavit of Mr Pistol. Does your Honour have that?
HER HONOUR: Yes, I have that.
MR PRINCE: If your Honour goes to page 6, what the officer does is to find – although this is under the heading “Section 48B”, I will make it relevant to 417 in a moment, but your Honour sees that the decision-maker says:
I find that the information presented in this request was available to [the plaintiff] at the time of PV and RRT applications.
Just pausing there, the information that was presented in this request is - - -
HER HONOUR: The information that touches on the assault on the mother, amongst other things.
MR PRINCE: At the very least, that is right. That is the mother’s statement, which is annexure J to the affidavit. It is in Sinhalese and then the next page is an English extract. That statement had not been provided before. I do not think there is any debate about that. That was supplied on 16 June, if your Honour goes back to the beginning of annexure C.
HER HONOUR: On any view, the material touching on the mother’s assault was not material available to the plaintiff at the time of the protection visa and RRT applications.
MR PRINCE: Quite. That is at least part of the information which was presented with the request, to use the language of the decision-maker. The other information presented with the request is the letter from the General-Secretary of the United National Party and that is at annexure S to the affidavit of 5 June 2009. That includes a range of matters, some temporally relating to a period before the protection visa application and the Tribunal application, but also after, because that letter also contains reference to the assault on the mother or to the attack on the house. Does your Honour have that? That is annexure S. It is the 4 June 2009 letter.
HER HONOUR: Just bear with me a moment. Annexure S, was that to - - -
MR PRINCE: To the 5 June affidavit, not the 16 June affidavit.
HER HONOUR: Just bear with me. What page is annexure S on?
MR PRINCE: Page 41.
HER HONOUR: I am sorry, annexure S appears to be the letter that Mr Pistol sent to the Minister and annexed to it is - - -
MR PRINCE: A letter with an elephant at the top left-hand corner.
HER HONOUR: Yes. Now, I take it that is the Secretary-General’s letter?
MR PRINCE: Yes.
HER HONOUR: Where do I find the translation of that?
MR PRINCE: At page 44, your Honour. It is a little difficult to read.
HER HONOUR: It is very difficult to read, but your point is that although it canvasses some matters providing support for issues that were dealt with before the RRT, there is additional information that was not available at the time of the RRT’s decision.
MR PRINCE: Yes.
HER HONOUR: Does that amount to, as it were, additional information in the sense of new claims?
MR PRINCE: This is an interesting question because there seems to be some confusion by the decision-maker as to whether or not, and precisely how, new information is to be dealt with, that is, does it need to be a new claim or is new information a broader concept than that. It seems that the decision-maker views the guidelines as only involving new claims. At least in respect of the – I will take your Honour to the guidelines in a moment which will establish, in my submission, that really it is talking about information. The words “claims” and “information” are used in an almost interchangeable way in the guidelines. There is no clear bright line to say, well, the new information has to then relate to a new claim, but that is something I will take your Honour to when I go through the guidelines in a little bit more detail.
HER HONOUR: All right. For the present.
MR PRINCE: For the present it is both. In respect of the incidents relating to the mother occurring in 2009, on either view, it is new information. Indeed, it is a new claim.
HER HONOUR: Can you explain to me the basis of the assertion that it is a new claim?
MR PRINCE: Because it is a claim that the government members, those opposed to the UNP in Sri Lanka, came to the mother’s house at Matale. The previous claim related to the plaintiff living in a different place although the MI decisions incorrectly identify him as a person who lives in Matale but he is not, he had moved out of home. The family home is in Matale. The attack here occurs on Matale. Those opposed to the UNP were looking for the plaintiff as recently as now and when they could not find him they attacked his family.
That is a factual matrix giving rise to a claim that simply did not exist. It must be a new claim. If he arrived in Australia today he would be making a claim based on those events that by reason of his political association he feared persecution.
HER HONOUR: Can you just direct me to where on page 44 I find this material?
MR PRINCE: The material relating to the mother starts at about point 8 on the page. If your Honour goes over, see the line starting “by your letter bearing” seven lines up from the bottom.
HER HONOUR: Yes.
MR PRINCE: In the middle of that line your Honour will see the sentence starting:
There was no end for the vexation. Again threats began to come from –
the chairman of the district council. That is in July 2005. I am sorry, I have started a bit early, but if your Honour goes on to the penultimate line, the sentence starting:
Not only this, his mater was also threatened to inform where he resides. The household utensils were reduced to matchsticks causing a massive destruction by –
this gentleman. Then it goes on.
HER HONOUR: Yes, I see.
MR PRINCE: In the final paragraph:
There are death threats to [him] which can be inferred from the above factors and as a result he is facing mortal danger while dwelling in Sri Lanka.
That is from the leader of one of the major political parties in Sri Lanka. Your Honour has already read, I take it, the mother’s statement, although perhaps I will take your Honour to that just for completeness. It is annexure J. This is the 19 June affidavit, your Honour.
HER HONOUR: Yes, I have that.
MR PRINCE: I am sorry, these pages are not numbered, your Honour.
HER HONOUR: I have annexure J to the affidavit of 19 June. It is a document again by Mr Pistol addressed to Ms Barrio.
MR PRINCE: I have given your Honour the wrong reference. It is annexure K within an annexure, so if your Honour goes to annexure C – it can be resolved fairly less difficultly than it sounds. If your Honour goes to annexure C, that is the letter of 16 June.
HER HONOUR: The document that I have as annexure K within annexure C has “Summary of five flaws in the DIAC Minute”.
MR PRINCE: I am sorry, your Honour, that is annexure J.
HER HONOUR: Yes, all right.
MR PRINCE: Perhaps your Honour might tag it just so that I do not lead your Honour astray again. Annexure J is the Sinhalese note extracted from the information book of a police station at the hospital. Then on the next page there is an English translation. I will just let your Honour read that.
HER HONOUR: Yes, I have.
MR PRINCE: This is a new event which, in my submission, in its own right would give rise to a claim for protection. Just returning back to the 19 June decision, that is the information which was before the decision-maker which is described as being available to the plaintiff at the time of her protection visa and RRT applications and that there were no compelling reasons why it was not provided earlier. That then must, in my submission, bear on the finding in respect of section 417 at page 7. After the extract from clause 17 your Honour finds the paragraph starting:
I do not find that there has been a significant change in circumstances - - -
HER HONOUR: Yes.
MR PRINCE: That must be understood, in my submission, by reference to the earlier finding that the information in the request was available to him at the RRT and PV application. There is a requirement for something new about – a change or something different about the circumstances. If that new information is dismissed as not being anything different to what was in the PV or the RRT application, then it would necessarily follow that there has not been any change in circumstances, so that is at the root of the problem, when clearly, in fact, there has been a change in circumstances.
HER HONOUR: Mr Prince, I understand that of the various matters that you point to as demonstrating a flawed process of reasoning on the part of the author of the minute, the strongest point is the characterisation of the material contained in the Secretary-General’s letter and in the reports relating to the plaintiff’s mother and the attack upon her in February of this year as - - -
MR PRINCE: Not new.
HER HONOUR: Yes. I understand the way that is put in support of a Wednesbury challenge of the character that is that the decision was irrational. What I am trying to come to terms with at the moment is the separate basis upon which it is asserted that the second defendant was, in the confined way that you allege, actuated by an improper purpose in his decision, if it is to be characterised in that way, to act on the recommendation of Ms Barrio contained in the minute signed 19 June. Again, when one looks to the guidelines, and I have directed your attention to clause 17 of the guideline relating to section 417, but equally, in relation to the guideline addressing intervention under 48B(1) - - -
MR PRINCE: Yes, your Honour.
HER HONOUR: I have difficulty seeing the factual basis for a contention that the second defendant was failing to make an assessment in accordance with the guidelines.
MR PRINCE: The second defendant is ultimately the one who makes the decision to not refer the matter to the Minister. On his head lies the responsibility to discharge the obligation under the guidelines. I will call it obligation rather than duty at the moment. When he adopts the reasoning of the author of the report, that is his reasoning, and - - -
HER HONOUR: I understand that concept. I understand that is the way it is put, Mr Prince, and I understand you have a contention based on Wednesbury grounds, or, if you like, an extension of Wednesbury involving the notion of irrationality, but I come back to the distinction between that challenge, which is at least one that I can come to grips with, and the basis for a separate challenge contending improper purpose which earlier you put to me involved the notion that something has happened that is not in accordance with the guidelines and that is evidence itself of an improper purpose.
MR PRINCE: Yes.
HER HONOUR: Is there anything beyond the assertion that you make that the process of reasoning is irrational that would support the separate ground, which I will call ground 3, and that is a reference to the ground of improper purpose.
MR PRINCE: I think I have also referred your Honour to the instances of the conversations with Mr Pistol, the telephone conversations which are file noted, together with the conduct of Ms Barrio in the interview. I understand what my friend says, that is that the conduct of Ms Barrio was not the conduct of the second defendant. In my submission, it ultimately does not matter, certainly not at this stage.
It may be that down the track if the matter goes to trial and there is discovery there is an unidentified male voice there. It may well have been Mr Leyden – present at the interview, that is – but one would certainly expect that Mr Leyden, as Ms Barrio’s manager and responsible ultimately for making a decision based on her work, would review what had been done in making his determination to agree or to not agree to the assessment. One would expect that he would have reviewed the material that Ms Barrio had before her.
There was a tape recording of the interview. One would have expected that was done for a purpose, that Mr Leyden would have had access to that tape recording of the interview. The interview was referred to in terms in the minute that Ms Barrio has prepared, to which Mr Leyden agreed, so that the failings of Ms Barrio, in my submission, are the failings of Mr Leyden. If that is not ultimately accepted then it would simply be a matter of joining Ms Barrio. The substantive matter does not change. It is a matter which could be further explored prior to a proper trial, but the substantive issue does not go away. There is no suggestion that Ms Barrio was going off on some frolic of her own. She was engaged in a process which was subject to the supervision of Mr Leyden, ultimately.
HER HONOUR: Accepting that for present purposes, Mr Prince, what is the evidence of improper purpose that you rely on in the telephone conversation of which Mr Pistol has made a note?
MR PRINCE: For example, if I could just take your Honour to those file notes. I believe they are in the 19 June affidavit. There is a file note of 16 June.
HER HONOUR: Can you give me the annexure number?
MR PRINCE: Yes, I will, your Honour - annexure D.
HER HONOUR: Yes.
MR PRINCE: I am sorry, I think I have taken your Honour to the wrong file note. There is another file note of 16 June which is annexure B.
HER HONOUR: Yes.
