AUK15 v Minister for Immigration and Border Protection & Anor
[2016] HCATrans 36
[2016] HCATrans 036
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S237 of 2015
B e t w e e n -
AUK15
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
HON. JUSTICE MICHAEL LAURENCE BARKER, A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
Second Defendant
GAGELER J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON MONDAY, 15 FEBRUARY 2016, AT 10.32 AM
Copyright in the High Court of Australia
MR I.R. COLEMAN, SC: If your Honour please, I appear with my learned friend, MR L.J. KARP, for the plaintiff. (instructed by Kinslor Prince Lawyers)
MS A.M. MITCHELMORE: If the Court pleases, I appear for the first defendant. (instructed by Australian Government Solicitor)
HIS HONOUR: Well, Mr Coleman, naturally I have read the papers.
MR COLEMAN: Yes, your Honour. Your Honour, the plaintiff moves on a summons filed in this Court on 16 November 2015.
HIS HONOUR: Yes.
MR COLEMAN: The plaintiff moves on an amended application filed pursuant to leave granted by your Honour on 26 November 2015 which was filed on 15 December 2015.
HIS HONOUR: Yes.
MR COLEMAN: The plaintiff relies upon the affidavit of David John Prince, sworn on 24 November 2015 and filed on 25 November.
HIS HONOUR: Yes, I read that affidavit and admit the single exhibit, is it?
MR COLEMAN: My copy, your Honour, refers to them as exhibits, but they appear to be annexures to the affidavit.
HIS HONOUR: Yes, I admit the exhibits, giving them the designation that they have in the affidavit.
MR COLEMAN: If your Honour pleases. The plaintiff, pursuant to your Honour’s directions, filed primary submissions on 15 January this year.
HIS HONOUR: Yes.
MR COLEMAN: Our friends responded to those submissions on 27 January this year.
HIS HONOUR: Yes.
MR COLEMAN: The plaintiff filed brief responding submissions on 5 February this year. Your Honour, by way of overview, may I seek to briefly indicate the series of contentions which the plaintiff urges upon the Court. Your Honour, the starting point, and depending upon your Honour’s view in relation to it, unless either of our asserted errors of law in the court below find favour, the finishing point of the case is that the primary judge erred in law in, we submit, two ways, by failing to find that the Minister’s decision to refuse a protection visa of 29 August 2013 was vitiated by jurisdictional error.
Your Honour would be familiar with the two broad ways in which we contend that there was such error, they being failure of the Minister in the notice given pursuant to section 501(1) of the Act to comply with the provisions of that section in the notice itself, and secondly, what I might, with respect, refer to somewhat shorthandedly as the Minister’s consideration of the character test under section 501(6) of the Migration Act.
HIS HONOUR: Well, I had not actually appreciated what you describe as the first way.
MR COLEMAN: Your Honour, the first contention ‑ ‑ ‑
HIS HONOUR: Where do I find that?
MR COLEMAN: Your Honour will find that ‑ ‑ ‑
HIS HONOUR: The application?
MR COLEMAN: Yes, your Honour, in the amended application, ground 1, particular (a) at page 3 of the amended application seeks to articulate that.
HIS HONOUR: So it is an error in construing and applying section 501G which is a reasons provisions, as I understand it.
MR COLEMAN: That is correct, your Honour, yes.
HIS HONOUR: Right, yes.
MR COLEMAN: In short, your Honour – I will come to it – but in short the issue is whether the primary judge was entitled to, to quote his Honour, “not look at the reasons in an isolated way and have regard to the contents of a briefing paper in order to found certain conclusions”, whereas we contend that such a liberal approach was not in the circumstances permissible. So that is ‑ ‑ ‑
HIS HONOUR: As a matter of law was not permissible; is that what you say?
MR COLEMAN: With respect, we have to contend that and we do contend it as a matter of law and in essence.
HIS HONOUR: Yes.
MR COLEMAN: We rely heavily of necessity on section 25D of the Acts Interpretation Act and the inferences that arise from it.
HIS HONOUR: Yes.
MR COLEMAN: Your Honour, that broadly is the first challenge. The second, your Honour ‑ ‑ ‑
HIS HONOUR: Are you coming back to that, or not?
MR COLEMAN: Yes, your Honour. I was hoping just to try to draw together and put into a broader overall context how we see the task which confronts us and how we, with respect, contend that we can establish one or more of the grounds for relief.
