Applicant S1083-2003 v MIMIA

[2006] HCATrans 15

[2006] HCATrans 015

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S170 of 2005

B e t w e e n -

APPLICANT S1083 OF 2003

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 FEBRUARY 2006, AT 10.06 AM

Copyright in the High Court of Australia

APPLICANT S1083 OF 2003 appeared in person.

MR G.R. KENNETT:   May it please the Court, I appear for the Minister.  (instructed by Australian Government Solicitor)

GUMMOW J:   We will hear first from counsel for the Minister so you can then have the chance to respond orally to what he is saying.

KIRBY J:   You need an extension of time, I think, for the bringing of the application, do you not?

APPLICANT S1083 OF 2003:   That is so.

GUMMOW J:   It is out of time, yes.  Yes, Mr Kennett.

MR KENNETT:   Your Honours, there are really four reasons why special leave should not be granted, which are, firstly, the application is misconceived and serves no purpose; secondly, Justice Allsop below was clearly right;  thirdly, his Honour’s decision was an interlocutory one and raised no issue of broader principle; and, finally, even if the matter were to go back to the trial judge, it is difficult to see what relief would be available, let alone effective, in the context of a decision or non-decision under section ‑ ‑ ‑

KIRBY J:   There has been a stream of different opinion in the Federal Court, has there not, on how this section operates?  I think Justice Merkel and Justice Wilcox have taken one view and other judges have taken another.  Is that correct, and, if so, would you just outline what the area of controversy is?

MR KENNETT:   On section 417, your Honour?  Your Honour, I have to say I am not aware of that divergence.  The difficulty that section 417 presents is that for an applicant it is a discretion in the Minister entirely at large where it is expressly provided that the Minister does not even have to consider exercising it. 

KIRBY J:   I realise that, but one problem that potentially arises is, assume officials present the Minister with a bus ticket or a shopping list and you  cannot, as it were, totally exclude judicial review of the Minister’s involvement because it is to the Minister, not to officials, that Parliament has given this power.

MR KENNETT:   That is so, your Honour.  Conceivably, officials could present nothing to the Minister, in an extreme case not tell the Minister at all that the letter had been directed to him or her, but the remedy for that, I would submit, is not an enforcement of any duty under section 417 because there is none.

GUMMOW J:   That is 417(7) that says there is no duty?

MR KENNETT:   Yes, your Honour.  There may be duties arising under public service legislation or under the employment relationship of particular officers in their dealings with the Minister, but that is not pleaded or raised yet in this case and it is not something which would flow from enforcing any duty arising specifically under section 417.

GUMMOW J:   What was the form of the litigation in the Federal Court?

MR KENNETT:   It was begun by an application filed in the Federal Court and there was an amended application which your Honours will see at page 1 of the application book here.

GUMMOW J:   But one application was under section 39B.

MR KENNETT:   That is correct, your Honour. Section 39B was relied on, so was the ADJR Act. The applicant, as your Honour will see, was represented at that stage. The relief that was sought in the amended application is at page 2 and ‑ ‑ ‑

KIRBY J:   You see, the application has been prepared with a degree of cleverness.  It is not asserting that the Minister has to consider it because the statute purports to exempt the Minister from any duty to do so, but it is directed to the officials.

MR KENNETT:   That is right, your Honour. 

KIRBY J:   Therefore, they are not within the ambit of the exclusion from the duty that the Minister is, so we are addressing that issue.

MR KENNETT:   Your Honour, the last of my introductory points was that the power in section 417 is conferred specifically on the Minister, as your Honours are aware, and, further, it is a power that is not matched with a duty to exercise it, let alone a duty cast on individual public servants.

KIRBY J:   Yes, but assume that the officials misinform themselves totally or have guidelines that are incompatible with the scheme of the Act or act on a theatre program or something that is completely immaterial, there must be, in those circumstances, or one would think that there must be some remedy in judicial review to require that the procedures contemplated by the Act are taken, even though there is no ultimate duty in the Minister to consider the matter.

MR KENNETT:   Your Honour, the Act might be thought to presuppose that there is a way for a person to approach the Minister, but it does no more than presuppose that.  The Act does not provide any binding mechanisms for that to occur.