MR PRINCE: For example, your Honour will see in the fourth paragraph Mr Pistol deposes that – he asked whether there were any concerns that the plaintiff needed to address in the application because the plaintiff would like a chance to respond to any concerns the Department had. She said:
“I’m doing the guidelines assessment now, it doesn’t appear to meet the guidelines. I’m not sure anything further you could say could change that. I am intending to take this to the Director this afternoon but I am happy to consider anything further you send as long as it does not take any longer than this afternoon”.
Then she said:
“A lot of things have been tested and presented and the minister has seen this twice. There are no new claims”.
This is after the – at the very least – the UNP General Secretary document had been provided to Ms Barrio. Then Ms Barrio is asked by Mr Pistol whether the plaintiff could raise in a constructive way problems with the previous decision and then Ms Barrio says:
“My decision does not depend on the last decision. And that is before the courts. What I did was examined the whole case and all the information that has been provided, including the RRT and the Protection Visa application and prior requests. I did this over the weekend, I went back to basics and did not rely on the last decision”.
When your Honour goes to the decision itself, or the minute itself, the ministerial requests, previous assessments in the ministerial requests were assessed by Ms Barrio to be “accurate, relevant and complete”.
HER HONOUR: Yes. Can you just give me the page reference. I have the minute. Could you just - - -
MR PRINCE: Of 19 June.
HER HONOUR: I have that.
MR PRINCE: If your Honour goes to page 2 in the middle of the page:
I attach copies of relevant decisions . . . I have found the information contained in the previous assessments and in the material presented to the Minister accurate, relevant and complete, the assessments in line with the guidelines provided by the Minister and the processes correct.
There is, contrary to what was represented to Mr Pistol, a degree of reliance by Ms Barrio on the previous determinations of the ministerial intervention requests. It is a rather curious decision in the sense that a decision is made which approves a previous ministerial intervention request decisions which contained errors which are detailed in my written submissions, but at the same time the next paragraph indicates that the decision-maker:
will not comment on claims made by Mr Pistol and Mr Yoo regarding processes in relation to the request of 28 May 2009 - these matters are currently before the Federal Court.
So that on the one hand she approves everything that has gone before and finds that the processes were correct and accurate, but on the other hand tries to carve out or also says that she is not reviewing any of the concerns about the earlier decisions. So that what happens is a process under the guidelines which is meant to be an assessment of new information in light of all the previous material becomes, in essence, a trial about whether or not the previous decisions were correct – not the information but the decisions were correct - - -
HER HONOUR: I am sorry, you seem to be drawing something out of the fourth paragraph on page 2 of the minute of 19 June that it is not clear to me is there to be drawn. Attached to the minute are copies of decisions and the previous requests which it is noted provide a comprehensive summary of the case. Ms Barrio says she has found the information contained in those assessments and in the material that has been presented to the Minister since, as I understand it, on two occasions requests were forwarded for the Minister’s consideration. That is the case, is it not?
MR PRINCE: Yes.
HER HONOUR: So she says she has found that “material presented to the Minister accurate, relevant and complete”?
MR PRINCE: Yes. That is not her function within the ambit of the guidelines.
HER HONOUR: Whether it is her function or not, how does any of the material contained in the fourth paragraph on page 2 support an argument that Ms Barrio was actuated by an improper purpose in the confined way that expression has been used in the local government cases and in Re Toohey?
MR PRINCE: Because what she was doing was outside of the guidelines which reposed in her the power to refer or not refer the material to the Minister.
HER HONOUR: All right. I understand that submission.
MR PRINCE: Yes, thank you, your Honour. Again, it may be that the plaintiff and the defendant are talking past each other in the sense that we are not pointing to some smoking – there is no question here of something like a bribe or some extraneous purpose of a - - -
HER HONOUR: Mr Prince, that is perfectly plain.
MR PRINCE: Thank you, your Honour.
HER HONOUR: Mr Prince, what I continue to find elusive is the substance in any distinction between the challenge that you seek to advance on Wednesbury grounds and this ground of improper purpose.
MR PRINCE: There probably is not any plain material which is different. Those things which are irrational founded on a material mistake of fact, all of those matters that go to make up Wednesbury unreasonableness also, in my submission, evidence an improper purpose. It is really an alternative expression of a ground which has at its heart the same factual substratum.
HER HONOUR: All right.
MR PRINCE: In my submission, the authorities support that in a context where the function of the Executive is confined, as it is here, by a set of guidelines so that everything that needs to be done by the officer is set out in the guidelines. Any action by the officer which strays outside of those guidelines is necessarily, in my submission, an improper purpose because it is beyond the ambit of or the scope of the role given to the officer.
HER HONOUR: The role given to the officer in relation to requests for ministerial intervention under section 417(1) is to determine whether the officer is satisfied that there has been a significant change in circumstances raising new substantive issues not previously provided or considered in a previous request which in the opinion of the officer fall within the ambit of public interest as defined in clause 9, referral by a review tribunal as referred to in clause 10 or unique and exceptional circumstances as referred to in clause 11. On its face, that would seem to be a rather broad guideline.
MR PRINCE: Yes, that is true but what it does not include is, for example, a power to disregard, as it were, matters which are – I am sorry, your Honour. What it does not empower the person to do is to engage in an irrational or illogical process of reaching that decision.
HER HONOUR: Accepting, for present purposes, that irrationality in a Wednesbury, or an extended Wednesbury sense, provides a ground of challenge to the exercise of the function of an officer assessing an application for ministerial intervention in accordance with the guidelines, I am, nonetheless, endeavouring to focus you on your third ground.
MR PRINCE: I understand.
HER HONOUR: All right.
MR PRINCE: Your Honour, in my submission, the third ground is really just the other side of the coin. It is a consequence of that because if the guidelines do not authorise – I am sorry, if the guidelines do not authorise irrational decisions then the making of an irrational decision is outside the scope of the guidelines so that it is really a consequence of acceptance of the Wednesbury ground.
HER HONOUR: How does it avail you? Either you succeed on your Wednesbury ground or you do not. If you do not, you have no factual substratum, as you would put it, in support of your third ground, do you?
MR PRINCE: That is right. I suppose, also, that a denial of procedural fairness is also – assuming that procedural fairness is taken to apply to the guidelines or determination under the guidelines in the way that I have argued but I will come back to it in a moment. Just assume for a moment it does apply and there has been a breach of those rules, then like the Wednesbury it will also sound in that final ground. So that that final ground is really a conglomeration of the other grounds in terms of factual substratum. It does not have, at this point, really an independent life of its own.
We do have some concerns which might ultimately give it at a trial some sort of different life because of some of the asides that occur in the transcript where it may appear that Ms Barrio has taken a pre-emptory view of the case. Again, that would be a Wednesbury ground, in any event, if that is what she had done, so that it really is a conglomeration of the other grounds. It avails me in this way, your Honour, to the extent – my primary submission is that judicial review of these types of decisions is available.
There was some debate on previous occasions as to whether or not Raikua, the decision of Mr Justice Lindgren, meant that only grounds of improper purpose or bad faith might be available. This is a good example as to my primary submission why that distinction cannot be drawn because there is such an overlap between administrative law grounds of review, as acknowledged in the cases, that it is difficult to see, for example, how a requirement to afford procedural fairness which is breached could mean that a decision has been made within the guidelines authorising the decision and therefore it would be for an improper purpose.
The issues of taxonomy really obfuscate rather help because to the extent that it might be said that the door is only open far enough to allow allegations of improper purpose or the like to be made then that ground avails me but my primary submission is that the door is not so limited, the door can open wider than that, but if, as a matter of principle, judicial review can occur then it can occur on the usual grounds and there is no point confining it, in which case the requirement for the third ground really goes away, in a sense.
HER HONOUR: The third ground might be thought to obfuscate?
MR PRINCE: Yes.
HER HONOUR: Yes, all right.
MR PRINCE: Yes. I would rather not have to plead it, but there it is. If there is, it would be remiss of me to not characterise it in that way.
HER HONOUR: I understand, Mr Prince. Whilst we are dealing with the factual substratum of grounds 2 and 3, could I take up one matter with you and it is raised in the Minister’s submissions that deal with the specific complaints that you make under ground 3 in paragraph 100 of your submissions. Insofar as you endeavour to flesh out ground 3, you assert that the matters identified in paragraphs - and then you set out a number of them - demonstrate that there is evidence which raises an arguable case on this ground.
MR PRINCE: Yes.
HER HONOUR: One of the matters to which you refer in that compendious way is paragraph 44j) and counsel for the Minister notes there is no such paragraph. Am I right in understanding that is a reference to paragraph 43j) and to the material concerning the medical assessment of the fitness of the plaintiff for travel which made no reference to his mental health status?
MR PRINCE: Yes.
HER HONOUR: Yes, all right. I just wanted to clarify that. Yes, very well.
MR PRINCE: Thank you, your Honour. Your Honour, could I address a couple of matters in – I will not repeat what is in my written outline. If I could just address a few of the points made by my friend. The first is – and I suppose it is a critical factor of difference between us – it seems that there is a proposition, at least implicit, in the Minister’s submissions that judicial review will not lie where a decision is not made directly under a statute.
HER HONOUR: I am not so sure about that, Mr Prince, but I do understand the Minister’s contention to be that in performing a task of sorting applications in accordance with the guidelines that the Minister has given to officers of his Department to deal with requests in respect of which he is under a non-compellable – he has a non-compellable power and in which he has indicated in advance that in relation to repeat requests under 417 he is not disposed to considering them save in very limited circumstances. Now, in the process of assessing those applications, I understand the Minister to contend that the officer is not performing a public duty, as you style it in the amended application, or a legal duty that is enforceable in a court and accordingly, he says, no judicial review.
MR PRINCE: Yes. The question, I suppose, that immediately arises from that proposition is, what is the official doing? If they are on the government’s time and they are doing their work in the normal way as public servants as contemplated by section 63, I think it is, of the Constitution, whatever they do is either to give effect to a statute which has been passed by the legislative branch or in furtherance of the prerogative which is bestowed on the Ministers pursuant to, I think, section 62 of the Constitution.
It cannot be said that what they are doing is a non-public function or a function which is private in any way or lies outside the scope of their duties as officers of the Commonwealth. Ultimately what they are doing is carrying out a direction of the Minister. In a sense, they are carrying out a – either it is prerogative or it is legislative. Either it is impliedly contemplated by the terms of section 48B and section 417, that would be a statutory job, or it is something which is done in the course of their duties as public servants carrying out the wishes of the Minister which is within the prerogative. But one way or another it is a public function that they are carrying out. The public function has been defined and delimited by the guidelines.
