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Minister for Immigration and Multicultural Affairs v Israelian M13/2000 [ 2000] HCATrans 683  (16 November 2000)

Melbourne No M10 of 2000

B e t w e e n -

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Appellant

and

FATHIA MOHAMMED YUSUF

Respondent

Office of the Registry

Melbourne No M126 of 2000

In the matter of -

An application for a Writ of Prohibition or for an Injunction or for orders in the nature of Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

THE REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

FATHIA MOHAMMED YUSUF

Prosecutor/Applicant

Office of the Registry

Melbourne No M13 of 2000

B e t w e e n -

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Appellant

and

OGANES ISRAELIAN

Respondent

Office of the Registry

Melbourne No M127 of 2000

In the matter of -

An application for a Writ of Mandamus or Prohibition or for an Injunction or for orders in the nature of Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

THE REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

OGANES ISRAELIAN

Prosecutor/Applicant

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 16 NOVEMBER 2000, AT 10.23 AM

(Continued from 15/11/00)

Copyright in the High Court of Australia

of statutory construction. The earlier industrial cases deal with the exercise of judicial power and perhaps may not be immediately in point in the present situation.

Might I however refer your Honours, and I have provided a copy to members of the Court of Public Service Association (SA) v Federated Clerks' Union [1991] HCA 33; 173 CLR 132. At 136 in the judgment of Justice Brennan there is an analysis of a provision, which is set out at the top of page 136, and in the following paragraphs his Honour considers the position of a discretionary decision which depends upon a making of an opinion founded on facts. At point 6 on the page his Honour said:

An opinion under par (a) relates to a matter of fact, namely, the prejudicial effect which the proposed rule alteration would have -

and he goes on, the opinion:

is to be formed upon a finding of fact.

His Honour makes a similar proposition in relation to paragraph (c) on the following page two-thirds of the way down when discussing that paragraph:

There must be some objective factor, more or less specific, which leads the Registrar actually to form an opinion that it is proper to refuse registration.

I do not perhaps do justice to his Honour's reasoning, but it appears that there is a similarity in the structure of the reasoning to that which applies under the Migration Act 1992 , and in particular that form of reasoning is reflected in that passage in Guo's Case 191 CLR 574 to 575 which is paraphrased in the extract from Abebe which I read to your Honours yesterday, in particular in the middle of 574 where the majority judgment of the Court said:

In the course of determining whether there was a real chance of persecution for such a reason, the Tribunal made findings about past events.....as it was entitled and, indeed, bound to do -

and there is a reference to the then relevant provision in the Act. That is one proposition. The other point which I meant to make yesterday and will do so very briefly is that Mr Tracey relied upon a passage in Justice Brennan's judgment in Repatriation Commission v O'Brien 155 CLR 446. That passage, in the light of the analysis I put before the Court yesterday, actually supports what we put. At point 2 on 446, in the parentheses his Honour said, after saying:

If a failure to give adequate reasons.....warrants an inference that the tribunal has failed in some respect to exercise its powers according to law (as, for example.....by failing to consider material issues or facts) -

Now, of course, that is precisely the analysis which we say arises from the failure of the Tribunal to make a finding in relation to the matter we debated yesterday. Might I just note that I have given your Honours also a copy of Sullivan's Case, which is referred to after that passage in his Honour's judgment. I have given your Honours so much of the judgments of Justice Smithers in [1978] FCA 48; 20 ALR 323 at 333, where his Honour indicates at line 5 agreement with Justices Deane and Fisher, namely, at line 10:

The result is that it is seen that an important aspect of the case was excluded from consideration and accordingly an error of law occurred.

I have provided your Honours with copies of those pages relied upon by Justice Brennan, particularly from Justice Deane's judgment at the bottom of 348 where, in considering 43(2) of the Administrative Appeals Tribunal Act - which is the provision relating to reasons - at the bottom of 348, in the last sentence, his Honour says:

the decision of the Tribunal contains no findings on any of the specific questions of fact which would seem material to the question whether restricted licences should be granted.

Then at line 30 on the next page, after elucidating, he notes that that meant that the proceeding before the Tribunal miscarried. Finally, at the end of the judgment of Justice Fisher at the top of page 353:

The Tribunal is thus obliged to give the precise reasons upon which it has acted and in particular its findings on material facts. It must be assumed to have complied with the requirements of s 43(2). In so far as it has not made any findings on those facts which in my opinion are material to the exercise of its discretion, it follows that it must have considered that such facts were not material. As I have found these facts to be material, the Tribunal has failed to take account of material facts. In so doing it has erred in law and thus an appeal lies -

KIRBY J: Mr Basten, as you have returned to the central podium, I have been concerned overnight about whether or not it could be said that you have abandoned the reasoning of the majority of the Full Court in Singh. Do you support the reasoning of the Full Court or do you reject it? There seems to be some sort of a dichotomy between your oral submissions yesterday and the written submissions. I would just like to know where you stand.

MR BASTEN: I am sorry if there is. I did not mean there to be and I sought to rely specifically on the shortest of the paragraphs which set out the reasoning in Singh, which I think was 45 - I do not have it in front of me. All I was seeking to say was that we fully support the concept that the Tribunal is required to make findings on all material questions of fact, that it is required to set out those findings. All I was seeking to say was that if the Tribunal has not made a finding, 430 does not oblige it to set out the finding it did not make. The error of law occurs at the precedent stage of making the finding but I do not think that that is in any way inconsistent with what they say in Singh. It would be an extraordinary proposition if they were saying, "The Tribunal should have set out findings that it did not make".

McHUGH J: No, but they seem to say that they are in breach of 430 if they do not set out findings that they should have made.

MR BASTEN: Because they identify 430 as the sole source of the obligation to make findings.

McHUGH J: Yes. Well, I gathered from your submissions yesterday that you were not prepared to go that far.

MR BASTEN: No, I thought it was better dealt with on a broader basis.

McHUGH J: Yes.

GLEESON CJ: Thank you, Mr Basten.

MR BASTEN: Thank you, your Honours.

GLEESON CJ: Yes, Mr Keon-Cohen.

MR KEON-COHEN: May it please the Court. Your Honours, the case put on behalf of Mr Israelian presents six issues. May I briefly recite them because much has been discussed already and I do not wish to focus upon issues in a way which regurgitates discussion that has already occurred. First, the relationship between 430 and 476(1)(a), whether 476(1)(a) represents procedures which 430 requirements should comply with. Second, the content of section 430, particularly the question of findings on any material questions of fact. Third, did the Tribunal fail to comply with any of those requirements? Fourth, does a breach of such a requirement lead to a right of review under 476(1)(a) or, as our further contentions and the order nisi proceedings would have it, on additional grounds. Fifth, is the error of the Tribunal, as we would have it, in failing to refer to a social group question characterised solely as one or other of the grounds under 476. Then, sixthly, there is a question of available remedies.