HIS HONOUR: Well, I have read and I think I understand the two particularised errors. You will need, of course, to convince me.
MR COLEMAN: Of course, your Honour, yes. I was not assuming that we ‑ ‑ ‑
HIS HONOUR: Those errors were made in fact, or at least the first of them was made in fact, and secondly, as you would wish to put it, constituted an error of law. I understand that. So where do you go from there?
MR COLEMAN: Well, your Honour, in our respectful submission, if we establish error in either or both of those contexts, the question then becomes what flows from it.
HIS HONOUR: Yes.
MR COLEMAN: Your Honour, our primary contention, in a series of what might be perhaps termed cascading propositions, is that if the Court accepts either of the errors of law asserted by the plaintiff, that the granting of constitutional writs of prohibition and mandamus against the Minister would be a matter within power under section 75(v), and secondly, and as ancillary to the granting of prohibition or mandamus against the Minister, certiorari would issue with respect to the judgment of the primary judge. Your Honour would be quick to apprehend ‑ ‑ ‑
HIS HONOUR: Is that not really inverting the process? You are challenging the decision of the court.
MR COLEMAN: Your Honour, it does involve a proposition which - your Honour, we rely significantly on the very unusual circumstances of this particular case which, as your Honour knows, flows from the Minister personally exercising his powers under the Act.
HIS HONOUR: Yes.
MR COLEMAN: But, your Honour, our broad contention – and there is no shrinking from it or putting it any other way – is that the power conferred on the court by section 75(v) is sufficiently broad to enliven the constitutional writs against the Minister and consequential or ancillary relief by way of certiorari if we can demonstrate that the decision of the Minister was vitiated by jurisdictional error.
HIS HONOUR: That is not the basis on which you have particularised your claim, nor have I understood to date that your primary challenge is to the decision of the Minister. If you were to challenge the decision of the Minister, you would require an extension of time under section 486A of the Migration Act. You have not sought such an extension.
MR COLEMAN: Your Honour, I am reminded that we are of necessity challenging the decision of the primary judge but the contention on behalf of the plaintiff is that the decision of the Minister was vitiated by jurisdictional error which was incapable of being remedied and, your Honour, that necessarily, quite apart from the fact that any attempt to challenge the Minister’s decision directly is, as your Honour says, in difficulty by virtue of time, if the Court finds that the Minister’s decision was vitiated by jurisdictional error and, with respect, in our submission, we are not precluded in the context of seeking to challenge the decision of the primary judge in the exercise of original jurisdiction, we are not, in our submission, constrained from seeking to impugn the Minister’s decision.
The consequences of our seeking to do so are perhaps another issue, but we respectfully submit that there is no legislative constraint on this Court in the exercise of its original jurisdiction under section 75(v) from permitting us to do that.
HIS HONOUR: Are you saying section 486A of the Migration Act is inapplicable?
MR COLEMAN: We contend in the alternative, your Honour, that it is, and our submissions in reply deal with this because our friends have raised it.
HIS HONOUR: Yes.
MR COLEMAN: It is inapplicable, but to the extent that we need a grant of leave to do so, we would seek it. Your Honour will find that referred to at paragraph 2 at the top of page 2. It starts at the bottom of page 1, your Honour.
HIS HONOUR: Yes. All right, so that is your application in writing?
MR COLEMAN: Yes, your Honour.
HIS HONOUR: All right.
MR COLEMAN: Your Honour, it is an open secret of course that the relief the plaintiff sought before the primary judge involved the extending of time to challenge the decision, so we have to acknowledge it is somewhat counterintuitive to be seeking in circumstances where in the court below the plaintiff sought to enliven a jurisdiction, to contend jurisdictional error in the narrow sense in which that would be asserted with respect to the decision of the primary judge.
Hence, your Honour, the somewhat ambitious submission that if your Honour finds that the primary judge erred in law by failing to find that the Minister’s decision was vitiated by jurisdictional error, the plaintiff submits that the constitutional writs nevertheless lie, notwithstanding that in the narrow sense, your Honour, it may well be found that we have not demonstrated jurisdictional error on the part of the primary judge.
HIS HONOUR: I just need to understand the way in which you are now articulating your case. Do you seek relief against the Minister independently of your challenge to the decision of Justice Barker?