In S134 there were no guidelines in issue. The only thing that was looked at was the big, broad power to determine matters in the public interest. In S134 the plaintiffs had said, well, clearly the status of the father as a refugee cannot have been considered by the Minister because if it were he would have granted the visa. We do not have an argument at that level of abstraction. We do not have to exclude other factors which might override these particular factors; rather, the present case is concerned for very discrete and clear set of guidelines.
Your Honour’s characterisation of those guidelines, in my submission, is, with respect, accurate, that is, it is an indication by the Minister that he does not wish to consider matters under section 48B if X, Y and Z. The corollary of that is, he does wish to consider matters under 417 or 48B, or at least have them drawn to his attention if not X, Y and Z. So that this is not a mere mail-sorting exercise that is being carried out by the decision-makers. They are carrying out a public function in the sense that the Minister has given them a direction within the scope of the guidelines to assist him with the consideration of his statutory power. Now, one has to remember the rationale and source of the immunity of the Minister from judicial review of decisions under sections 417 and 48B. It is because they are made at a very high level. As your Honour goes to - - -
HER HONOUR: I thought it was because of the clear terms of the sections in each instance, namely, subsection (6) of 48B and subsection (7) of section 417.
MR PRINCE: Perhaps the best way of dealing with it is to go to S134 [2003] HCA 1; 211 CLR 441.
HER HONOUR: Yes.
MR PRINCE: If your Honour goes to the decision of their Honours Justices Gaudron and Kirby who were in the minority on the question of the Tribunal invalidity but were in the majority on the question of 417 and 48B. Starting at page 460, paragraph 45:
However, when exercising the power under s 417, the Minister was not bound either by Subdiv AA (ss 44-51) or Subdiv AC (ss 65-69) of Div 3 of Pt 2 of the Act, or by the Regulations.
Then there is an analysis of what Subdivision AC contains and then:
Further, s 417(3) stipulates that the power under the section may only be exercised by the Minister personally. The identification of the Minister as the sole repository of the power indicates the legislative intention that the question of the substitution of a more favourable decision to disappointed applicants is to be answered by the taking of a broad approach.
That is in the context where there are no guidelines. I am sorry, your Honour, I am reading from the majority judgment. It is headed Justices Gaudron and Kirby because that refers to the part on the bottom of the page. I am grateful to my friend for drawing that to my attention.
HER HONOUR: Yes. It is also relevant, whilst you are on page 461, to have regard to the joint reasons at paragraph 48.
MR PRINCE: Yes, and also 47 and were this an application against the Minister, those observations would be pertinent.
HER HONOUR: Mr Prince, I wonder if we can short circuit this to some extent by this. Your contention is that, notwithstanding that the Minister is under no duty even to consider whether to exercise the powers under sections 48B and 417, at an anterior level, namely, the assessment of the requests which come into the Ministerial Intervention Unit, there is scope for judicial review.
MR PRINCE: Precisely.
HER HONOUR: Against you the Minister relies on the reasoning which is contained in the judgment of Justice Lindgren in Raikua v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 370; (2007) 158 FCR 510 at 522, paragraph 64. On the last occasion you drew to my attention, having had the matter drawn to your attention by counsel for the Minister, that there are proceedings pending in this Court which would challenge the correctness of his Honour’s conclusion at paragraph 64.
MR PRINCE: Yes.
HER HONOUR: For present purposes let us accept that the assessment by an officer of the Commonwealth that a request for ministerial intervention under sections 48B or 417 does not come within the Minister’s guidelines may be susceptible of judicial review on grounds of denial of procedural fairness and on Wednesbury grounds, including what I might describe as a somewhat extended view of Wednesbury involving the notion of irrationality. Let us accept that for present purposes. It remains for you to establish an arguable case that there has for, firstly, procedural fairness having the content that you articulated on an earlier occasion and I understand you rely on having regard to your written submissions, it is a notion that at the anterior level of assessing the applications by reference to the ministerial guidelines the departmental officer comes under an obligation to draw particulars of information that he or she may take into account in determining that the application does not meet the guidelines. Is that there?
MR PRINCE: It is probably put in this case on a more limited basis than that.
HER HONOUR: All right. What exactly is the content of the obligation for which you contend you have an arguable case in this instance?
MR PRINCE: At the very least to carry through with representations as to the process which will be applied and adopted, that is, the content of procedural fairness will obviously vary from case to case.
HER HONOUR: Yes.
MR PRINCE: It may be that in certain circumstances of an application for 417 or 48B consideration the content is zero, but on the present facts and the present circumstances where something has been done or a process has been started, representations have been made that a process will occur, that needs to be followed through.
HER HONOUR: All right. Can you just flesh out for me the respects in which you say there has been a failure to conform to the representations made by departmental officers concerning the process that was to be adopted?
MR PRINCE: There was a representation. Your Honour will recall that there was a meeting. If I can take your Honour to annexure D to the affidavit of 19 June.
HER HONOUR: Yes.
MR PRINCE: At the end of that conversation, the second page of the file note, Ms Barrio said to Mr Pistol that she was happy to get the plaintiff on the phone and ask him the questions, that is, she – if your Honour goes back to the first page in the conversation, there is a statement in the third paragraph that “There are a couple of things I would also like to ask about”.
HER HONOUR: Can I just ask you to pause for a moment and can you tell me this. It is asserted in the Minister’s written submissions that Mr Pistol is a legally qualified person. I am not sure that I have picked that up from the material. It may well be so. I see reference to him being a volunteer with the Balmain for Refugees group.
MR PRINCE: Yes, your Honour.
HER HONOUR: Is there evidence that Mr Pistol is a legally qualified person?
MR PRINCE: I think there is evidence in the sense that there are statements by him in phone conversations, but I can tell your Honour that he is.
HER HONOUR: All right. Am I right in my understanding that he was present at one, or it may be both, of the telephone interviews conducted by Ms Barrio with the plaintiff?
MR PRINCE: Yes.
HER HONOUR: And is the answer present at both?
MR PRINCE: Yes.
HER HONOUR: With the plaintiff or was he with Ms Barrio?
MR PRINCE: He was with the plaintiff at the Villawood Detention Centre.
HER HONOUR: Yes. All right. Now, in the conversation to which you have directed my attention, which is a telephone conversation between Mr Pistol and Ms Barrio on 17 June, Ms Barrio is recorded as raising with Mr Pistol some concerns she had concerning the credibility of accounts that the plaintiff had given.
MR PRINCE: Yes, your Honour.
HER HONOUR: The conversation between Ms Barrio and Mr Pistol concludes with her, Ms Barrio, telling Mr Pistol of her willingness to speak with the applicant by telephone and ask him questions about these matters. Is that a fair way of viewing it?
MR PRINCE: Yes.
HER HONOUR: Is the complaint as to denial of procedural fairness that, in the following telephone interview, Ms Barrio did not herself raise those matters?
MR PRINCE: That is right. She did not raise matters which ultimately she held against the plaintiff.
HER HONOUR: Are they matters other than the matters that she had told the plaintiff’s representative, a legally trained person, were the matters that were of concern to her?
MR PRINCE: Yes.
HER HONOUR: All right. So there are additional matters apart from those matters?
MR PRINCE: Yes.
HER HONOUR: Just so I understand the suggestion, it is not asserted that her failure to raise herself the matters that she had conveyed to the plaintiff’s representative were matters of concern is a ground of denial of procedural fairness.
MR PRINCE: No. Yes, I understand your Honour’s point.
HER HONOUR: If you can then identify the matters that - - -
MR PRINCE: For example, and going back to the decision itself, the key finding that the information presented in the request, page 6, your Honour, in the middle of the page under the extracts, the key finding that:
the information presented in this request was available to [the plaintiff] at the time of PV and RRT applications –
was not put.
HER HONOUR: All right. Is there any other matter that you rely on in support of this contention?
MR PRINCE: If your Honour goes to page 8 – they are all interconnected in the sense that they are – that kernel that there is no information really covers everything. The rest are really dependent on that kernel of finding, but if your Honour goes, for example, to page 8 your Honour sees in the second paragraph on the page:
Although they may have been interested in [the plaintiff] at the time, there is no evidence that they have an ongoing interest in [the plaintiff] or that they would in the future.
HER HONOUR: I understand that may be relevant to your ground of irrationality, but at the moment I am trying to focus on procedural fairness. Now, as I understand it, Mr Prince, you accept that the content of procedural fairness obviously depends on the particular context that one is concerned with. You acknowledge that in relation to requests for ministerial intervention under sections 48B and 417 the content of procedural fairness may in a particular case be zero. Your contention is that in the circumstances of this case by reason of the representations made by Ms Barrio to Mr Pistol, an obligation of procedural fairness arose.
However, you do not suggest that the representation that Ms Barrio made, namely, that she would take up the matters of concern that she had identified to Mr Pistol in the telephone conversation of 17 June that found a basis of denial of procedural fairness, you have moved to asserting the denial of procedural fairness was Ms Barrio’s failure to raise with the plaintiff her view that the information concerning an attack on the plaintiff’s mother in Matale on 8 February of this year was material that he omitted to include in the protection visa application submitted in 2005 - - -
MR PRINCE: Was available to him.
HER HONOUR: Yes – to be advanced in support of the protection visa application in November 2005.
MR PRINCE: Correct.
HER HONOUR: Now, either there is substance to your contention based on grounds of irrationality with respect to that matter, or there is not and we will come to that, but I am at some difficulty in seeing - - -
MR PRINCE: How it is a procedural fairness issue.
HER HONOUR: - - - an arguable case on procedural fairness arising out of that omission.
MR PRINCE: Because it was the key issue in her decision and he was not put on notice – in a context where he was told he would be asked questions of concern that were matters of concern to the decision-maker, he was told that he would be given this interview process and that things would be put to him and he would be given an opportunity to answer them, but the decision-maker did not put him on notice that this was an issue. Had he known that it was an issue, the Wednesbury unreasonableness could have been possibly averted.
HER HONOUR: Had he known what was an issue?
MR PRINCE: That the material advanced in this request was available to him at the protection visa and RRT stage.
HER HONOUR: Is this a serious contention that Ms Barrio believed that police reports and the contents of a letter written by the Secretary-General concerning an event that occurred on 8 February 2009 was not relied upon in support of an application lodged in late 2005? Is that seriously advanced?