Your Honour, I wish firstly to take the Court to the factual material which we rely on in support of four propositions which are put against us by the Minister yesterday. First, that there is material upon which the Tribunal and this Court may rely going to the establishment of a social group, whether or not the applicant was a member of such alleged group and that that material is much more voluminous than a straw in the wind, as Justice Emmett in dissent and Mr Tracey would have it yesterday.

Second, that the assertion by his Honour Justice Emmett in dissent and Mr Tracey yesterday that the material before the Tribunal meant that it was not possible to make a finding, that the phrase "if it could" is not correct. There was ample material, in our respectful submission, for the Tribunal to so find.

Third, Mr Tracey's submission yesterday was that in rejecting the conscientious objection claim the Tribunal embraced, without saying so specifically, all the other grounds upon which we rely, particularly the social group ground. We respectfully submit that when one analyses the Tribunal's decision, that submission cannot be accepted.

Fourthly, Mr Tracey put the submission yesterday that there was nothing to concern this Court, that there was no error of law, because it is well accepted that punishment at the general law, even punishment imposing possibly a severe prison sentence, such as a maximum of ten years in this case, cannot be a ground for a persecution for a Convention reason. We accept that proposition; it is not part of our case to so argue. Our case focuses upon extra statutory or judicial or legal punishment imposed upon not a conscientious objector, but a member of a group described as deserters or draft evaders.

Now, with those propositions in mind, may I take the Court to the appeal book and to passages that we rely upon. Firstly, may I take the Court to page 54 of the appeal book. This is a letter, and whilst the Court has page 54 open, would the Court please go to page 21 in order to explain the source of this letter. Your Honours will see at line 29 - this page is a description by the applicant's solicitors of the additional material presented to the Tribunal - this item is described as:

Summary of letters sent from family to applicant -

So that is what we have before us at page 54. Would your Honours go to line 14 at page 54. The letter reads:

Because there isn't enough soldiers in Karabagh -

which is the area where the war was taking place -

they started to collect young men from Yerevan.

I am advised Yerevan is the capital of Armenia.

There's a punishment for the escapees. You know they've got right to punish them. That's what happened to Vaham.

There is no material before the Court who Vaham is, but one can assume from this letter of the family to the applicant that he is known to the family.

He tried to escape from M.P.

I am not sure what that refers to; it may refer to - well, I would be speculating, your Honours -

They shoot him.

Now, we would respectfully submit that that is pertinent to a group of people who might be called draft deserters or evaders and it is pertinent as an item of evidence going to the treatment they receive in Armenia if apprehended. Would your Honours then go to page 58. This is a document of the Country Information Service, a request for information, and the information is provided by the Department, and could I read beginning at line 8:

According to the information available, the Armenian authorities have recently engaged in a more effective conscription than in the past, and have indeed embarked on a large-scale recruitment of Armenians from 18 to 45 years of age. It was for instance reported that the authorities had established a checkpoint at the airport for about a week in January 1994, and no male Armenian pertaining to the above age group had been authorized to leave the country.

That age group, of course, embraces the applicant, Mr Israelian. And continuing:

Since the army is so small and embryonic, virtually all conscripts serve on the Armenian-Azeri border, and recently we have received still unconfirmed reports that new conscripts are also sent to serve at the Nagorno-Karabakh frontline.

And then the critical passage follows:

There are also indications that deserters and draft evaders -

and pausing there, that is the description of the social group accepted by the Tribunal and put to the Tribunal by the applicant -

are now being punished according to the existing criminal provisions, which, under certain conditions, foresee imprisonment of up to ten years. We are also aware of still unconfirmed reports concerning alleged executions of deserters.

That, your Honour, on all the materials, I do not think it would be contested. It is beyond the law of Armenia. Nothing in the materials allows the death penalty, even a judicial death penalty for deserters. Could I then take the Court to page 59, the following page? This continues the country information service material, your Honours. We will see at the top of page 59 "From CIS No. 4103". Would your Honours go to paragraph 3 on that page:

Armenia: The law "on Military Obligation" passed in Nov 93 removed the concept of alternative service from the list of military services. The ceiling of conscription age has been raised from 25 to 27. Foreign citizens can serve in the Armenian armed forces on a contract basis. Exemption from military service is granted at the behest of the draft boards; there are no longer specific clauses to cover exemptions. Deferment clauses cover the following -

I interpolate "one" -

- families in which neither father nor mother can work and who do not have any children who can work.

- young men who are raising one or more children without a mother.

I pause there, your Honour, to mention that that embraces the brother of the applicant. It was a finding of the Tribunal below that the alleged persecution of draft resisters could not be accepted because the brother had been excused any punishment because he had a child. Your Honour, our submission is that that is an incorrect finding of fact. The brother was not a draft resister. He was one of those class of people who deferred and he is there mentioned as a young man who are raising one or more children without a mother. Continuing on:

- those who have two or more children who are handicapped.

- students of accredited state higher education institutions.

Your Honour, what we gain from that is that four groups are mentioned here and it infers, in our respectful submission, a fifth, that is, deserters. The submission is, on this document, that there are detailed rules and procedures of recruitment, there are detailed rules regarding exemptions and deferment and the laws for punishment of deserters and evaders are set out. Now, would your Honours then go to the next page, which is page 66? This is in the submission of the solicitors. At line 43, at the bottom of the page:

Advice from an international organisation also confirmed the applicant's claim that a large-scale recruitment of men between 18 and 45 years of age has taken place in Armenia and that deserters and draft evaders are punished according to the existing criminal provisions. This means possible imprisonment of up to 10 years.

Your Honour, we submit that is evidence of a social group and the submission by Mr Tracey that punishment cannot found persecution is there founded. We do not put our case that way, as I have already mentioned. Would your Honour then go to the next page for the next passage, page 67, and this is an important passage. At the bottom of 66, the solicitors write:

During the course of a television interview, Armenian Minister of State and Chairman of the Military Draft Commission, Mr Vazgen Sarkisyan, concisely stated official policy on draft avoidance and desertion:

"... He -

If I may pause there, your Honours. This is, of course, a secondary account. The original account of what the Minister says is the next document on page 72 of the appeal book and I will take your Honours to that in a moment. There is what the Minister said and I need not read it twice, so I will read it at page 72, but I emphasise that this is official government policy that is before the Tribunal and it is speaking about the very group of people that Mr Israelian claimed to be a member of.