HAYNE J:   Does it provide any mechanism?

MR KENNETT:   All that section 417 provides – it is behind tab 3 in the respondent’s materials – is that the Minister may do something.  The Minister may substitute a more favourable decision.  There is no provision, your Honours will see, for applications to be made or for applications to be considered.  The terminology that is normally used is that one makes a request rather than an application.  The request has no particular statutory status and, as Justice Gummow observed earlier, subsection (7) says in terms that:

The Minister does not have a duty to consider whether to exercise the power ‑ ‑ ‑

KIRBY J:   But that is at the end of the journey.  We are addressing the steps anterior to that end point, and at least and possibly arguably section 417(1) and (3) contemplate that there will be a procedure whereby a person asks the Minister to substitute a decision in the public interest that is different from that which was originally made and that is a decision which, by the Act, is to be made only by the Minister personally and, therefore, that that scheme contemplates that there will be placed before the Minister personally whatever steps are taken by a person to ask that it be considered.  The Minister has no ultimate duty to consider it, but at least the scheme of 417(1) and (3) seems to contemplate that it will go to the Minister personally.  If the applicant wants that to be the subject of judicial review, why is that put out by subsection (7), which is giving an exemption to the Minister?  These are officers of the Commonwealth too that he is calling to account to the law.

MR KENNETT:   The point that I sought to raise, your Honours, was that there is a problem, given the terms of section 417, in framing relief of any utility if one gets to that.

GUMMOW J:   The short point is, is it not, that there is no jurisdiction under 39B because of 476(2), because whatever this was, it was a complaint in respect of the decision of the Minister.

MR KENNETT:   Yes, your Honour, that was the short point upon which Justice Moore reached his decision which Justice Allsop agreed with and, in my submission, it was clearly right.  That was the point on which it went off in the Federal Court and ‑ ‑ ‑

KIRBY J:   But why can there not be a complaint about the decision of the officials anterior to the decision of the Minister which effectively frustrated the consideration or non-consideration by the Minister of the application by the applicant?  It is a logical first step.

MR KENNETT:   Because, your Honour, of the terms of section 476(2) which Justice Moore fastened upon.

KIRBY J:   Where is section 476(2)?

MR KENNETT:   The provision is behind tab 3 in the respondent’s bundle.  Section 476(2) says that:

Despite any other law . . . the Federal Court . . . [does] not have any jurisdiction in respect of a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under –

a number of sections, including section 417.  Justice Moore compared that with the form of section 485, as it then stood, which had been before the Full Court in Ozmanian.  Ozmanian is behind tab 4 in the same bundle and at page 6 of the report one can see the words of section 485 as it then was and it used the same phrase, “does not have any jurisdiction in respect of” a class of decisions ‑ ‑ ‑

KIRBY J:   But, as I understand the argument, the complaint is that this is not in respect of the Minister’s decision or non-decision, and that that is the precise potential complaint, that logically it never got to that stage because the officials have not acted according to law.

MR KENNETT:   Your Honour, the issue that was agitated in Ozmanian was whether conduct of the officials, closely analogous to what one sees in this case, was conduct which could be reviewed under the ADJR Act, section 6. The Full Court ultimately decided that that could not be done because of section 485 and because of the broad terminology used there in respect of a class of decisions. The Federal Court thought that that phrase was apt to encompass the decision itself and also things which would otherwise be thought of as conduct within section 6 of the ADJR Act. Justice Moore, correctly in my submission ‑ ‑ ‑

KIRBY J:   Remind me of what that case was about.  I remember the name.  Did that come to the High Court or not?  I thought it did.

MR KENNETT:   I think not, your Honour.  I think it ended in the Full Court of the Federal Court.

KIRBY J:   I do not necessarily know it.  I do not spend all my time reading refugee cases.  We have enough of our own. 

MR KENNETT:   Yes.  Justice Moore noted the similarity between section 485 as it stood in Ozmanian and section 476(2) as it stood when his Honour ‑ ‑ ‑

GUMMOW J:   Has not this Court dealt with section 476(2) and with the lack of a duty under section 417?