MR PRINCE: Well, it was serious to her. Sorry, I do not believe it for one minute, but it was an issue to the decision-maker and the reason that that is important is because procedural fairness requires that issues be ventilated. Ultimately, procedural fairness should result in decisions being made which are rational in the sense that if the decision-maker has in mind some error and it is put, it can be corrected. So that here it was relevant to the decision-maker that she believed that material was available to him. Procedural fairness is always an anterior requirement. The requirement always attaches before the decision is actually made so that it happens at a different point in time.
HER HONOUR: I am going to cut you off for a moment. Rather than you developing further the content of procedural fairness, can I just raise with you as a matter of rationality this. However one reads the minute signed by Ms Barrio on 19 June 2009, the notion that Ms Barrio considered as a matter of fact that the applicant had available to him at the time of his 2005 protection visa application the police report concerning the 8 February 2009 alleged assault upon his mother seems to me to be an unlikely conclusion to draw. One can see a number of matters that one could take from Ms Barrio’s finding that the information presented in what she describes as “this request” was available to the applicant at the time of the earlier application, but I would require persuading that one is to read it in that way. It is patently absurd, Mr Prince.
MR PRINCE: I agree, your Honour, and that is my Wednesbury ground.
HER HONOUR: I understand your Wednesbury ground and we are going to come to it, but at the moment I am trying to grapple with procedural fairness - - -
MR PRINCE: With procedural fairness. I understand, your Honour.
HER HONOUR: - - -and the notion that Ms Barrio denied the plaintiff procedural fairness by failing to say in her telephone conversation with him, “Can you explain to me, Mr Applicant, how it is that you failed in November 2005 to tell the Department that your mother had been assaulted on 8 February 2009?” That asserted failure seems to me to be a slim reed to hang the ground of procedural fairness upon. We can come back to it in the context of the case that you make on Wednesbury.
MR PRINCE: Yes. Your Honour, it is always possible and in fact likely that matters of mistaken fact which are going to be relevant to a decision-maker’s decision should be ventilated and put to a plaintiff before the decision is made. It is not only accurate statements of fact which need to be ventilated. What procedural fairness requires is that the decision-maker give the plaintiff an insight into what the decision-maker perceives to be the case and is going to be held against him so that then an answer can be given. Procedural fairness does not care whether or not the material that is advanced is right or wrong because ultimately a fair process will discover that out, but as long as a perceived fact or a perceived matter is important to a decision-maker, it should be disclosed in these circumstances.
HER HONOUR: Mr Prince, I think we are now perhaps at odds somewhat in – the matter that I was putting to you, Mr Prince, was the difficulty I have in concluding that Ms Barrio’s reasons are to be understood as involving her belief that it was a relevant omission not to include in the initial protection visa application information concerning an assault on the mother that had not at that time taken place. That is the matter that I have really invited you to address and it is a factual matter about what you draw from the minute which is annexure K to Mr Pistol’s affidavit of 19 June.
Can I just, whilst we are on procedural fairness and in this particular line of territory, draw to your attention that in the telephone conversation of 17 June Ms Barrio did raise with Mr Pistol, the legally qualified representative of the plaintiff, aspects of her concerns relating to the credibility of the account that the mother had given in the police report, as I understand the file note of the conversation.
MR PRINCE: If I can deal with the last point first, your Honour. Those doubts about the credibility of the mother’s account do not seem to then find their way in ultimately to the decision.
HER HONOUR: That is, may I suggest, Mr Prince, perhaps neither here nor there. The matter that I am raising with you is that when one comes to look at the content of procedural fairness in circumstances where it is acknowledged that in some cases there would be no obligation at all, but in the circumstance where the departmental officer has said to the applicant’s representative, “These are some matters that are of concern to me. They include the credibility of aspects of the account contained in the police report relating to the assault on the mother on 8 February of this year” and the representative has gone on to say, “I am happy to have a further interview with the applicant so these matters can be cleared up” and when the legal representative is present with the applicant at that further interview, I am having difficulty seeing support factually for the complaint as to denial of procedural fairness.
MR PRINCE: Not because of what is asked but because of what is not asked, so that - - -
HER HONOUR: Mr Prince, that tends to overlook in a context where it is acknowledge the content of procedural fairness is not fixed and where I understand you do not contend for an obligation as specific as that found in relation to section 424A.
MR PRINCE: Section 424A or any of those statutory provisions, yes.
HER HONOUR: Yes. Am I right in saying you do not contend that there is an obligation of that character?
MR PRINCE: No.
HER HONOUR: In those circumstances where the general topic has been raised with the representative of the plaintiff, the plaintiff has been then afforded an opportunity to submit to an interview and he has his representative present with him at that interview - - -
MR PRINCE: One has to dig a bit deeper than that, in my submission, because, yes, he has an interview and, yes, there is the formalistic appearance of procedural fairness because there is an interview and there is a lawyer present and all of those factors, but the question is, what happens at the interview because he is told, “You are going to have this interview where I can put to you matters which are of concern to me”?
HER HONOUR: Yes.
MR PRINCE: Then matters which are ultimately held against him of the decision are not put to him.
HER HONOUR: And the matters that you identify so far are two and they are the matters you have already taken me to – I do not ask you to repeat them, but they are on page 6 and page 8. They are the finding that the information presented in “this request” was available to the plaintiff at the time of his protection visa and RRT applications and on page 8 the officer’s conclusion that “there is no evidence” that members of LTTE “have an ongoing interest” in the plaintiff.
MR PRINCE: That is right.
HER HONOUR: All right.
MR PRINCE: There are other examples in my written submissions but they are cross-referenced.
HER HONOUR: No, I want to understand the procedural fairness ground. Your written submissions are - - -
MR PRINCE: Cross-referenced.
HER HONOUR: You take me to precisely what it is you rely on.
MR PRINCE: Before I do that, can I take your Honour to another larger issue within the procedural fairness within the decision itself? If your Honour has the 19 June decision.
HER HONOUR: Yes, all right.
MR PRINCE: This is in the character of those two examples I have already given your Honour.
HER HONOUR: Yes, all right.
MR PRINCE: At page 2, the fourth paragraph, the decision-maker says:
I have found the information contained in the previous assessments and in the material presented to the Minister accurate, relevant and complete, the assessments in line with the guidelines provided by the Minister and the processes correct.
The plaintiff was not alerted that that process was going to be undertaken or that that was an issue and indeed when the plaintiff’s representative tried to argue with Ms Barrio or present arguments as to why previous requests were wrong or suffered from defects, he was told, “I’m not going to rely on those earlier decisions. They are not going to form part of my decision.”
HER HONOUR: Can you take me to exactly what you rely on?
MR PRINCE: If your Honour goes to the file note of 16 June which is at annexure B to the affidavit of 19 June?
HER HONOUR: Yes.
MR PRINCE: Then your Honour will see that during that course of that conversation Mr Pistol is advancing reasons why the previous inconsistencies or problems were present. Then if your Honour goes to the 16 June file note, the first page, the fifth paragraph Mr Pistol says:
“we have concerns with the reasons the prior request did not meet the guidelines and I would like to raise those in a constructive way, because I think the prior decision will have a bearing on your current decision.” I asked “Do you have a copy of the last decision?” She replied “yes”.
She said something to the effect “My decision does not depend on the last decision. And that is before the courts. What I did was examined the whole case and all the information that has been provided, including the RRT and the Protection Visa application and prior requests.
That is, not the decisions, the ministerial intervention decisions.
HER HONOUR: Read the next paragraph:
I asked “did the information you consider include our intervention request of 27 May - - -
MR PRINCE: Yes, that is the request. Not the assessment of the request.
HER HONOUR: Yes.
MR PRINCE: She disclaims that her decision would have as a part of it reliance on the previous decisions.
HER HONOUR: She is saying she will make a fresh decision.
MR PRINCE: Yes.
HER HONOUR: That is what one would expect. Indeed, there would be a complaint, no doubt, Mr Prince, if it were otherwise.
MR PRINCE: Your Honour, in the way that it is done is he is told that the previous decision is not going to be a factor and when the decision is handed down it is - - -
HER HONOUR: It is important to look to the evidence.
MR PRINCE: Yes.
HER HONOUR: What Mr Pistol was told in the telephone discussion of 16 June was that Ms Barrio’s decision did “not depend on the last decision”. The last decision is before the courts and that what she had done was:
examined the whole case and all the information that has been provided, including the RRT and the Protection Visa application and prior requests. I did this over the weekend.
That is the evidence.
MR PRINCE: Yes, right. And that is what she considered, that is, what she says by that evidence is that she is not having regard to the ministerial intervention request decisions which had previously been made.
HER HONOUR: She says she will make her own decision.
MR PRINCE: That is right.
HER HONOUR: All right. Yes.
MR PRINCE: Indeed, at the end of the interview, page 17, Ms Barrio says:
Yes, can I just say that, as I explained to you on the phone - - -
At page 17 of the affidavit.
HER HONOUR: Just bear with me, page 17.
MR PRINCE: Of the transcript.
HER HONOUR: Yes.
MR PRINCE: Mr Pistol says:
I don’t know if there is anything that I can add at this moment –
He is asked the big, broad, general question, is there anything you want to say? Then he says:
I don’t know if there is anything that I can add at this moment on this record on the phone right now. I mean, I think, as you know we think there are masses of issues with this case. We’ve put some of those to you. I could talk for hours about the problems that I think there are but I think you know I think you understand that.
VB. Yes, can I just say that, as I explained to you on the phone I am looking at this case with fresh eyes. You have made allegations about that [the plaintiff] didn’t have the right interpreter, he didn’t have the right migration agent, he didn’t have the right state of mind. I think I’ve given him an opportunity to give me the story that he wants to give me so if he hasn’t provided any information now it’s going to be very difficult if there is any other information to be provided later on.
But what that is representing is going to happen is that there will be a fresh approach to the case, that is, that the material will be looked at itself rather than the previous decisions. That did not happen. The best way that I can explain this to your Honour is by way of an example. If your Honour goes to page 3 of the decision, your Honour will see at the bottom of the page there is a dot point – this is a summary or a specification by Ms Barrio of the current request information. It includes at the bottom of the page a dot point that says:
Alleged inconsistencies not being inconsistencies. The agent claims that the previous request contained a mistake in relation to where [the plaintiff] had obtained his visa. He always maintained he had gone to a jeweller store whilst the assessment talked about him going to the Australian High Commission –
If your Honour then goes to the actual material that was put before Ms Barrio on this request on that point. It is at annexure K to annexure C. If your Honour has tagged the mother’s statement, it is the next document on from that, a “Summary of Five Flaws in the DIAC Minute”. This was a document prepared by Mr Pistol to Ms Barrio setting out flaws in the ministerial intervention request decision of 27 May. One of those is item 3:
It is clear that some of the alleged inconsistencies are not inconsistencies at all. For example the ‘bribery in Colombo’ issue discussed at page 6 of the DIAC Minute.