GLEESON CJ: But is it official government policy that goes beyond enforcing the law against them?

MR KEON-COHEN: Yes, your Honour. In our respectful submission, that may be concluded from the document at page 72 which I will come to. At line 12 of page 67 the solicitors put to the Tribunal:

Further reports also confirm Mr Israelian's claim that all male citizens between 18 and 45 are barred from departing Armenia and must report for military training. They are only able to leave the country with the special permission of the Military Draft Commission.

Then the reference is given. At line 19:

As detailed in his original application for refugee status -

Pausing there, your Honours, this is a central claim put to the Tribunal. It was not an afterthought, in our respectful submission. That is supported by the initial discussion of the Tribunal below when it comes to the section of its reasons, looking at its reasons and conclusions.

As detailed in his original application for refugee status, Mr Israelian received a call-up notice from the Armenian military in January 1991. This notice was delivered to his parents' home; his family was also questioned as to his absence from the country. Though no action has been taken subsequently, this must surely be regarded as contingent upon his return or otherwise.

Would your Honours then go to page 72. This is an international intelligence report of 5 April 1994. It is described as "MINISTER SARKISYAN WARNS ARMY DESERTERS" and the description is as follows:

The problem of calling up reservists in Armenia for a training session was the topic of a television interview given by Vazgen Sarkisyan, Republic of Armenia minister of state and chairman of the military draft commission. Noting that the previous call-up was "a complete success," he touched on the problem of desertion. According to him, the names of all deserters are known, and if they have not yet been punished it is because these are difficult times and everybody is too busy to look for them. The time will come, however, when they all will face the court.

We cannot complain of that, but he goes on:

He said that all measures have been taken to keep deserters from leaving the territory of the republic - "for this contingent, the airport is closed."

Your Honours, in our submission, there is a description of a social group. It is a military phrase, "for this contingent". Our submission is that it perfectly describes the group Mr Israelian claims to be a member of.

"for this contingent, the airport is closed." Interpol is involved, and with its help those deserters that have left Armenia may be returned. "There is no forgiveness for them; they do not have a peaceful future - they will not be able to live, work, or study with impunity. Moreover, they will be `blacklisted.'"

In our submission, your Honours, this is beyond the law clearly.

GLEESON CJ: What does being "black-listed" mean? I sense that it is not good, but what exactly does it mean?

MR KEON-COHEN: Normal parlance, your Honour, would suggest that you are placed on a list and that dreadful things will happen to you at the hands of the Minister. It is not a comfortable list for citizens to be placed on.

GLEESON CJ: No, but if you are, by hypothesis, a law-breaker, it might just mean that the law will be enforced against you.

MR KEON-COHEN: Yes, your Honour, and we cannot complain against that, but our submission is that this inference is open that the Minister and the government are concerned about it and are taking positive steps about it.

GLEESON CJ: But if the government of Australia announces it is going to have a crackdown on tax evaders, that does not turn tax evaders into a persecuted social group, does it?

MR KEON-COHEN: No, it does not, your Honour, but this suggests something beyond that, in our respectful submission. This suggests that, quite apart from the processes of the law, these people are being black-listed. They are to be potentially severely discriminated against or discriminated against even perhaps beyond 10 years imprisonment. I and the Court cannot reach those conclusions but this, your Honour, is beyond a straw in the wind on any view, in our submission.

The next passage, your Honour, is page 100, and that the Court has been taken to; I will not read again. That is the straw in the wind that Justice Emmett and Mr Tracey referred to. The critical passage is on the right-hand column at about line 30 of the page:

According to a report in the influential German daily Sueddeutsch Zeitung, the United Nations High Commissioner for Refugees issued an order by which Armenian draft resisters should be given refugee status.

Would your Honours then go to page 124. This is a long document presented by the applicant to the Tribunal. It is Human Rights Information Agency, and it seems to be a compilation of various press reports. At line 27 on page 124 under the heading "Violations of the rights of refugees in Armenia" - that is not Mr Israelian, he is not a refugee in Armenia - at line 27 the statement is:

Officers of the enlistment office threatened reprisals in cases of unwillingness to register or perform military service -

which would seem to embrace Mr Israelian, although it may be open to the interpretation that this is focussing solely on refugees in Armenia.

Might I then take the Court to the Tribunal's reasons. The Tribunal's passages begin at page 128 of the appeal book. At the bottom of page 128 the Tribunal begins with the observation:

In his initial application, the Applicant made no submissions other than to state that he still had military service obligations in his country, he was the subject of a call up notice and officials had visited his house -

so he is putting his case on that basis. There are numerous passages, and I will briefly take the Court to them, where the item is mentioned. Page 129, line 4:

He claimed he would refuse to serve and that he would be taken away and probably executed as a consequence.

At 129, lines 7 to 10, it refers to laws of military service:

that Armenians between 18 and 45 years are subject to conscription and that draft evaders and deserters face imprisonment of up to 10 years. It also referred to unconfirmed reports of such people being executed.

So the Tribunal recorded that item in its reasons. Would your Honours then go to page 130, lines 6 and 7:

He added that the authorities had visited his parents' house several times, although they told them he was in Australia, and they had broken in and searched the house.

GLEESON CJ: His parents told them he was in Australia.

MR KEON-COHEN: Yes. Line 12 at page 130:

It was argued that his persecution would flow from his political opinions and his membership of a particular social group, comprising deserters and/or draft evaders.

At line 22 on page 130 documents:

particular difficulties experienced by those persons regarded as draft evaders and/or deserters.

At line 25:

The issue of that identification document is contingent on satisfactorily complying with military service requirements.

That goes to the issue of passports. Your Honour, the legislative framework is then set out. The reasons then proceed to look at those and then to provide the reasons for decision. I take the Court then to page 139. This is the passage quoted by the Justices in the Full Court as the only analysis of this issue and as not deciding it. At page 139 that whole page is quoted and we rely upon the analysis of the Full Court in that, although mentioning the issue, it certainly does not make a finding upon it.

It also mentions the brother as a reason for not being concerned about the question and, as I indicated, your Honour, we would submit that this itself is an error of law and that it is having regard to an irrelevant consideration. At line 3:

He says his brother, who has also served for two years in the Soviet military, evaded a call-up notice but then returned home and was exempted from serving because he has a small child.

At line 12:

despite there being a ten year maximum term of imprisonment for draft evaders, that penalty is not always invoked, as in the case of the Applicant's brother.