MR COLEMAN: No, your Honour, with respect, we cannot.
HIS HONOUR: The relief you seek against the Minister is consequential upon the relief you seek in respect of the decision of Justice Barker?
MR COLEMAN: With respect, your Honour, that is so, yes.
HIS HONOUR: Very well, okay, I understand the way in which you put the case.
MR COLEMAN: Thank you, your Honour. Your Honour’s experience and that of others at the Bar table is far greater than mine in this area, but it does seem to be a very unusual sequence of administrative and judicial events which give rise to this.
HIS HONOUR: This jurisdiction throws up some oddities from time to time.
MR COLEMAN: I am rapidly coming to realise that, your Honour, much to Mr Karp’s chagrin. Your Honour, that is the primary basis that the constitutional writs and certiorari would lie, and in that context.
HIS HONOUR: Yes.
MR COLEMAN: Alternatively, your Honour, if the Court is not persuaded – and I reiterate that all of this is dependent upon our persuading your Honour that the primary judge erred in law. Unless we do that, that is the end of us, to put it crudely.
HIS HONOUR: Yes.
MR COLEMAN: But your Honour, if the Court is not persuaded that constitutional writs are available, then the Court is urged to make a declaration and an injunction pursuant to the constitutional powers vested in the Court, including with respect to the injunction, section 75(v), these, your Honour, not being constrained by the requirement of jurisdictional error on the part of the primary judge.
Our contention is that if we establish an error of law on the part of the Minister and the Court refuses constitutional writs on the basis that we do not thereby establish jurisdictional error on the part of the primary judge, what we do contend is that the less constrained remedies of declaration and injunction are available and would be appropriate to be granted.
HIS HONOUR: What would be the consequence of a declaration that his Honour made an error of law?
MR COLEMAN: Your Honour, if it stopped there, it would have no utility and would not be made; there is no question of that. But, your Honour, it is what flows from it. Once the Court declares, as the highest Court in this land, that the order of the primary judge was erroneous in law, it would, with respect, be curious if nothing flowed from it and what flows from it, in our submission, could flow a number of ways or by a number of means. Firstly, most obviously the Minister would be restrained by injunctive order from relying upon the impugned decision of the primary judge. That of itself of course would not without more remove the Minister’s administrative decision.
What would, in our submission, then have to flow is one of two things. Either the proceedings for an extension of time under the Migration Act would be remitted for redetermination by, whether it be the Federal Circuit Court or, I suspect, the Federal Court, being the Minister’s decision personally, or ‑ ‑ ‑
HIS HONOUR: Sorry, how would that occur?
MR COLEMAN: Well, if your Honour found that there was a basis for intervention but was not prepared to go to what we would respectfully submit is to the logical conclusion which would be to set aside the Minister’s determination, but remit that to the intermediate course of the application to extend time to seek to challenge it, that is a matter that obviously ‑ ‑ ‑
HIS HONOUR: So if were to make – I am really just exploring what would happen if I made a declaration that his Honour made an error of law in the course of determining to refuse the application for an extension of time. What follows from that?
MR COLEMAN: Your Honour, it depends whether in so doing your Honour also made a declaration that the Minister’s administrative decision was vitiated by jurisdictional error. It ultimately probably does not make in practice - is not a decisive fork in the road, as it were, but it would have an impact. What we would submit is that an injunction would issue restraining the Minister from relying upon his decision and that the Court would either, in the exercise of its powers to make orders to give effect to its determinations, set aside – and this is, with respect, the fork in the road – either set aside both the orders of the primary judge and the Minister’s decision of 29 August 2013, or set aside the orders of the primary judge which, in our submission, would leave on foot the application to extend time to review the Minister’s decision.
That, your Honour, would then, in our submission, be effective to dispose of the proceedings either way, either completely – and if your Honour were persuaded that the Minister’s decision was vitiated by jurisdictional error, we would respectfully contend that this Court would set it aside rather than sentence the parties to a course of future litigation which, with great respect to any judge hearing it, it is inconceivable that it could have any other outcome, the highest Court in the land having said the Minister’s decision was vitiated by jurisdictional error, than to extend time to challenge it and uphold the challenge. But your Honour ‑ ‑ ‑
HIS HONOUR: So the gateway to all of this is you demonstrating first error; secondly, error of law; and then third, jurisdictional error on the part of Justice Barker?