Then your Honour will see what is said there. So that is a claim that not that the previous request contained a mistake but that the previous minute contained a mistake. It has been recorded by Ms Barrio as being a mistake in the request. If one goes back to the - - -
HER HONOUR: Would I be right in saying a fair inference to draw from the minute prepared by Ms Barrio on 19 June is that she appears to have had access to the “Summary of Five Flaws in the DIAC Minute” document?
MR PRINCE: Yes.
HER HONOUR: At this stage you are developing a procedural fairness ground in a context in which you acknowledge that in some circumstances there is no obligation to accord procedural fairness at all.
MR PRINCE: Not in these circumstances though.
HER HONOUR: Understanding that, Mr Prince, nonetheless, we want to keep the argument within reasonable bounds.
MR PRINCE: Yes, your Honour.
HER HONOUR: Now, the plaintiff has had a document, apparently prepared by Mr Pistol, setting out what he asserts are flaws in the earlier decision-making process undertaken by officers of the Department assessing the earlier requests, is that right?
MR PRINCE: Yes.
HER HONOUR: That material appears to have been considered by Ms Barrio because she refers to it in the minute of 19 June.
MR PRINCE: Although mistakenly.
HER HONOUR: That may be relevant to your ground of Wednesbury, but how is it relevant meaningfully, Mr Prince, to an argument as to denial of procedural fairness?
MR PRINCE: There would be answer that even if she had failed to put to him a particular issue about – this particular issue, the Colombo issue. I am sorry, I will take a step back. Any procedural defect is probably cured in this respect by having taken into account the submission that was made by Mr Pistol, in any event. I accept that. It has not precluded Mr Pistol from making a submission which ultimately was dealt with, although incorrectly. That is the answer to that, your Honour.
HER HONOUR: Yes.
MR PRINCE: But, the main point, I suppose, of a procedural fairness issue is, although I still rely on matters which are in my written outline of submissions - - -
HER HONOUR: Take me to those matters. At paragraph 90 of your written submissions you say this:
It may be seen that there is an arguable case that the Plaintiff was denied procedural fairness when particular regard is had to –
and then you nominate a large number of paragraphs and subparagraphs of your submissions.
MR PRINCE: Yes.
HER HONOUR: I need you to do a little more than that, Mr Prince.
MR PRINCE: For example, I did that so that I did not repeat the things that I had said and I was observing problems along the way with each decision.
HER HONOUR: Mr Prince, your written submissions analyse in a careful way each of the assessments made of requests submitted on your client’s behalf and that request which was initiated within the ministerial intervention unit arising out of information concerning his mental health status.
MR PRINCE: Yes, your Honour.
HER HONOUR: I have before me claims for the issue of orders nisi and certain other relief arising out of the assessment of the requests of 27 May and 4 June.
MR PRINCE: Yes, your Honour.
HER HONOUR: Directing your attention to a contention of a denial of procedural fairness in relation to those determinations, what, in addition to the matters that you have put to me, do you rely on?
MR PRINCE: Your Honour, the decision of 19 June itself adopts and approves the previous ministerial intervention request decisions. That adoption and approval of those previous determinations must carry with it that those matters were a part of the assessment by the decision-maker, that is, by accepting and adopting and approving those previous ministerial intervention requests and attaching them, indeed, to the minute which goes to Mr Leyden what the decision-maker has done is to take into account those matters which were contained in the previous determinations and expressly said that the matters stated in them were true. In respect of each of those requests there are a series of statements of fact, for example, which have never been put to the plaintiff.
HER HONOUR: Mr Prince, you have, as I understood it, resiled from any contention that the obligation in terms of procedural fairness was an obligation to give particulars of any information upon which the person making the assessment may rely in determining that the request fell outside the guidelines.
MR PRINCE: Now, if I am wrong in that, you had better tell me. I do not think that is as far as I went, your Honour.
HER HONOUR: Mr Prince, let us start again and you tell me precisely the content of the obligation of procedural fairness that you say was in the circumstances of this case owed to the plaintiff?
MR PRINCE: That matters or issues which were to form a part of the reason for not referring the matter to the Minister ought to have been put to the plaintiff or his representative within the process which was adopted by Ms Barrio, that is, that there was an expectation - - -
HER HONOUR: One moment, please. That is, there was an expectation?
MR PRINCE: That matters which were of concern to Ms Barrio would be identified and clarification sought.
HER HONOUR: And that depends on the telephone conversation of 17 June?
MR PRINCE: Precisely.
HER HONOUR: I understand that.
MR PRINCE: I am sorry, while I am on the point – and that telephone conversation on 17 June and indeed what is said at the outset of the interview itself and during the course of the interview followed on from – if I could just take your Honour briefly to annexure A to the affidavit of 19 June?
HER HONOUR: Yes.
MR PRINCE: That is, there is an invitation – this process of telephone calls stems from an invitation to engage in a process of discussion, really, of any concerns. That invitation is taken up and then the process evolves from there throughout then the interview.
HER HONOUR: That invitation, together with the content of the telephone call to Mr Pistol of 17 June and the statements made by Ms Barrio in the course of the interview that followed that telephone conversation, in combination, you say, gave rise to an obligation in the circumstances of this case akin to an obligation of the sort that is imposed on the Tribunal under section 424A. You hesitate, Mr Prince.
MR PRINCE: Only because 424A - - -
HER HONOUR: I want to understand what it is - - -
MR PRINCE: No, no, your Honour is all right up to the point “akin to section 424A”. I do not say that – 424A has a wealth of its own problems.
HER HONOUR: Yes. All right. Let us put it this way. That background to which I have referred gave rise to an obligation on Ms Barrio to identify any matter that she considered may be a reason for concluding that the request made on 4 June did not meet the Minister’s guidelines?
MR PRINCE: Yes.
HER HONOUR: All right. I understand that.
MR PRINCE: Yes. That is why the paragraphs which are cross-referenced from paragraph 90 of my written submissions - - -
HER HONOUR: Now, if you have a good point in there in terms of the facts, Mr Prince - - -
MR PRINCE: Do not let it get lost.
HER HONOUR: Yes.
MR PRINCE: Yes. Your Honour, I will just highlight the good points. Paragraph 35(a) is referring to the third minute which is adopted as being correct. If your Honour goes to (c), it appears that there is a continued adoption of the error in the previous decisions or the fact as stated in the previous decisions that the plaintiff’s home town was Matale when in fact it was not. Then 35(e) again picks up the article in the World Socialist Website. I have said in my written submissions that that is important because the guidelines require that any country information be sourced from the internal departmental office and the plaintiff has never been given a copy of this World Socialist Website information to be able to comment on it.
HER HONOUR: Mr Prince, by the time of the telephone interview that followed the discussion with Mr Pistol on 17 June, these concerns relating to the disposition of earlier requests by various departmental officers were known to Mr Pistol. Indeed, he had identified in a methodical way what he asserted were the flaws in the reasoning. Bearing in mind I am concerned at the moment with the contention that the process denied the applicant procedural fairness in relation to the disposition of the request of 4 June, these do not seem to me to be strong points in support of the contention. You see why?
MR PRINCE: Yes, I do, your Honour, I do. In answering that, could I just take your Honour to page 2 of the 19 June decision in the middle of the page above the heading “Current request information”.
HER HONOUR: Yes.
MR PRINCE: The decision-maker makes it clear that she is not commenting on claims made “regarding the processes in relation to the request of 28 May 2009” which is where those answers, as it were, have been made, that is, that the concerns about the procedural unfairness in the previous ministerial intervention request determinations which culminate in the submission of 28 May 2009 have not been considered by the decision-maker. So that you have a situation where the plaintiff has not been told that the previous decisions are going to be affirmed. In fact, it appears that they are led to believe that the previous decisions are irrelevant. The previous decisions are then affirmed, including all of the factual matters and processes and all the like, and in doing so, regard is not had to the matters which are expressed to be of concern, including the procedural fairness flaws, in the 28 May 2009 letter.
HER HONOUR: Mr Prince, I am not sure that it is accurate to speak of affirming the earlier decisions. Ms Barrio was making a decision or was assessing the request of 4 June. In doing that she refers to having reference to all that had gone before. Quite what she intends to convey or what she does convey by the statement that she will not comment on the claims made by Mr Pistol or Mr Yoo in relation to processes concerning the request of 28 May because those matters were before the court, is not clear. But what is apparent when one goes over to the material under the heading “Current request information” is that Ms Barrio refers to matters including the documents setting out the suggested flaws in the earlier dispositions.
MR PRINCE: They are different documents, your Honour. The five key flaws which I have taken your Honour to was the information that was contained – was a separate document which was advanced after the previous determination, after the 27 – sorry, I will take your Honour back. The five key problems document, which is annexure K to the affidavit of 19 June is a separate and different document to the request of 28 May 2009 which is LP1.
HER HONOUR: Yes, I understand that LP1 is the request lodged on 27 May near close of business, determined on 29 May.
MR PRINCE: Yes.
HER HONOUR: The five key flaws document was one of the submissions accompanying the further request which came into being after the present proceedings were commenced. Is that correct?
MR PRINCE: Correct.
HER HONOUR: The matter that I am raising with you, Mr Prince, in the context of your challenge on procedural fairness grounds is that, in response to the request that Ms Barrio issued to the plaintiff, various opportunities were afforded to him to put such material as he cared before her for assessment. The evidence establishes that he had a legally qualified person assisting him in this task and that legally qualified person identified a number of flaws in that which had gone before, and it is clear that Ms Barrio had regard to that document. Against all of this background, taking me to the circumstance that at an earlier point regard had been had to material published on the socialist website is a point which does not seem to me to have a great deal of force in the context of this aspect of your challenge.
MR PRINCE: Your Honour, those concerns about, let us say, the socialist website either were or were not, I cannot remember, but they would have been dealt with in LP1. The problem is that Ms Barrio – sorry, the five key problems with the process at document annexure K was in addition to the matters which had been outlined in the 27 May 2009 document, LP1. It had been said to Mr Pistol that the 27 May 2009 document, that is, LP1, would be taken into account by the decision-maker in arriving at her decision, that is, that she would look at - - -
HER HONOUR: Where is the evidence of that?
MR PRINCE: If your Honour goes to the file note - - -
HER HONOUR: Is that the material you have already taken me to, in which case there is no need to do so again.
MR PRINCE: It is.