Well, he was not a draft evader; he was, as I have tried to point out, in a different category. Now, your Honour, the conclusions we would seek to draw from all this is that there is no finding by the Tribunal as found by the Full Court. There was no finding whether there is a particular social group, whether Mr Israelian is a member of that group and whether the group suffers persecution, for example, the suggestions, as I have put it, of black-listing.

This touches upon the discussion your Honour the Chief Justice raised yesterday as to how one might classify or approach these various facts. As your Honour put it, are they facts in issue, are they in fact relevant to a fact in issue, are they particulars, or are they evidence? Now, an approach, in our submission, which is helpful in looking at these findings and non-findings and trying to understand for the purposes of 430 where they fall.

Your Honour, we would submit that an analysis, following your Honour the Chief Justice's approach, might be this. The fact in issue was whether he had a well-founded fear of persecution by reason of a membership of a social group. That is the ultimate fact. That is a fact in terms of the statutory language. The fact relevant to the fact in issue is the non-finding that there was no social group as alleged which existed or there was a social group but Mr Israelian was not a member of it.

A particular might be that draft resisters are denied passports, are denied work, are maybe subject to ten years' imprisonment. An item of evidence might be the letter I took your Honours to from the applicant's family describing what happened to persons known to them.

Your Honour, another approach to this which may be of assistance is a case that we have handed up this morning, and I hope your Honours have it, from the Court of Appeal of the District of Columbia in the United States, Saginaw. Might I take your Honours quickly to that because it approaches the matter in a similar fashion to your Honour the Chief Justice, though slightly differently. Saginaw is a case where the question was as to a tribunal issuing a permit in relation to broadcasting and the appeal came from - this is in its judgment of Associate Justice Stephens at page 556:

from an order of the Broadcast Division of the Federal Communications Commission denying the application of the appellant for a radio station construction permit, and granting the application of the intervenors for such a permit.

Would your Honour go to page 559, where at paragraph 2:

The appellant assigns as reasons for its appeal numerous alleged errors of the Commission in making, and in failing to make, specific findings of fact from the evidence - - -

GLEESON CJ: It is really paragraphs [9, 10], is it not?

MR KEON-COHEN: I am sorry, your Honour, I am at point 2 on the left-hand column at page 559.

GLEESON CJ: I know, but they come to the point, do they not, against the numbers [9, 10] on the bottom of my copy?

MR KEON-COHEN: That is right, your Honour, at [9, 10] at the bottom of page 559:

In discussing the necessary content of findings of fact, it will be helpful to spell out the process which a commission properly follows in reaching a decision. The process necessarily includes at least four parts: (1) evidence must be taken and weighed, both as to its accuracy and credibility; (2) from attentive consideration of this evidence a determination of facts of a basic or underlying nature must be reached; (3) from these basic facts the ultimate facts, usually in the language of the statute, are to be inferred, or not, as the case may be; (4) from this finding the decision will follow -

and then at page 560, that analysis is applied usefully to the facts of this case:

For commission may grant a construction permit it must, under the statute, be convinced that the public interest, convenience, or necessity will be served. An affirmative or negative finding on this topic would be a finding of ultimate fact.

There is the level of analysis which your Honour yesterday suggested was the fact in issue. Then it proceeds:

This ultimate fact, however, will be reached by inference from basic facts, such as, for example, the probable existence or non-existence of electrical interference -

We would suggest, your Honour, that falls into the category your Honour mentioned yesterday of a fact relevant, a basic or underlying fact, and then a little down the page:

These basic facts will themselves appear or fail to appear, as the case may be, from the evidence -

Then at the very bottom of that left-hand column at page 560, about 10 lines from the bottom:

We now rule that findings of fact, to be sufficient to support an order, must include what have been above described as the basic facts, from which the ultimate facts in the terms of the statutory criterion are inferred. It is not necessary for the Commission to recite the evidence, and it is not necessary that it set out its findings in the formal style and manner customary in trial courts. It is enough if the findings be unambiguously stated, whether in narrative or numbered form, so that it appears definitely upon what basis facts the Commission reached the ultimate facts and came to its decision.

GUMMOW J: Now, in Mahon v Air New Zealand, I think, Lord Diplock discouraged the use of the word "evidence" to describe the material upon which administrators decide things because the use of the word "evidence" immediately conjures up all sorts of ideas that come from adversarial litigation.

MR KEON-COHEN: Yes, your Honour, we agree that this is not evidence in that sense. It involves precisely that, all sorts of hearsay and problems of that kind. The approach, your Honour, is favoured of materials and, in our submission, this analysis is - - -

GUMMOW J: However, 430 itself uses the expression "evidence or any other material".

MR KEON-COHEN: Which would seem to put the matter to rest, your Honour.

GUMMOW J: Yes.

MR KEON-COHEN: It would seem to suggest that the statute is not concerned, for these current purposes, for the purposes of obligations of 430, with categorising it either way.

Your Honours, the submission, therefore, is that there is a real question here as to whether 430(1)(c) or (d) should be triggered. It is not a passing item which was of no substance in the applicant's case. Now, having gone to that, we proceed then to go to the question of material fact, as discussed yesterday. I do not wish your Honour to traverse that material but could I put six propositions which arise from Yusuf and Singh and I wish to particularly concentrate on what appears to have emerged as the difficult issue as to whether under 430(1)(b), (c) or (d) there was a requirement in the decision maker to make findings of fact in respect of materials or evidence or findings contrary to his ultimate decision.

Yesterday there was discussion as to precisely what Singh did establish for that purpose and yesterday and this morning, your Honours, Justice McHugh and Mr Basten conceded the concession that Mr Basten made surrounding this point. Your Honours, we do not make that concession and we do not believe that the law is sufficiently clear arising from Singh to be able to say that it is not a requirement of the law, that in every circumstance the decision maker should not make findings about adverse material contrary to his ultimate finding.

GLEESON CJ: Yes, but you cannot escape from this problem of the level of generality or particularity. We have been referred to Pettitt v Dunkley, and a line of cases about the duty of judges to give reasons. That was a problem that commonly arose in an appellate context in relation, for example, to appeals from the District Court of New South Wales, and somebody might want to argue that the District Court judge did not comply with the obligations to give reasons for a decision and thereby committed an error of law.