HAYNE J:   That was in S138 or one of that pair of cases that were the privative clause cases.

MR KENNETT:   There were some observations made about the lack of a duty in section 417 in S134.

GUMMOW J:   That is right.  I do not know why you are not directing us to them.

KIRBY J:   As I understand it, the applicant is not suggesting the Minister has a duty – you cannot do that in the face of the statute unless there is some constitutional problem with that section – but is suggesting a point anterior to the Minister.  I thought I read that there were decisions of some judges of the Federal Court who took a view sympathetic to that.  I cannot put my finger on that now.  You do not know of any such decision?

MR KENNETT:   I am afraid I do not, your Honour.  The short point before Justice Allsop, as Justice Gummow rightly points out, is that section 476(2) simply removed the whole matter from the jurisdiction of the Federal Court.  That is a conclusion which ‑ ‑ ‑

GUMMOW J:   In other words, the anterior, if that is how you describe it, cogitations and activities of public servants assisting the Minister would still be in respect of the decision of the Minister, what they are doing.

MR KENNETT:   Yes.

KIRBY J:   Even if they use a theatre program or a bus ticket or a dry cleaning docket to make their decision. I mean, that cannot be right. At least under the Constitution under section 75(5) there would have to be remedies available against them as officers of the Commonwealth.

MR KENNETT:   Your Honour, I would not rule out the possibility that there could be enforceable duties of the officers, as officers, to bring matters to the Minister’s attention, but the point is that where it is ‑ ‑ ‑

KIRBY J:   You say that has not been the subject of this litigation?

MR KENNETT:   That is one point, your Honour, but the other point is that where that is anterior to a possible section 417 decision, section 476(2) removed it from the jurisdiction of the Federal Court, that the applicant could come to this Court, or perhaps some other court, but the way the proceedings were commenced was simply unviable.

Your Honours, there is a further and perhaps even shorter reason for not granting special leave which lies in section 33 of the Federal Court Act, which is behind tab 2 in the respondent’s bundle. The decision which the applicant seeks to appeal from was a decision, of course, of a single judge. It was on an application to extend time to seek leave to appeal. Your Honours will see that section 33(1) says that it is a section which introduces exceptions and regulations to this Court’s appellate jurisdiction and subsection (2) provides that there is simply no appeal from a judgment of a single judge except in the case, which is not relevant here, of a judge hearing an appeal from the Federal Magistrate’s Court.

KIRBY J:   I think this has come up in a number of cases.  We have ‑ ‑ ‑

GUMMOW J:   We have dealt with this before.

KIRBY J:   We do not like this point.

GUMMOW J:   There is a question as to whether this is an exceptional reservation within the meaning of section 73 of the Constitution, is there not?

MR KENNETT:   Yes.

GUMMOW J:   You can achieve a situation whereby you can have the appellate jurisdiction of the Federal Court exercised by one judge and then put a block in front of that.  There is a question of whether that is not eating up the jurisdiction in the sense used by Sir Owen Dixon in Cockle v Isaksen.  I do not think that is your best point really.

MR KENNETT:   If that point were not right, then one would come further down to subsections (3) and (4) and see, in subsection (3), there is a requirement of special leave for an appeal from the Full Court and in subsection (4) there is a requirement of special leave for an appeal from a single judge on appeal from the Federal Magistrates Court.  Neither of those

encompasses the present case.  So if I were wrong in submitting that there is simply no appeal at all, what would follow would be that there would be an appeal as of right.

KIRBY J:   You might be walking right into the lion’s den as far as I am concerned because that is an important point and if that is going to be raised and is going to be the subject of a determination, that is a matter on which the Full Court should pass.

MR KENNETT:   Your Honour, on either interpretation there is ‑ ‑ ‑

KIRBY J:   You are arguing for special leave now, are you?

MR KENNETT:   I am not, your Honour.  I am arguing that there is simply no utility in special leave and, if I am wrong in my primary submission, then the applicant should simply file a notice of appeal in this Court and see what happens.

GUMMOW J:   Yes, that is clever but not forensically astute, I think.  Yes, Mr Kennett, is there anything else?