HER HONOUR: Yes, all right.
MR PRINCE: I think it is in the file note of 16 June.
HER HONOUR: All right. Now, are there other matters that are - - -
MR PRINCE: Can I just finish developing that line, your Honour.
HER HONOUR: Well, I think you already have. Are we not going around in circles, Mr Prince?
MR PRINCE: I hope not, your Honour. I just want to make it clear that the five key points was a different document. That is relevant because Ms Barrio told Mr Pistol that she would look at the material in his submission of 27 May 2009, would not look at the previous decisions but the information and then in the decision she looks at the previous decisions, accepts the facts stated in them as accurate and the processes as correct, but does not look at the criticisms of those - - -
HER HONOUR: One moment, I am sorry, Mr Prince, but why does her acceptance or otherwise of the processes in them bear relevantly on any matter before me on this application?
MR PRINCE: Because the decision which is under challenge includes as part of its reasons an adoption of decisions which we say were flawed and processes which we say - - -
HER HONOUR: You have already developed that argument. I do not need you to repeat it.
MR PRINCE: Yes.
HER HONOUR: All right. Now, is there anything further?
MR PRINCE: No, your Honour. In any event, except for this, the matters that have just been the subject of my submissions on procedural fairness are all matters which ultimately may go to a question of whether or not the plaintiff succeeds on establishing procedural fairness, but they do not establish that there is no arguable basis for advancing a submission that, firstly, procedural fairness may be involved in the decision and, secondly, that the evidence may disclose a denial of procedural fairness. At least in respect of the – certainly the fact that the matters which I took your Honour to in the decision itself, namely, the perception of Ms Barrio that the new information was available in respect of the previous protection visa applications and the RRT, is a perceived fact that should have been put and which could have been answered.
HER HONOUR: All right. Well, look, we have been over this ground.
MR PRINCE: I am sorry, your Honour, I did not mean to keep going over it. The Wednesbury grounds I think your Honour understands in the sense that we have touched on them in some of the other grounds, but the really key points or the most obvious example is the finding in the 19 June decision. Just before I leave procedural fairness, I should say to your Honour that it is still in issue. There is still a challenge to the 28 May 2009 decision in the amended application and so some of the matters that I have put to your Honour and which are in my written submissions are relevant to whether there is a denial of procedural fairness in that decision. Whether or not it has been cured by the later decision is going to be a matter of argument because the restraint - - -
HER HONOUR: When you say “is going to be a matter of argument”, you are at the moment in the process of making out a case for the issue of orders nisi directed to the second defendant on the ground that he denied procedural fairness to the plaintiff.
MR PRINCE: Yes.
HER HONOUR: Now, moments ago you seemed to be seeing this as some sort of preliminary joust, Mr Prince. It is not that. It is necessary for you to make good the case that the orders should issue.
MR PRINCE: I am sorry, your Honour, yes.
HER HONOUR: Now, as to the earlier decision, the Minister says, well, the relevant decision is the decision of 4 June. On the face, of it there is some merit to that, is there not? The plaintiff is seeking to have the Minister consider his request for intervention under 48B and 417 of the Act. The obstacle that he has encountered in relation to the request that he made at close of business on 27 May was that the officers of the Department failed to refer it to the Minister having formed a view that the request did not fall within the relevant guidelines. Following that, a further request was made, an invitation was extended to the applicant to put such matters as he cared to in support of his further request.
Your argument is this, is it not, there were matters put in the request of 27 May, which is LP1 to the affidavit of Mr Pistol sworn on 1 June, that were not repeated in the submissions advanced in respect of the request made on 4 June, the reason for that being an understanding that they would be taken into account. On your reading of the minute signed by Ms Barrio on 19 June, annexure K to the affidavit of Mr Pistol sworn on 19 June - - -
MR PRINCE: They were not.
HER HONOUR: - - - that material was not taken into account, and that may depend upon a reading of the decision, but that is the basis of it, is it?
MR PRINCE: The decision of 27 May or 29 May is separately challenged. The declaration that is sought is that the guidelines were not applied on either/or 29 May 2009 and 19 June.
HER HONOUR: Yes.
MR PRINCE: That declaration would obviously be significant because the material in the 27 May application, the LP1, if that has not been considered in the 19 June decision and it was appropriate to not consider it in the 19 June decision, then that has been lost in the void. So it has never been looked at.
HER HONOUR: Mr Prince, I think I understand this point. It is the point that I put to you a few moments ago. Is there something further you want to - - -
MR PRINCE: Only that then opens up the need for a declaration in respect of the decision of 29 May. It would not simply be necessarily simply be answered by a declaration in respect of 19 June.
HER HONOUR: Yes, I understand that point, Mr Prince.
MR PRINCE: Thank you, your Honour.
HER HONOUR: Can we move on?
MR PRINCE: Yes, your Honour. In terms of Wednesbury unreasonableness, your Honour, I think I have covered the main points that I want to make. They are set out in detail in my written submissions but, in particular, the most significant point really is that the material in respect of the mother and, indeed, the corroborative material, although it might relate to matters in time occurring prior to the RRT and the PV application, the corroboration is significant itself and as it stands in its own right as information. The finding that that information was available previously and that the absence of an explanation as to why it was not provided to the RRT or the delegate is patently illogical, irrational and that is the best Wednesbury grounds, your Honour.
HER HONOUR: The latter, may I respectfully suggest, may not be thought to be your best ground since it would seem, for the reasons I suggested to your earlier, an extraordinarily strained reading of the minute to conclude that Ms Barrio meant to convey criticism of the applicant for not including in his protection visa application information concerning an assault upon his mother that had not then occurred. That seems to me to be an extraordinarily strained way of reading the document because it is patently absurd.
MR PRINCE: Well, your Honour, that would defeat almost every – the Wednesbury unreasonableness extended ground - - -
HER HONOUR: No, Mr Prince, it would not defeat every assertion of Wednesbury unreasonableness.
MR PRINCE: The absurdity itself, in my submission, your Honour, does not establish that there is no absurdity. If I could take your Honour to page 6 of the decision - - -
HER HONOUR: Mr Prince, I think we may be at cross-purposes. I am having difficulty understanding the second aspect of your contention. I do not intend to repeat it, Mr Prince. I understand your contention that I am to read Ms Barrio as being critical of the plaintiff for his failure to include in a protection visa application submitted in November 2005 material including the police report relating to the assault upon his mother that occurred years after that event. I understand that is your submission as to the way the document is to be read. May I take up with you what I would see to be perhaps the stronger of your arguments which is the conclusion that the material concerning the assault on the mother did not involve a significant change in circumstances. I put that globally. Can I now take that matter up with you, Mr Prince?
MR PRINCE: Yes, your Honour.
HER HONOUR: I understand that submission, but the difficulty that I have with it is Wednesbury is a very confined ground.
MR PRINCE: Yes.
HER HONOUR: One view that is perhaps open is that the plaintiff made claims for protection in his application that were considered on the review of the delegate’s decision by the RRT concerning his well-founded fear of persecution arising out of his political beliefs and his involvement both with the trade union and with the UNP, that the material, including the recent assault on his mother, did not involve a significant change in the sense of the claim that was made concerning his fear of persecution in the event of return. Now, one might well see a different view that would be available to a person assessing such an application, but - - -
MR PRINCE: That would also be a strained – I mean, that would be strained in the other direction, in my submission, because there was a council election in Sri Lanka which preceded the attack on the mother, there was a visit to a different house, or to his family house in Matale, the gentleman in question was driving a car with a government insignia on it, there were armed men looking for the plaintiff, there was an attack, the plaintiff’s mother was in hospital and assuming that the RRT and the delegate were right and when they assessed his claim there was no real threat to him, the material that is advanced must represent a change in circumstances because if it is not rejected as not credible, and it is not, then it must indicate that there is a current threat to him. That must necessarily
involve a change in circumstances from the facts accepted by the RRT that there was no threat to him.
So that if one accepts the findings of the RRT and the delegate that there was no risk of persecution for Convention grounds, then what is contained in the material advanced in respect of the attack on the mother must indicate a change in those circumstances.
HER HONOUR: All right. Well, I think I understand the point.
MR PRINCE: In terms of reading the decision-maker’s reasons, I do not just rely on that paragraph on page 6, your Honour, I rely on reading the whole of the rest of it, including statements on page 7 that:
There is no new information that may raise any doubts on the conclusions reached by the delegate deciding the PV application and the RRT –
Then the third-last paragraph on page 7:
[The plaintiff] continues to have a strong subjective fear that he may be harmed if he returns to Sri Lanka. However, he has not presented any claims that would indicate that there are substantial grounds for believing that there is a real risk that he will be subjected - - -
HER HONOUR: Yes, I am mindful of that.
MR PRINCE: Yes. So that, in my submission, the decision-maker has found that that material does not constitute new information or new material.
HER HONOUR: All right. Yes.
MR PRINCE: Thank you, your Honour.
HER HONOUR: Yes. Mr Potts, could we start with the Wednesbury/irrationality ground and with the issue of the treatment of the material concerning the assault on the mother?
MR POTTS: Yes, your Honour. Can I simply preface that with this remark, your Honour. My learned friend repeatedly referred to the minute which is annexure K to the 19 June affidavit as the decision.
HER HONOUR: Yes.
MR POTTS: In my respectful submission it is misleading to refer to it in that way so as to equate it with, for instance, judicial reasons for judgment or a decision record of a tribunal.
HER HONOUR: Yes.
MR POTTS: It is not of that character. It is more akin to something like a report to a board or perhaps a research memorandum your Honour’s associate might prepare for your Honour. It is prepared, effectively, as an internal advice passing from Ms Barrio to Mr Leyden, the second defendant. In my respectful submission, your Honour would need to read it in that way.
HER HONOUR: Yes.
MR POTTS: With that in mind, the injunction that this Court presented in the Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 - I believe your Honour was handed a copy of that with the bundle that came up. It was separate to the main bundle, your Honour.
HER HONOUR: Yes. Where in Liang?
MR POTTS: At page 272, your Honour. Your Honour will see in the first paragraph of that page in the second line:
It was said that a court should not be “concerned with looseness in the language ... nor with unhappy phrasing” of the reasons of an administrative decision-maker. The Court continued: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
In my respectful submission, that injunction applies all the more powerfully when one considers in this context one is dealing with a non-statutory guideline and an internal memorandum or minute which your Honour should not equate with a fulsome and complete statement of all the reasons why Ms Barrio may have in the first instance thought this case did not fall within the guidelines, nor why Mr Leyden on reviewing not only those written recommendations but the documents attached to it may have himself come to the view which is ultimately the one challenged in these proceedings. So, with that rather lengthy preface, your Honour, can I come to grips with your Honour’s point which is the Wednesbury unreasonableness point?