If you had an ordinary personal injuries case there might be an ultimate issue as to damages and a fact relevant to the fact in issue about the quantum of damages is whether or not the plaintiff is permanently incapacitated. Now, the District Court judge might hear evidence from half a dozen doctors, three of whom, for reasons that they explained, said he was permanently incapacitated and three of whom said he was not. As I would understand Pettitt v Dunkley and that line of authority, provided the District Court judge made a finding about the extent of the plaintiff's incapacity, it did not constitute an error of law for the District Court judge to fail to deal in his or her reasons with the evidence of each of the medical practitioners.

MR KEON-COHEN: Your Honour, with respect, we have no dispute with all those observations. Your Honours, we come back to the language of section 430(1)(c) and (d) and the way we present our case is that there is work to do for each of those subsections, and it is different work. Subsection (d) speaks of "evidence or any other material". In our submission, that falls squarely within the line of authorities you have mentioned and it is not part of our case to require the Tribunal to make findings about all that evidence and material, but it is part of our case to say that there is a distinction between the two. It comes to the concerns of Justice Kirby yesterday about these four subsections being dealt with similarly and not elevating subsection (c) to a higher plane. Your Honours, we submit that it should be so elevated because it is different. Subsection (c) presents a requirement of "findings on any material questions of fact" and it is distinct from referring to "evidence or any other material". It is not part of our case to speak about subsection (d).

It comes back then to the characterisation issue your Honour has mentioned and that I have just discussed. Our submission is that each case will turn on its own particular body of evidence, on the approach of the applicant to that material, how he puts his case, on the approach of the Tribunal to that case in its totality, and, given all that context, a sensible and robust interpretation of this statute which, after all, is not directed at judicial officers, but to administrative tribunals.

When one has all that context, in this case the material facts are not the letter from the applicant's family; the material facts are those facts as put by the applicant pertinent to whether he was a member of a social group. So we would say a material fact obviously is whether there were indications in society that that society recognised a particular group. So the Minister's statements, in our submission, become an important element in this whole case and can be elevated to a 430(1)(c) item and raised above a 430(1)(d) item. That is the way we put our case.

KIRBY J: Could I ask you, did you check the second-reading speech of Mr Ellicott when he introduced the template, which is the foundation for this collection of obligations in the administrative decisions - - -

MR KEON-COHEN: I have looked at the second reading speech, your Honour, and formed the view that it was not helpful in this discussion.

KIRBY J: There was a discussion paper that was circulated recently by the Administrative Review Council which I have a dim recollection of looking at that I think reviewed 20 years of experience, or however long it is, of the Administrative Decisions (Judicial Review) Act on the obligation to give reasons. Is there anything in that? Do you know that publication or not?

MR KEON-COHEN: I am sorry to say, your Honour, I have not read that publication.

KIRBY J: It is quite recent. It was a sort of overview of what the experience had been. I am going to have a look at it.

MR KEON-COHEN: In our submission, when 430(1)(c) and (d) are looked at that way, it is a sensible approach and a practical approach, an approach supported by Yusuf and Singh. It is an approach which also embodies this proposition, that inferences can be drawn in the context of the statute, in the context of the common law. I wish to take the Court to two cases dealing with that issue, Doody and a Victorian case of Mr Justice Ormiston, Body Corporate Strata Plan.

Can I first go to back to Yusuf and Singh and extract the propositions I wish to. Firstly, looking at Yusuf, my first proposition is that reasons need not deal with all matters raised. It is enough that the findings and reasons deal with substantial issues on which the case turns. That is at paragraph 29. Secondly, the nature of the claim and the way it was presented to the Tribunal must be examined to identify material questions of fact. That is paragraph 30 of Yusuf. Thirdly, the Tribunal does not exclusively decide what is or is not material if it can be objectively determined - I interpolate, by the Federal Court - what are the issues. That is Yusuf at 21. On these issues, findings on material questions of fact must be made that deal with the substantial issues. That is Yusuf at page 21. Their Honours adopt the observations of Mr Justice Sackville in Muralidharan in those passages.

I think Mr Tracey yesterday agreed that none of that is now contentious. It is an objective approach. It is a matter for the Federal Court in the light of the statute and the way the case was put and the way the Tribunal dealt with the case to decide objectively what are material facts. The contentious point follows, and that is adverse material. What is the obligation?

GUMMOW J: What does "objectively" mean where there is no real system for framing issues?

MR KEON-COHEN: The system for framing issues, your Honour, is there. To some extent the issues are spelt out by the Convention and the law surrounding those matters. There are five Convention grounds and the issues ultimately all come back to that. There are hundreds of cases from different countries around the world that obviously raise a maze of different factual matters. The issues focus upon persecution for a Convention reason. The contentious area is discussed at Yusuf at paragraphs 46, 57, 59, 60 and 64. If I could quickly take the Court to those. At 46 of Singh, at the bottom of the page - ultimately, in our submission, Singh is a little equivocal on this point, but the law is such that this Court might rule in the way we respectfully suggest. At paragraph 46:

There is no specific requirement in s 430 for the RRT to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made. That is the view endorsed.....is consistent with the language of the section -

It refers to authority, Arudselvan:

There the Court held that the RRT was not obliged to analyse material submitted by the applicant, and to give reasons for not accepting any of it that might be thought to be inconsistent with the conclusions it reached. The endorsed view is subject to the important qualification that if one of the reasons which actually induced the RRT to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the RRT's actual reasoning process.

Durairajasingham, Justice McHugh's observations, are mentioned. We then proceed to paragraph 57, and there the observation is this:

Thus whilst materiality will not necessarily depend upon how an applicant chooses to present the issues, we do not agree that the only material facts are those on which the Tribunal is legally required to make findings. A fact is material if the decision in the practical circumstances of the particular case turns upon whether that facts exists.

We would say we have such a fact in this instance. Then down the page at paragraph 59:

The fact that it simply noted material that might suggest to the contrary, without explaining why it did not regard that material as showing, contrary to the RRT's conclusion, that there exists a real risk of future police persecution.....does not involve a failure to comply with s 430(1)(d). As we have said, there is -

no "distinction between material questions of fact" - - -

HAYNE J: It is "there is a distinction". You read it as "there is no" - - -

MR KEON-COHEN: I beg your pardon, your Honour. I am reading the bottom sentence of paragraph 59, your Honour.

HAYNE J: Yes.

MR KEON-COHEN:

there is a distinction between material questions of fact and pieces of evidence.

We support that proposition when looking at 430(1)(c) and (d), and we submit that this paragraph can best be understood if it is thought to be inconsistent with the prior paragraph. It is really focusing on pieces of evidence and not - - -

GUMMOW J: Why do we have to spend time trying to parse and analyse this judgment? It does not bind us.

MR KEON-COHEN: No, your Honour.

