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Gamaethige v MIMA S125/2001 [ 2002] HCATrans 71  (5 March 2002)

Sydney No S125 of 2001

B e t w e e n -

ROHAN KAPILA GAMAETHIGE

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

Office of the Registry

Sydney No S20 of 2002

In the matter of -

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

First Respondent

THE REFUGEE REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA

Second Respondent

Ex parte -

APPLICANT S20/2002

Applicant/Prosecutor

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 MARCH 2002 AT 12.06 PM

Copyright in the High Court of Australia

MR R.T. BEECH-JONES: If the Court pleases, I appear with my learned friend, MR L.J. KARP, for the prosecutor in the order nisi matter and the applicant in the special leave application. (instructed by McDonnells Solicitors)

MR S.J. GAGELER, SC: If the Court pleases, with MR G.R. KENNETT I appear for the respondent in the special leave application and I seek leave to appear for the first respondent in the order nisi application. (instructed by the Australian Government Solicitor)

GUMMOW J: Yes. We might hear from you on the application for special leave, Mr Gageler.

MR GAGELER: Your Honours, the decision of the Full Court turns on the construction - - -

GUMMOW J: I should say - no, sorry, I will come back to that.

MR GAGELER: Yes. The decision of the Full Court turns on the construction of legislation now repealed. The particular provisions with which your Honours had in the past become distressingly familiar are at page 56 of the application book and your Honours will recall that in Yusuf a majority of the Court expressed the view that jurisdictional error in the manner in which that has been traditionally understood and explained in Craig v South Australia falls within section 476(1)(b), but also recognised that section 476(2) constitutes an exception to what otherwise might fall within the scope of jurisdictional error.

This case is concerned entirely with the construction of section 476(2)(b), now repealed. It is a provision that said that in the Federal Court application could not be made under subsection (1) on the ground that:

the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power -

and the question that arose - - -

KIRBY J: Your reference to the repeal causes me to ask what, if the applicant succeeded on the special leave and on the appeal and/or on the constitutional writ, would be the result of that for the rehearing? What would happen? Does it continue to be - - -

MR GAGELER: It would go back to - - -

KIRBY J: To be heard under the Act by the Tribunal?

MR GAGELER: Yes.

KIRBY J: Therefore, the question of change of the law governing the Federal Court is not immediately relevant.

MR GAGELER: No.

KIRBY J: If the Tribunal erred again, then it would come up under the new regime to the Federal Court.

MR GAGELER: That is correct. The question is whether this Court should concern itself with this question of statutory construction of a provision which has - - -

KIRBY J: So my question is a side issue really.

MR GAGELER: Yes. Your Honours, the question really comes down to this: where you have a decision of the Refugee Review Tribunal which involves the exercise of no discretionary power, can it be said that that involves an exercise of power that would otherwise be able to be challenged upon the ground that it is so unreasonable that no reasonable person could have so exercised it? Now, the difference of views expressed in the Full Federal Court here comes down to the difference between that expressed by Justice Stone at page 77 of the application book, paragraph 93, on the one hand, where her Honour gave section 476(2)(b) a wide construction, and Justice Hill agreed with that; the alternative view is that expressed by Justice Finkelstein, page 57 paragraph 33.

The applicant's case and Justice Finkelstein's reasoning really goes like this: it is to say that section 476(2)(b) is all about Wednesbury unreasonableness. It is then to say that Wednesbury unreasonableness is all about the exercise of a discretionary power and, therefore, it is said that section 476(2)(b) has nothing to say about the Tribunal reaching the state of satisfaction that is required of it under section 65 of the Act because satisfaction is not discretion. They are really two distant concepts. That is the way that the argument runs.

In our submission, one may well accept that the judgment to be made by the Tribunal, whether or not it is satisfied that section 65 is a judgment and not an exercise of discretion, but the test is the same. If your Honours have Eshetu 197 CLR 611 - - -

KIRBY J: Which paragraph?

MR GAGELER: Particularly at paragraph 41. Your Honours could start with paragraph 40, but particularly paragraph 41. I am looking at the judgment of Chief Justice Gleeson and Justice McHugh and I wanted to draw your Honours' attention particularly to Puhlhofer. One can well accept - and we do not quibble with the notion that the doctrine of Wednesbury unreasonableness as stated in Wednesbury itself was concerned with the exercise of discretionary power, but what we say is that where a judgment of an administrative tribunal is sought to be set aside on the ground that a finding of fact made in the course of making that judgment was unreasonable or arbitrary or capricious, it is essentially the same test, that is it must be shown that the judgment was at least so unreasonable that no reasonable person could have made it.