HER HONOUR: Yes.
MR POTTS: Your Honour has the minute which is annexure K, being 19 July which your Honour has been taken to a number of times and I will not labour it but can I simply note on page 7 that the comment or the expression used by Ms Barrio is that she has found there is not “a significant change in the circumstances” so she qualifies, and that is expressed in a global sense, and she is expressing that conclusion in relation to the plaintiff’s circumstances globally and holistically and she has formed an opinion that the change is not significant and so she uses that qualifying word, which in my respectful submission is “significant”.
Then in the next paragraph it follows that in the third line. Your Honour sees she used the words, “substantial grounds for believing”. So, again, she is using words like “significant” and “substantial” which inject a degree of subjectivity into the analysis and it is none the poorer for that, your Honour, because as your Honour understands, in my submission, what the guidelines really require is for officers of the Department to form an opinion about whether or not this case falls on one side of the line or another and the Minister has effectively said in advance, “I will rely upon your opinion and please only refer to me – I only wish to consider exercising my power in cases where in your opinion it falls on the correct side of the line”.
The question your Honour, with great respect, has to embark upon here is in the overall spectrum of decisions, one end being decisions favourable to the plaintiff, at the other only this, unfavourable, does this lie outside the bound of anything that a rational decision-maker, acting properly could have concluded. That is, in my respectful submission, a very stringent test.
HER HONOUR: It is an extremely stringent test. The matter that troubles me, Mr Potts, recognising the very great force of all the matters that you have put to me, is that there was material before Ms Barrio and Mr Leyden that does not appear to be the subject of challenge which, as I understand it, was at least on the face of matters credible evidence that the plaintiff’s mother, as recently as 8 February of this year, had been threatened in connection with identifying the whereabouts of the plaintiff. It is in that context that the conclusion which it compendiously appears to be that there is no objective basis for the plaintiff’s fears of persecution either at the hands of LTTE or the UNP seems surprising.
MR POTTS: Can I make two points in response to that, your Honour?
HER HONOUR: Yes.
MR POTTS: The first is there were claims presented initially in the protection visa and to the Tribunal that the family had been approached or threatened in relation to the applicant. I will see if I can turn it up for your Honour but just before I do the other point I wish to make is in respect of the - your Honour may get some assistance, in my respectful submission, from the 16 June 2009 file note which is annexure B to Mr Pistol’s 19 June 2009 affidavit as to the thinking of Ms Barrio, although it may not ultimately have found felicitous expression in the minute of 19 June and in particular your Honour sees at the close of the fourth paragraph there where she says, “There are no new claims”.
That seems to have been Ms Barrio’s thinking at that point and in my respectful submission it may go some way to explaining the infelicity in the expression in the 19 June minute that Ms Barrio’s perception was, notwithstanding that she was plainly aware of this new evidence concerning the mother because it is referred to in terms of the minute, and it is plainly referred to and considered.
HER HONOUR: Yes.
MR POTTS: Really what she considered was, in a sense, although it might be new information it was not a new claim and it was not something that notwithstanding it was new plainly in the evidential sense that something more had happened, it was not new in the sense that it had not happened before.
HER HONOUR: Yes. Accepting that, Mr Potts, it is the conclusion that there is no reason to think that there is any basis for the acknowledged subjective fears of persecution should he return to Sri Lanka in a context where there is unchallenged evidence, for present purposes at least, that his mother has been terrorised by persons who are looking for him.
MR POTTS: Your Honour has to read that, with respect, in the context of what was also said at the foot of page 6 of the minute of 19 June.
HER HONOUR: All right. Let me just go to that.
MR POTTS: Your Honour sees there the last full paragraph begins:
Even if I were to find that there are plausible reasons for him not providing the information earlier –
As an aside, your Honour, that, with respect, deals with the objection about the finding that had not been available earlier because Ms Barrio goes on to consider a “what if I’m wrong” scenario, in that respect and deals with the information in substance. But, your Honour sees in the second bullet point there:
the information provided in relation to 1) harm suffered at his workplace 2) the threats and treatment from [that particular gentleman] and 3) threats or harm to [his] mother is connected to the convention related claims that [he] presented at PV and RRT stages.
This comes back to what I was saying to your Honour about the earlier file note:
It does not constitute new claims but provides additional information on claims assessed at the PV and RRT stages - threats, intimidation, harassment. I am not satisfied if would enhance [his] chances of making a successful protection claim. There is no new information that may raise any doubts on the conclusions reached by the delegate deciding the PV application and the RRT member that [he] may have been harassed because of his political views and activities as a Union Representative and a UNP member, but the chance that he would be persecuted for reasons of his political opinion in the reasonably foreseeable future, were he to return to Sri Lanka, would be remote or insubstantial –
Now, that may be a conclusion your Honour would not have reached on the evidence. It may be a conclusion I would not reach on the evidence, but with respect, that is not to ask the right question. The question is whether or not, in the circumstances, this is so far outside the bounds of any reasonable decision-maker applying the guidelines that that conclusion was not open or arguably not so.
Your Honour sees that essential in substance the way in which Ms Barrio left it was she accepted a subjective fear but did not think there were sufficiently substantial grounds to give that fear a well-founded character.
HER HONOUR: It may be I have not properly appreciated the evidence concerning the incident involving the mother. It is just, on the face of things, Mr Potts, to conclude as I read Ms Barrio’s minute and not submitting it to any fine textual analysis, but as I understand the burden of it, it is her recognition that there exists a subjective fear of persecution but a view that there is simply nothing to lend colour to that objectively in circumstances where there is material to suggest that as recently as 8 February the plaintiff’s mother’s home was the subject of an arson attack and she, the mother, was threatened in connection with the plaintiff. How that is not relevant to an assessment of the chance that in the reasonably foreseeable future were he returned to Sri Lanka he might be persecuted it is difficult to see.
MR POTTS: Your Honour, the answer, in my respectful submission, is the assessment that is made for instance at page 7 of the minute, it is a conclusion expressed in terms of the enhancing of chances of making a successful protection claim. There are a number of elements to a protection claim of which persecution in an area is only one. There are issues such as internal relocation and all those sorts of matters that go to – there are a number of integers in a protection claim and so, in my respectful submission, Ms Barrio’s conclusions are expressed in that sense that notwithstanding there may be elements of a claim to protection that can be satisfied her conclusions ultimately are it would not enhance his chances of making a successful protection claim.
In my respectful submission, that would, in the context, be equated with a successful claim under section 65 to a Protection (Class XA) Visa. As your Honour is well aware, and I do not need to tell your Honour, that comprises a whole raft of considerations and elements. I think that is probably the best answer I can give to your Honour on that point.
HER HONOUR: I understand that. Yes.
MR POTTS: May I pass to deal with the other grounds, briefly, if I may, your Honour?
HER HONOUR: Yes, by all means.
MR POTTS: Your Honour understands I make a root and branch challenge to this sort of judicial review and I will not repeat that. Your Honour has understood that submission.
HER HONOUR: Yes, I do.
MR POTTS: I embrace, of course, what Justice Lindgren said in Raikua and I will not pause to repeat that. Dealing with procedural fairness - - -
HER HONOUR: Can I just interrupt? As I understand it, Mr Potts, you firmly maintain the submission that his Honour in Raikua correctly states the position with respect to judicial review of assessments under the ministerial guidelines but for present purposes you acknowledge that the point is an arguable one and in the circumstances if the plaintiff otherwise made out a case you would accept it would be an appropriate case in which I might make the orders that are sought.
MR POTTS: I do not wish to say anything against that, your Honour. My client would not wish to make a formal concession to the effect.
HER HONOUR: No. All right.
MR POTTS: I have said all I can say on that, your Honour, and I will not delay further on that. In that regard, your Honour is well aware of the case Mr Justice Hayne was managing in another context.
HER HONOUR: Yes, I am.
MR POTTS: I do not wish to say any more on that.
HER HONOUR: All right. Yes.
MR POTTS: May I return, if I can, to procedural fairness?
HER HONOUR: Do.
MR POTTS: My learned friend made a concession that there may well be cases in the section 48B and 417 context where no obligation of procedural fairness arises. That, with respect, is an important concession because it means there must be something in the circumstances of this case that alter the situation and give rise to some obligation of procedural fairness at a factual level. Consistent with my root and branch challenge, I dispute any obligation that procedural fairness arises but passing over that on the same basis, your Honour.
HER HONOUR: Yes.
MR POTTS: In my respectful submission, the factors that my learned friend took your Honour to do not evidence anything in this case which would give rise to an obligation of the kind that my learned friend put to your Honour and it was really cast in terms that are very similar to the way in which this Court framed a duty arising in terms of the Refugee Review Tribunal under section 425 which is the obligation to afford a hearing. In the case – I do not have a copy for your Honour, but it is SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. I say that because he has cast – when your Honour asked him how he formulated that obligation he cast it in terms drawn almost word for word from the way in which the Full Court of this Court articulated that obligation in the context of the Refugee Review Tribunal.
As I have said in writing, your Honour, the important distinction between that case and this is the existence of a statutory regime governing quite carefully and closely the procedures to be followed by the Refugee Review Tribunal. That obligation is an incident of section 425 which obliges the Tribunal to invite a refugee applicant for a hearing and to present arguments and make submissions at that hearing.
Now, here, in my respectful submission, the Act does not contemplate an application for ministerial intervention. At best, it recognises that there may be requests. A request is a qualitatively different thing from an application. There is no procedure attaching to the making of a request beyond what is in the guidelines which simply provide that it must be in writing. In that context my learned friend points to things apparently said and done by Ms Barrio. Can I put this submission at this level of generality, nothing said or done by Ms Barrio in any of the material to which your Honour was taken could reasonably give rise to an expectation or otherwise give rise to an obligation of the character that my learned friend relies upon.
HER HONOUR: I understand that, yes.
MR POTTS: Yes. Dealing finally with the impropriety of purpose ground, your Honour, there may well be cases in which one can infer from the manner of the exercise of a power some impropriety occurs because the manner in which it has been exercised betrays the impropriety. So, for instance, if I were a town planning official, given power to impose conditions on development consent and I imposed a condition on a development consent saying, “I won’t let you build more than two storeys because you will block the view from my office”, plainly, that would betray an impropriety of purpose because the purpose of the power is not to preserve my view, it is to impose conditions consistent with the statutory scheme that it operates under.