GUMMOW J: It does not help us. Why should be agonise in trying to find help? You are not addressing seven judges each sitting separately as trial judges in the Federal Court.

MR KEON-COHEN: No, your Honour. I will move on. I come to the question then of silence, and what might be inferred from that. If I take your Honours quickly to Body Corporate Strata Plan, a decision of Mr Justice Ormiston. This is a planning appeals decision, and an appeal arose in respect of the relevant legislation. Could I take your Honours to page 911.

KIRBY J: What is the proposition that is being advanced that you say this supports?

MR KEON-COHEN: The proposition, your Honour, is at page 912, and it is that:

Where no reasons at all are given by a tribunal required to state reasons or where its determination consists only of conclusions or of "a statement of ultimate facts on matters required by the legislature to be found", there can be no doubt that the tribunal has erred and its failure can be remedied.

So, "where no reasons at all are given.....can be remedied - - -

KIRBY J: Well, that is not this case.

MR KEON-COHEN: It can be remedied, that is not this case. Down the page, your Honours - - -

GAUDRON J: On one view, you say it is in relation to the second limb of your application.

MR KEON-COHEN: Yes, your Honour. No, that is so, your Honour, in the sense of social group. This is not a case as posited by Justice Callinan yesterday where there was simply nothing. Your Honour Justice Gaudron's observation is picked up at line 30 at page 912 of this judgment:

However, where the reasons are partly defective, in the sense that not all issues have been dealt with, then an order compelling delivery of further or better reasons would have an air of unreality about it.

It comes to your Honours' observations yesterday.

Such an order would merely give a tribunal an opportunity to patch up what has been shown to be defective in circumstances where it is more than likely that the tribunal overlooked the issue altogether.

Then, the next paragraph is pertinent:

In the present case the form of the determination points clearly enough to the Board providing some reasons for its decision, whatever may otherwise be the deficiencies of that reasoning. To ask the Board to give further reasons now is not only impractical, in that I am told that the chairman of the division has retired, but it is also undesirable that it should appear that the Board might have the opportunity to reconstruct its reasoning to meet the defects pointed out in detail at the hearing of these appeals.

So it comes, your Honour, to a public policy approach that it is not only impractical, but it has an air of artificiality and undesirability about it which would lie contrary to the policy justifications for judicial review in the first place. So, the appropriate relief from those reasonings would be to set aside the decision, not simply to refer it back.

As to silence and what might be inferred, may I take the Court to the following page, page 914, and this is speaking of the context of a magistrate, at line 5:

some caution must be exercised in reaching such a conclusion -

of "a miscarriage of discretion vitiating the determination" in this situation -

"The true principle must be not that everything relevant which a magistrate does not refer to is to be taken to have been overlooked, or on the other hand, that it is to be taken to have been considered, but that, if something which should have been considered is not referred to, and the nature of the decision suggests some error, which may have been due to that matter not having been considered as it should have been, the appellate tribunal may properly draw that inference, and the magistrate will have no cause to complain if it does.

So, at line 30, the critical question is discussed by his Honour - - -

GUMMOW J: Is Kentucky Fried Chicken not more to the point? It happens to be a judgment of this Court.

HAYNE J: It is 140 CLR, particularly apparently at 682, or in the judgment of Justice Stephen there is reference to what conclusion one draws from silence.

MR KEON-COHEN: Yes, your Honour, and that is mentioned and quoted in this judgment and I was just - - -

GUMMOW J: I know that. That is not really the point, is it.

McHUGH J: But have these cases really got anything to do with this case? I know what I am going to say is completely at odds with what the Full Court says, but I would have thought it was as clear as anything that the whole purpose of 430 is to require the Tribunal to show what it has actually found, and once it has set out what it has found in its reasons, good or bad, you go from there. You may find errors in 476, you may find errors under the general administrative law which enabled you to come here, but that is the beginning and end of it, and as long as they prepare a written statement, I am not sure that, objectively, you can see any real breach of the section. They have an obligation to set out what they do and if they do not set out findings on what another tribunal thinks is a material question of fact, well, they did not make it; so, that is an error that can be dealt with under the ordinary law, but - - -

MR KEON-COHEN: Well, those are the issues we are debating, your Honour.

McHUGH J: Yes, but you get it from the statute, 430 itself. If they have not done what the section says they have to do, they have to set out their findings on any material question, well then, they just have not made a finding on what is a material question. That is the beginning and end of it.

MR KEON-COHEN: We would accept that, your Honour.

GLEESON CJ: It is an attempt to bring it under the rubric of 476(1)(a) which, in turn, is explained by the scheme of Part 8 that perhaps leads to people attempting to see in section 430 things that you would not find there if it were not for the scheme of Part 8.

McHUGH J: Exactly, and I must say I would like to embrace the approach of the Full Court because it would save us a lot of work, but the fact is that it does not seem to me that what they have done in the process of reasoning is in accordance with the section and that it really means, in effect, that the work has to come here under the prerogative jurisdiction.

MR KEON-COHEN: Yes, your Honour, and as to the discussion we have had as between 476 and 430, and other parts of the Act such as 65 and so forth, we would submit that when one looks to all of those contextual matters, 476(1)(a) has work to do, that the submission put against us that 430 matters and procedures under 476 are confined strictly to those sections leading up to 429 but not moving to the next section, 430, cannot be accepted, and that the plain words of 430, as your Honour Justice McHugh mentions, have just that effect, and that 476 is there also, with effect.

Can I take the Court, in that regard, to the explanatory memorandum and I think it adds to the discussion of yesterday and highlights that 476(1)(a) and 430 and, indeed, earlier sections of the Act, apply the requirement of procedural fairness of procedures of a statutory kind set out in 476? Now, the explanatory memorandum is before you in two forms. There is a document which we have handed up and it is also contained in the Xu decision with some additional passages. Can I take your Honours to either, but may I take your Honours to the document? It is the explanatory memorandum being extracted, parts of it, to the Migration Reform Act. It is found at Xu at 168 ALR at page 628.

The passage of importance is paragraph 413 at the explanatory memorandum. It is talking about section 166LB which is, in fact, section 476 and it states initially that the various subparagraphs introduced by this amendment "are not mutually exclusive". Pausing there in our submission and so far as the explanatory memorandum helps us at all, that might be supportive of our position that there may be various characterisations of this error. It speaks of:

This ground of review is complementary to the new -

subsection 476(2)(a) -

which provides that an application for judicial review of a decision may not be made for a breach of the rules of natural justice, or as it is now called, procedural fairness.