KIRBY J: That may be the law but it does not seem a very satisfactory result because we have every judge of the Federal Court here saying that it is difficult, as Justice Branson put it, to justify the conclusion of the Tribunal on rational grounds. It is difficult to see how it could reach its conclusion on rational grounds. The law offers no remedy in that case.

MR GAGELER: Your Honour, here I am addressing the scope of section 476(2)(b), which is the jurisdictional question upon which the result in the Federal Court turned, that is the Federal Court said because of section 476(2)(b) unreasonableness was not a ground upon which the judgment of the Tribunal for the purposes of section 65 could be challenged.

GUMMOW J: Now, the Full Court was speaking before Yusuf and Israelian, was it not?

MR GAGELER: Of course, but my point, your Honour, is that there is nothing in Yusuf that contradicts this approach. Yusuf was concerned with 476(1)(b) and one can well accept that absent 476(2), under 476(1)(b) one would find both - - -

KIRBY J: You say that it has just been slipped out by 476(2)?

MR GAGELER: Not just slipped out; quite deliberately. There were two things - - -

KIRBY J: Taken away.

MR GAGELER: - - - that were taken away by 476(2). One was natural justice and the other was Wednesbury unreasonableness, and the policy behind doing that is not difficult to discern.

KIRBY J: I realise that. There is a certain artificiality in dealing separately with the special leave application and the constitutional writ because it cannot be taken away from us and, therefore - I realise you are addressing the special leave argument at the moment but - - -

MR GAGELER: Yes. Well, confining myself to the special leave point, your Honours, it really just comes down to this. It is a question of statutory interpretation. It is a question of the interpretation of a provision which is now repealed. There is nothing in the approach taken by the majority of the Full Court, which has subsequently been followed by other Full Courts, which is inconsistent with Yusuf. Indeed, it accepts the first stage of Yusuf. It goes on and construes the exception to 476(1)(b) provided by section 476(2)(b). That deals with the special leave point.

GUMMOW J: Yes, Mr Beech-Jones. What do you want to say at the moment on the leave application?

MR BEECH-JONES: Can I just say a couple of things. Firstly, your Honour - - -

GUMMOW J: What do you say about Mr Gageler's point that this legislation has gone?

MR BEECH-JONES: The point that I would seek to make about this is this, your Honour, that remembering the principle that your Honour stated in Eshetu as to the type of repeal that one is talking about, that is the review of a scheme whereby a statutory power - whether it is enlivened turns upon whether requisite satisfaction was formed reasonably, and your Honour stated that in that case the satisfaction can be reviewed where it was based on findings or inferences of fact not supported by some probative material or logical grounds. Then that statement of principle was endorsed in City of Enfield and in Jia. The difficulty is - - -

KIRBY J: But the problem is, is it not, that 476(2) was expressed in very general terms. It just says, "The following are not grounds on which an application may be made".

MR BEECH-JONES: Your Honour, the point being that if the - - -

KIRBY J: Mr Gageler has pointed out that was deliberate to take away from the Federal Court two areas of jurisdiction which were otherwise very important.

MR BEECH-JONES: And in Eshetu your Honour Justice Gummow said that was directed towards Wednesbury unreasonableness, that is abuse of discretionary powers, not to the review of the jurisdictional fact about the formation of the opinion.

GUMMOW J: Yes, that is the point, but what do you - - -

MR BEECH-JONES: Could I say, your Honour, the significance is this. If your Honour looks at the wording of 476(2), it is in these terms:

the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

In my respectful submission, your Honour, that looks to the result, not the reasoning that leads there.

GUMMOW J: The threshold, yes. I understand that.

MR BEECH-JONES: It says the ultimate conclusion of the Tribunal could not be reached by any reasonable person so exercising the power. To take this case, we - - -

KIRBY J: But I think Justice Gummow's question to you is addressed to the issue of whether, given that the statute has been changed, the appropriate way for you to come up to the Court is not on your constitutional writ. Why should we be fussing about trying to work out what Parliament meant in this legislation, which has its own problems, when the legislation has been repealed?

MR BEECH-JONES: Your Honour, the point I was about to make was that if the Full Court decision stands on its face, it appears to narrow the import of the ground or the proposition your Honour Justice Gummow stated in Eshetu because it narrows it to those classes of cases where the ultimate result is one that could not be reached by - - -

GUMMOW J: I understand all that.

KIRBY J: That is addressing the statute.