MR KENNETT:   No, your Honour.

GUMMOW J:   You have heard what has been said.  Is there anything you wish to put to us orally in response?  It is a very technical field of the law.

APPLICANT S1083 OF 2003:   Yes, your Honour.  It is…..have time to file and serve notice of appeal.  It was in response to the application to the honourable Minister which was in front of Justice Moore.  At that time the ‑ ‑ ‑

KIRBY J:   The problem is that Parliament has envisaged that you can apply to the Minister but it has specifically said the Minister has no personal duty to consider your application.

APPLICANT S1083 OF 2003:   Absolutely.  We are not arguing against that, your Honour.

KIRBY J:   I cannot hear you.

APPLICANT S1083 OF 2003:   Absolutely.  I agree with that.  The Minister is under no obligation to consider the application.  The argument is that the appeal did not go to the Minister, the honourable Minister did not get to see the appeal at all.  It was dealt by Ms Connolly, the Manager for the Onshore Protection at that point and it was just rejected at that time.  It did not even go to the honourable Minister.

KIRBY J:   The Act is actually very clear.  It says the Minister does not have a duty to consider whether to exercise the power.  It is a very curious provision.  It seems to contemplate that you can make the application but then, in order to avoid it being the subject of judges looking at it, it says the Minister does not have a duty to consider whether to exercise the power. 

APPLICANT S1083 OF 2003:   But if the application is the same as the first appeal, yes, the Minister definitely does not have to look at it, even if it had been different, under no obligation to have a look at it.  But the first appeal that we had put in to the honourable Minister was in 2000 and this was the second appeal in 2004 ‑ ‑ ‑

GUMMOW J:   Yes.  The present Minister said – and one can understand it really – she did not want people to keep coming back unless there was some new material.

APPLICANT S1083 OF 2003:   The reasons for the second appeal are completely different, your Honour.  The first appeal was only on refugee status, the second appeal in the application book said regarding the circumstances that have changed in the APS from then on.  It is nine years now, but the ‑ ‑ ‑

KIRBY J:   I realise this but this is like the Mogul emperors.  It says that you can make these applications and they go into the system and that the Minister does not have a duty to consider them and we are not going to have courts looking, otherwise, as you will understand, people can keep coming backwards, one after another, making a fresh application for reconsideration and it will never finish.  That is the reason behind it and we have to be faithful, so long as it is valid, to what Federal Parliament has provided. 

APPLICANT S1083 OF 2003:   But in the judgment of Justice Moore as well, it says on page 74 in paragraph 5:

This case has been assessed in the light of your letter.

That is the letter from Ms Connolly.

The additional information provided, in combination with the information provided previously, does not bring the case within the Minister’s Guidelines.

If you have a look at the affidavit of Mr Adrian Joel on page 13, in the last paragraph he has stated:

Please note that this application will be supplemented by extensive documentary evidence, to practically demonstrate the level of integration, which has transpired.

GUMMOW J:   Exactly, because of the delay which you managed to generate.  That is the point that the Minister is making.

APPLICANT S1083 OF 2003:   Yes, your Honour, but before we could supply extensive documentation the application was rejected.  We did not get a chance to put in the evidence.  That is why I have appealed.  If we get a chance to – an extension of time to file and serve a notice of appeal, that is what we need to do, your Honour. 

GUMMOW J:   Is there anything else you wish to say?  Thank you.  Anything in response, Mr Kennett?

MR KENNETT:   No, your Honour.

AT 10.30 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.37 AM:

GUMMOW J:   Mr Kennett, an application was made for extension of time.  Was that opposed?

MR KENNETT:   No, your Honour.

GUMMOW J:   Very well, that extension is granted.

The Court is not convinced that there was any error in the ultimate disposition of the matter in the appellate jurisdiction of the Federal Court. We express no view, however, as to the submissions made today by the Minister respecting the construction of section 33 of the Federal Court of Australia Act 1976. Further, given the particular circumstances of this case, the issues the applicant would seek to agitate do not arise and special leave is refused with costs.

We will adjourn to reconstitute.

AT 10.37 AM THE MATTER WAS CONCLUDED