Then down about 10 lines, the critical passage I wish to mention:

Accordingly, these common law rules will be replaced -

pausing there, not diminished, but replaced -

by a codified set of procedures which will afford the same level -

there then appears to be a spelling mistake, "or [sic] protection" - we would suggest it should read "of protection" -

will afford the same level -

of -

protection to individuals but will have the additional advantage of greater certainty in the decision-making process.

GLEESON CJ: Which is the aspect of the codified set of procedures that protects individuals against biased decision making?

MR KEON-COHEN: Bias is excluded, your Honour, by 476.

GLEESON CJ: It is excluded as a ground of review in the Federal Court.

MR KEON-COHEN: But, your Honour, the same level of protection that we point to is now found in the Code, in the statute, and procedures under 476(1)(a) has work to do on this analysis. It might not embrace bias because that has been expressly removed, but the purpose of the Act, nevertheless, is to attempt to provide the same level of protection and in so far as there is some ambiguity or conflict there, we would submit 430 can help to fill that gap.

Now, there is a second reliance I would seek to place on this passage. The passage goes on to mention 26Y and 26ZE. Those have now become section 57 and section 63. Those are found in Part 2 of the Act under the heading:

Part 2 Subdivision AB Code of procedure for dealing fairly, efficiently and quickly with visa applications.

The section mentioned is section 57:

Certain information must be given to applicant

Well, there is a fair hearing rule, and section 63:

When decision about visa may be made -

certain time limits are required.

Your Honour, these provisions are referred to in Ahmed's Case and that has been provided to the Tribunal. In the dissenting judgment of Justice Branson in that case, and his Honour in that case relies upon these provisions as exhibiting obligations of the Tribunal under section 415, the Tribunal standing in the shoes of the Minister. We rely upon it as an indication that one is not confined, as the Minister would submit, to the detailed provisions dealing with the procedures of the Tribunal when looking at 476(1)(a).

Your Honour, the only other submission we wish to make goes to the question of characterisation and it is a short point. The Israelian submissions we rely upon when we refer in this instance to page 16 para 35. The narrow scope of 476(1)(e) is relied upon. That is the exclusions contained in that subclause are confined to the grant of review set out in (1)(d); errors of law et cetera are confined to that. That might be contrasted to the broader application of 476(2)(a) and (b), which exclude natural justice and bias across the board of 476. That suggests therefore that 476(1)(a) can embrace a range of activities, which might be characterised as procedures or might be characterised, for example, as, in the normal ADJR sense, failing to have regard to relevant considerations. The Parliament has sought to confine subclause (1)(d) in a way which has not sought to confine 476(1)(a) and we would suggest, your Honour, that that - - -

McHUGH J: I do not know why you put the weight of your argument on 476(1) in relation to 430. It seems to me it would create very considerable problems. At the moment I cannot see any breach of section 430 by this Tribunal, but I can see a foothold for arguments that it has breached its obligations in terms of administrative law generally. So far as one of them is concerned, failing to take into account a relevant consideration, you cannot rely on it, but what about 476(1)(c) or (b)? If it has failed to ask itself the right question, why can you not say that it did not have jurisdiction to make the decision that it has made because it has failed to ask the question which it should have asked?

MR KEON-COHEN: We would put that submission, your Honour, in our additional contentions. It is one of those that we would rely upon, because that is not something that has hitherto come up in this appeal, but there is no reason why it could not. We do rely upon it now.

McHUGH J: Or it may be said that the decision was not authorised by the Act.

MR KEON-COHEN: Yes.

McHUGH J: If you go back to what has to be determined and you ask yourself the wrong question, you have not made a decision that was authorised by the - - -

MR KEON-COHEN: Yes, your Honour, we agree, with respect, that one would normally expect to be the analysis under AD(JR) in the normal way. We agree that that is an analysis available here. The historical facts of how this case was argued, however, have brought it into this Court on the notice of appeal which confines us to look at 476.

KIRBY J: Is it raised in the original jurisdiction of the court, in the proceedings there?

MR KEON-COHEN: Yes it is, your Honour. The jurisdiction question is squarely raised and we rely upon it.

GAUDRON J: You have filed a notice of contention, have you not?

MR KEON-COHEN: Yes, we have, your Honour, and I took the Court at 4.15 yesterday to that document.

GAUDRON J: Yes, that brings in any ground you can find in 476, does it not?

MR KEON-COHEN: It brings in additional grounds which are there set out and which I summarised for the Court yesterday, being the grounds that, as you have indicated, we can find under 476, particularly (b), (c) and (d).

McHUGH J: You persuade me if I am wrong that having listened to the argument so far - my general approach at the moment is that 430 requires the Tribunal to set out its reasons, set out its findings on material fact; one assumes, in the absence of evidence to the contrary, that it has performed its duty, and then the question you go to from there: given what we see there, is there a breach of the Act? As Mr Tracey said yesterday, 430 is there to see whether the Tribunal has made an error; it is not to, in effect, create errors itself. Some grounds you cannot rely on but, given the width of (b) and (c) in 476(1), and doctrines of constructive failure to exercise jurisdiction and so on, it may be that some of these exclusionary grounds do not have the effect that maybe Parliament thought that they had.

MR KEON-COHEN: Your Honour, we are content with those observations. If that is the considered conclusion of the Court - - -

McHUGH J: Well, it is not, it is not even my considered conclusion, but it is - - -

MR KEON-COHEN: I am not assuming anything, your Honour - I will rephrase that. The appeal that we have before us simpliciter does not allow us to go to those sorts of considerations, but the notice of - - -

McHUGH J: You have the notice of contention.

MR KEON-COHEN: The notice of contention does, and that is before the Court and we rely upon it. That is right. The appeal and the grounds of the appeal and the way Mr Tracey framed his written submissions has caused us to focus in on 476(1)(a). But, before the Court now are the additional grounds, as in the 75(v) proceeding. In our document circulated on Friday, which is a document focusing upon the application for the issue of an order nisi, we traverse the 75(v) issues and these additional grounds, and we seek to rely upon those written submissions.

Your Honours, unless there is anything else, those would be the submissions on behalf of Mr Israelian.

GLEESON CJ: Yes, thank you, Mr Keon-Cohen.

KIRBY J: Can you just tell me whether or not your client and Ms Yusuf are in Immigration detention? Have they been at large?

MR KEON-COHEN: As I understand that my client, Mr Israelian, is not but I believe Ms Yusuf - well, she certainly was in February in detention.

GLEESON CJ: Thank you. Yes, Mr Tracey.