Here my learned friend says, well, Ms Barrio has travelled beyond the guidelines, therefore your Honour must conclude there is impropriety of purpose. With great respect, that does not necessarily follow. Your Honour would need to look and scrutinise with care how it is that Ms Barrio is said to have transgressed the guidelines and to be able to conclude from those alleged transgressions that she has misconceived the nature of her purpose. I have made the point in writing, your Honour, it is really Mr Leyden whose purpose your Honour must impugn because it is his decision, or so-called decision. Your Honour understands I take a point in that respect.
HER HONOUR: Yes, I do.
MR POTTS: But, adopting the language of my learned friend, it is his decision that needs to be impugned and your Honour would need to be satisfied that in reviewing all the material, not simply the minute but the
other material, Mr Leyden did not understand that he was to act consistently with the purpose articulated expressly in the guidelines. Unless I can further assist your Honour, those are my submissions.
HER HONOUR: Thank you, Mr Potts. Yes, Mr Prince.
MR PRINCE: Thank you, your Honour. Just going back to the decision of 19 June for a moment, I would also ask your Honour to read the decision as a whole.
HER HONOUR: Yes.
MR PRINCE: What your Honour sees in the last paragraph on page 6 is an alternative view if there were plausible reasons for him not having provided the information earlier. All of that contemplates that it is information that would have been available previously and that is where one of the problems occurs because if your Honour goes to the guidelines, there are two alternative paths for other claims. One is in 175.1 and one is in 175.2. What Ms Barrio has done is to only apply 175.2, not 175.1.
HER HONOUR: Just bear with me a moment. I am sorry. Now, what did you say?
MR PRINCE: There is a difference between 175.1 and 175.2.
HER HONOUR: Yes.
MR PRINCE: Ms Barrio seems to be considering the matter all through the rubric of 175.2, that is, that the information was previously available. She does not appear to have looked at 175.1. An assessment about whether or not certain information would enhance protection claims, viewed on the assumption that the information was available previously and had not been adduced, carries with it a requirement effectively to bring into question the previous RRT decision and to challenge it in some way which is a heavier task to undertake than that contemplated in 175.1 where one would be looking at the prospects on a fresh application for protection.
HER HONOUR: Yes. It is clear, is it not, when you read the minute in context that the approach that Ms Barrio takes is to consider that the additional information does not involve a new claim?
MR PRINCE: Yes. She says that it is connected to the Convention related claims that a plaintiff presented at the PV and RRT stages. It does not constitute new claims but provides additional information. That, in itself, is a misunderstanding of that part of the guidelines at 175.1 and 175.2 which requires new information to be sorted in that way.
HER HONOUR: This, I think, Mr Prince, is coming to the matter that was raised very much earlier this morning involving a question of whether or not the material concerning the mother amounted to a new claim, as you would assert it does, or whether it can be classified, as Ms Barrio appears to have classified it, as additional information going to support an existing claim, being a claim to fear of persecution on the grounds of the plaintiff’s political beliefs, as I would understand the matter.
MR PRINCE: Yes.
HER HONOUR: I am just not quite sure where this is taking us, Mr Prince. The heart of your Wednesbury ground, to which these submissions appear to be directed, is as to the asserted unreasonableness of treating the information concerning the attack upon the mother as not enhancing the plaintiff’s claims of making a successful protection claim, surely?
MR PRINCE: Yes.
HER HONOUR: If that is so, how do you deal with the response which is to firstly recognise the very confined area for operation of the Wednesbury principle and the observation that making a successful protection claim requires an application establishing a number of matters which would include the absence of the opportunity to relocate. I am not putting it precisely, but you understand what I am putting to you, Mr Prince.
MR PRINCE: Yes, your Honour.
HER HONOUR: The assessment subjectively formed by the departmental officer that the material concerning the attack upon the mother would not enhance the claims made by the plaintiff for a successful protection claim, which is highlighted in the second complete sentence on page 7 of annexure K, is an assessment that the Minister says was reasonably open.
MR PRINCE: Your Honour, first, that is by reference to some prospect that there may be unstated reasons that the decision-maker had regard to which are not contained in the minute.
HER HONOUR: Yes, I think the Minister would happily embrace that, Mr Prince. The guidelines are broad. There is no obligation to give reasons at all of subjective assessment that the officer forms.
MR PRINCE: But they have.
HER HONOUR: But they have and what the officer has chosen to do, and indeed has done so by way of highlighting the passage appearing on page 7 of the minute of 19 June, is that the information would not enhance, in that officer’s assessment, the plaintiff’s chances of making a successful claim.
MR PRINCE: That should not be read, in my submission, in isolation from the rest of the minute and to assume that that line then opens up the prospect that matters which are not in evidence before your Honour were taken into account, such as things like relocation, is speculative and does not assist because the reasons that are given for the assessment in the minute is what Mr Leyden acts on in making the decision.
HER HONOUR: Mr Leyden, as Mr Potts correctly points out, is to be understood to rely not only upon Ms Barrio’s report contained in her minute dated 19 June, but on the documents that are annexed to it, surely?
MR PRINCE: If your Honour goes to page 8 of the document, your Honour will see that the way the document is framed is that Ms Barrio sets out her assessment in the conclusion and then Mr Leyden, having read what goes before, agrees with the assessment. There is just simply nothing to indicate that material extraneous to what this document and the assessment that is ultimately made – their attachments - - -
HER HONOUR: The attachments are noted in the annexure to the minute. Mr Prince, I would not conclude that Mr Leyden’s concurrence with Ms Barrio’s assessment was based upon reading the minute and not having regard to any of the attachments it seems to me - - -
MR PRINCE: It is Ms Barrio’s assessment that he agrees with. “I agree with the assessment”.
HER HONOUR: Yes, he records that on the minute and then - - -
MR PRINCE: The assessment is what appears in those two paragraphs in 8.
HER HONOUR: No, it is an agreement that the request falls outside the guidelines for referral, Mr Prince.
MR PRINCE: It is the assessment – that must mean something:
It is my assessment that:
The whole of that needs to be understood as what he is agreeing with and that, secondly:
not that he has provided information which can be overcome by other factors, but that he has not provided any information which could enhance his claims. That is in the context of the guidelines which say that a decision-maker should not be making a complete assessment of whether or not a person is entitled to protection through this process but considering the new material and simply assessing whether it would enhance the chances of making a successful claim, not whether it would mean that he would have a successful claim.
At that level of satisfaction, in my submission, it is plainly irrational to say that the material which has been provided would not enhance the claim, particularly when regard is had to the RRT decision itself which is in the annexure to the 7 July affidavit. I think it is page 13.
HER HONOUR: Yes.
MR PRINCE: At the last full paragraph on the page starting “The applicant”.
HER HONOUR: Page 13 – I have - - -
MR PRINCE: Sorry, page 40 - - -
HER HONOUR: I am looking at page 13, I believe, of the decision.
MR PRINCE: Of the Tribunal.
HER HONOUR: Yes. Its commencing paragraph is, “As a result of the ongoing LTTE attacks on Government” – page 13. Is that what you were directing me to?
MR PRINCE: Your Honour, the document is the decision – it is annexure C to the affidavit of Mr Pistol of 7 July.
HER HONOUR: I see, page 13 of annexure C, “By making these findings”.
MR PRINCE: Yes, that is in the first paragraph.
HER HONOUR: Yes, all right.
MR PRINCE: If your Honour goes to the last full paragraph on the page starting:
The applicant has also claimed that his wife has informed him that ‘unknown callers’ have been asking for him.
HER HONOUR: Yes.
MR PRINCE: And then the Tribunal says, “however, without further evidence”. That is a world away from the information and the claims that are being provided to Ms Barrio. So that even on that score, and seeking to justify the decision in that way, it remains irrational. Your Honour, in terms of the procedural fairness point, my learned friend referred to a decision in SZBEL as being similar to the type of formulation of procedural fairness that I would urge on your Honour in this case. Just because that is so and just because the obligation in that case was based on statute does not mean that the same obligation cannot arise at common law in a different context. There is a reference in my written submissions to Lam. It is not on the list unfortunately, but I have a copy for the Court and I have provided a copy to my friend this morning.
HER HONOUR: Yes. I am familiar with Lam. Is there some matter arising out of Mr Potts’ submissions that - - -
MR PRINCE: I just wanted to give your Honour a reference to paragraph 81.
HER HONOUR: Yes, all right, thank you.
MR PRINCE: The notion of procedural fairness there is similarly expressed to the way that I have urged upon your Honour so that it does not need to spring from the same source every time, that is, it does not need to come from a statute specifically or explicitly. It is a presumptive obligation at common law and if it is not displaced by a statute, then it will apply.
HER HONOUR: I think Mr Potts’ submissions commenced by drawing some comfort from the concession that in circumstances it is acknowledged that the assessment of a request for ministerial intervention would not attract any obligation of procedural fairness. That, I think, was the context in which the submissions that followed were made, Mr Prince, so that - - -
MR PRINCE: Your Honour, that, in my submission, would not give the Minister any proper comfort in this case because what may or may not be the situation in other cases is not really relevant here. In my submission, there is no fixed standard of procedural fairness and for the reasons I have already given in my submission there is a basis in this case.
HER HONOUR: All right. I want to give consideration to the matter. I am mindful that the proceedings were commenced on 1 June and that it is now 8 July and that the Minister has previously urged the need for some finality to come into the proceedings but, nonetheless, it is necessary for me to reflect on the matters that have been put today. I have in mind standing the matter over for judgment to 9.30 on Friday of this week.
MR PRINCE: Would your Honour excuse me from judgment. I will be overseas.
HER HONOUR: Yes, that is right, Mr Prince. Yes, I will excuse you. Does that cause you any difficulties, Mr Potts?
MR POTTS: No, your Honour. Can I raise one other matter?
HER HONOUR: Yes.
MR POTTS: Your Honour made an order on the last occasion expiring at 5.00 pm today.
HER HONOUR: Yes. Is there any difficulty with me extending that order until midday on Friday, 10 July?
MR POTTS: I have nothing to say on that score, your Honour.
HER HONOUR: Very well. I will stand the matter over for judgment to 9.30 on Friday, 10 July 2009. I continue the order restraining the first defendant, by his agents and delegates, from removing the plaintiff from the migration zone of the Commonwealth of Australia before midday on 10 July 2009.
MR PRINCE: May it please, your Honour.
MR POTTS If the Court pleases.
HER HONOUR: I will adjourn.
AT 12.45 PM THE MATTER WAS ADJOURNED
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/HCATrans/2009/161.html