GUMMOW J: But it is not going to be a recurrent problem.

KIRBY J: We hope.

MR BEECH-JONES: Except this, that it is an opining upon a principle that is developing, namely that the - - -

KIRBY J: Are there other cases awaiting hearing that you are aware of where this issue will affect those parties?

MR BEECH-JONES: I am only aware that there is obviously a tail of cases prior to the repeal. I do not know how far - - -

GUMMOW J: How long is the tail?

MR BEECH-JONES: I do not know, your Honour, but I cannot say - - -

GUMMOW J: I suspect it is a fairly long tail.

MR BEECH-JONES: I think they were getting them on quicker last time I was in the Federal Court.

KIRBY J: I suppose unless we deal with it, we might well simply encourage a number of applications for constitutional relief.

MR BEECH-JONES: The repeal of the old Part 8, and your Honours may be aware the privative clauses included, did not operate upon decisions made before a particular day.

GUMMOW J: Yes.

MR BEECH-JONES: Can I also state this, your Honour, that from my client's perspective, we might be met with arguments on the constitutional writ that we might not be met with in our special leave argument, namely a delay argument. I am not aware of - - -

KIRBY J: You have been exhausting your rights under the Tribunal or under the statute, have you not?

MR BEECH-JONES: Well, that is the point we would seek to make.

KIRBY J: I thought the Court said in Aala or Miah, or one of those, that that was enough normally.

MR BEECH-JONES: We seek to put it on the way that we do not waste your Honours' time before we have pursued the matter through the Federal Court, but what I can point to is that there may be slightly different considerations raised with it.

KIRBY J: Your point is that if, in fact, there has been an error in the statutory sense, then that can be dealt with by setting aside the decision of the Tribunal and the Tribunal goes to all the detail, not the High Court of Australia, whereas, if in fact you are knocked out on the special leave point, then you are heard on the Constitution and all the people in the tail come up from the Constitution and we have to ferret through all the facts, whereas, if Justice Gummow's analysis is right, then all that happens in the tail, and in your case, is that we do not get involved in the constitutional writs; we can simply sent the matters back to the Tribunal.

MR BEECH-JONES: Yes. Your Honour, if that was not my point, it is the point I would seek to embrace now, if I could put it that way.

KIRBY J: That is the sort of point that is attractive to me.

MR BEECH-JONES: Yes, and if it is attractive to you, your Honour, it is attractive to me.

KIRBY J: It may not be attractive to Justice Gummow.

MR BEECH-JONES: Can I just say this, your Honour, of course, the other aspect of it is that the majority's construction of 476(2) is inconsistent with what your Honour said in Eshetu where your Honour specifically address the construction of 476(2)(b).

KIRBY J: I do not know that the majority really focused on Justice Gummow's analysis, did they?

MR BEECH-JONES: I can faithfully tell your Honour it was served - - -

KIRBY J: I am not conscious that I - I think Justice Gaudron and I dissented in Eshetu, did we not?

MR BEECH-JONES: Yes, but not on this aspect, if I could put it that way, your Honour. In fact, Justice Gaudron in City of Enfield, her analysis was in many respects, in my submission, totally consistent with what Justice Gummow stated in Eshetu. Your Honours, those are the points in reply on the special leave application.

GUMMOW J: Subject to anything you want to say in reply, Mr Gageler, at the moment we would be minded to grant leave in the first matter we have been talking about and, as to the second one, to refer the application into the Full Court as an application for an order absolute in the first instance to be dealt with, if need be, together and the parties should be prepared to argue both together.

MR BEECH-JONES: If the Court pleases.

MR GAGELER: If the Court pleases.

GUMMOW J: Is there anything you want to say about that course, Mr Gageler?

MR GAGELER: I do not see that it would make very much difference at this stage, your Honour, no.

GUMMOW J: Yes, very well.

KIRBY J: Keep your powder dry.

GUMMOW J: Yes, very well. In application No S125 of 2001 there will be a grant of special leave. In application S20 of 2002 it should be noted that the Court holds a certificate from the Deputy Registrar that the second respondent, which is the Refugee Review Tribunal, does not wish to be represented at the hearing of the matter and will abide by any order of the Court save as to costs. In relation to the section 75(v) matter, S20 of 2002, pursuant to Order 55 rule 2 that will be referred into the Full Court as an application for an order absolute in the first instance. Both matters should be prepared to be argued on the same day consecutively. We should certify for appearance of counsel in the constitutional writ application.

AT 12.25 PM THE MATTERS WERE CONCLUDED