MR TRACEY: If the Court pleases. We undertook yesterday to do a search for provisions equivalent to section 430(1) appearing in other legislation. After the Court adjourns, we will provide the results of those researches to your Honours' associates and they can be then made available. I can tell the Court that they are not extensive and I think the reason for that is largely because 25D of the Interpretation of Legislation Act is relied on wherever there is any general requirement to provide reasons for decision but we will provide the Court with the results of our researches that have turned up a number of provisions in other Acts that are equivalent, or substantially equivalent, to section 430(1).

GUMMOW J: One of the things that worries me a little, Mr Tracey, is that although they are very diplomatic about it, your opponents, in a way, have abandoned the Full Court and reliance on 430 and focused on other matters and we have not really had from you the opportunity to fully develop a response to that because it has come in an ambulatory fashion, as it were?

MR TRACEY: Your Honour, I am hopeful that in the course of this reply I can deal with the issues.

McHUGH J: Are you in a position to deal with the issues that are exercising my mind, namely, that you adopt your arguments about 430 but then you look at what it has done and, arguably, you can say in these cases, and particularly Israelian, arguably, that the decision was not authorised by the Act because it is obliged under the Act to consider the issues and it has not considered the issues, so whether you call it a constructive failure to exercise its jurisdiction, or whatever it is, you get a breach of 476(1)(b) or (c), for instance.

MR TRACEY: Well, your Honour, I am happy to deal with that. As to (b) your Honour will note that it is a very narrow ground, that the person who purported to make the decision did not have the jurisdiction to make it. It focuses on the capacity of the individual.

McHUGH J: To make the decision, the decision which that person made.

MR TRACEY: Yes.

McHUGH J: Now, what significance do you attach to that?

MR TRACEY: Well, the significance we attach to it - - -

GUMMOW J: There are a couple of definite articles, you see.

MR TRACEY: It is the definite article. It focuses both on the person and the decision.

GLEESON CJ: Yes, but would it have meant anything different if it had simply said that the decision maker did not have jurisdiction to make the decision?

MR TRACEY: No, but it would make a difference, your Honour, if it had said the - no, I withdraw that, your Honour. I think that has got to be right, but it, in this case, would be the question of whether the person who constituted the Tribunal had the power to make the particular decision. Now, your Honour will note that in each of the other grounds there is reference solely to the decision. Here it just focuses on the person who purported to make the decision.

McHUGH J: Yes, I know, but if a person professes to make a decision to perform his or her duty to make the decision and because that person has misconceived his or her duty and has therefore constructively failed to exercise its jurisdiction, then it has made a decision which is not authorised.

GAUDRON J: I would have thought it came more easily within (c) than (b), but I would think also, Mr Tracey, that if they do not deal with a part of an application which is based on a ground of the definition of "refugee", you would think that there must be an error of law involving an incorrect interpretation of, in this case, the Convention.

MR TRACEY: Your Honour, if they did not consider it, yes, but an absence of reference to a particular matter in reasons is not necessarily indicative of a failure to consider.

GAUDRON J: That is perhaps the strength of your case but, if there is no finding, no real reference in the face of section 430, why do you not just draw the inference that they did not consider it? I would think it a far preferable inference that they did not consider it than that they deliberately breached section 430. Surely one is to assume that these people made their decision to the best of their ability.

MR TRACEY: Your Honour, just taking Israelian as an example, the question of whether Mr Israelian was a member of a particular social group comprising draft evaders and deserters was raised and considered by the Tribunal. That appears at 130 of the appeal book. It went on to make findings that the applicant's only fears of returning to Armenia were related to the war with Azerbaijan over Nagorno-Karabakh. That appears at 133.

The Tribunal ultimately found that the response that Mr Israelian said that he feared upon return, namely, punishment for his evasion of the draft - he was not a deserter and therefore the material that our friend read to you this morning relating to deserters and consequences for deserters has nothing to do with this. He was an evader. He did not respond to his draft notice. He just stayed here. The Tribunal recognised that he was a deserter and held that the punishment for that - this is at the top of 139:

does not arise from political opinion, religious belief, nationality, race or membership of a particular social group.

They are the findings. These matters were considered.

GUMMOW J: I think, Mr Tracey, two things arise. This case could turn out to be enormously important for your client, first in terms of the construction of these other paragraphs of 476, to which members of the Court have referred, and secondly, one having reached a view of construction and in particular the application in that construction to notions of constructive failure in Sinclair's Case, the mining warden or whatever it is called, the application of construction, once one had arrived at it, to the particular detail of these two cases. I am going to need help on both counts at the moment which I do not sufficiently feel I have.

MR TRACEY: No, I understand, your Honour - - -

GUMMOW J: And I appreciate your position.

MR TRACEY: Really, the area that we are now discussing, in so far as paragraphs 476(1)(b) and (c) are concerned as an alternative basis, really overlap the relief that is being sought under 75(v) and in respect of which we wish the opportunity to put some considered submissions before the Court - - -

GUMMOW J: Yes, that is what I was getting at.

GLEESON CJ: I think we contemplated yesterday that partly because people want to take on board any significance that Aala might have, that we would give the applicants under section 75(v), say, seven days from today to put in further written submissions and you a further seven days to put in written submissions.

MR TRACEY: Yes. Well, your Honour, in that event, what I would ask is that our leave extend to dealing with the issues raised by the notices of contention which overlap, in the same document.

GLEESON CJ: Yes, I thought that would have been comprehended.

MR TRACEY: Yes. In that event, your Honour, I do not think there is anything I can add more usefully at the moment.

HAYNE J: Could I just interject a moment, Mr Tracey? At least for my part, I would be assisted by your considering a hypothetical case of the kind that I put to you in the course of argument. I understand that in Israelian you say that both limbs were, in fact, considered, but I suspect that the underlying principles may be usefully elucidated by reference to a case where that factual answer is not available to you.

MR TRACEY: Yes, your Honour, a case in which two bases under the Convention are asserted and only one finds expression in the reasons.

HAYNE J: One might but one plainly not dealt with.

MR TRACEY: I understand and that will be done, your Honour.

GLEESON CJ: Thank you. Mr Basten and Mr Keon-Cohen, you both have seven days from today to put any additional written submissions you want to put in support of your notice of contention and your 75(v) applications.

MR BASTEN: Could we have until the end of next week, your Honour? It is an extra day.

GLEESON CJ: Yes. How many - that is eight days, is it?

MR BASTEN: Eight days.

GLEESON CJ: Eight days, and you have, Mr Tracey, a further seven days after that. Subject to that, we will reserve our decision in these matters.

AT 11.51 AM THE MATTER WAS ADJOURNED