MR COLEMAN: With respect, your Honour, the first two points are undoubtedly our case. The third, your Honour, we cannot concede for reasons that your Honour can well understand, that that is make or break.
HIS HONOUR: Yes.
MR COLEMAN: What we have to - with respect, I think we have to contend that the ambit of section 75(v) of the Constitution is sufficiently broad to permit what is in effect a more liberal interpretation of the expression “jurisdictional error” and not to confine it in the circumstances of this particular case, and what implications, if any, it has for other cases, not a matter we ‑ ‑ ‑
HIS HONOUR: Yes.
MR COLEMAN: But your Honour, the final limb, as it were, or the final leg in the path to hopeful success is this, that in terms of your Honour’s question what would be the utility of a declaration, what would happen, your Honour, part of the suite of relief which we would contend would flow from that would be that the Court could and would grant relief by way of certiorari.
We recognise immediately, your Honour, a number of issues arise from the authorities in relation to relief by way of certiorari where it is not ancillary to a constitutional writ of prohibition or mandamus. We respectfully contend that the Court is not limited in the granting of certiorari in that way. Your Honour, with respect, and without I hope playing on words, relief in the nature of certiorari would, we contend, be available under the Court’s powers independent of a writ of certiorari in any event.
But, your Honour, whether it be certiorari in the strict sense of that term or relief in the nature of certiorari, it does, in our submission, in the circumstances of this case, squarely raise the decision of the High Court in Craig with which your Honour is familiar, and the implications of the decision of this Court in Kirk in 2009.
HIS HONOUR: This is for the question of what is the record?
MR COLEMAN: That is correct, your Honour, and our contention in short is that this Court is not confined in ways that by legislation State Supreme Courts are not in relation to relief in the nature of certiorari or should, with respect to the extent that it hitherto has regarded itself as being so bound, as clearly it has in Craig, and in Kirk, as their Honours observed, the Court was not invited to reconsider Craig, but, your Honour, our respectful contention is that the Court can and, with great respect, in 2016 when it is an obligation of all courts and many, if not most, tribunals and administrative decision‑makers to provide reasons for judgment and where appeal lies a recognised ground of appellate challenge that the failure to provide adequate reasons is a ground of appeal, our contention, your Honour, is that the court would reconsider Craig and accept that 30 years after Craig was decided and in circumstances where the issue was not reconsidered in Kirk, the Court would accept as permissible as establishing a basis for certiorari or relief in the nature of certiorari to have regard to the reasons for judgment of the court against whom certiorari is sought.
Your Honour will recall that in Craig – and it was reiterated in Kirk – two concerns were expressed in the context of privative clauses, and they were that, more broadly, expanding the class of document to which regard could be had in the context of a certiorari claim, contained the danger or the evil that it might give rise to some general discretionary appeal or relief in that fashion in circumstances where the privative legislative provisions were squarely set against that possibility.
With respect, as your Honour knows, State Supreme Courts in New South Wales under section 69 of the Supreme Court Act regularly exercise judicial review powers based on jurisdictional error in circumstances where, if not in every case, in almost every case the application is squarely based upon the reasons for judgment. So, with respect, we contend that any relaxing, as it were, to include reasons for judgment would not contain a real risk that the court would thereby be breathing life into some appellate rights which the legislation takes away.
The second point, your Honour, is this, that in Craig and to a lesser extent in Kirk where there was some discussion about reasons for judgment, but certainly in Craig, the discussion referred globally to transcript and reasons for judgment and, with respect, our contention is there is a very considerable and material distinction between transcript and reasons for judgment. The latter, your Honour, reflect what the Court finds in relation to the former. It is no part of our case that anything more than the reasons ought to be able to be considered.
Your Honour, the context of course for this, as we make the submissions to the Court today, is that any person anywhere with access to a computer can access the decisions of courts and there read the reasons for judgment, so that we respectfully submit that there is no legislative reason to the extent that there is perhaps an historical justification, and the judgment of the High Court, the majority in Kirk, traverses the history and advocates some justification for preserving it. But our contention, your Honour, is that it is an unnecessary constraint upon this Court which the Court is not legislatively obliged to continue.
HIS HONOUR: Kirk was concerned with the inherent jurisdiction of State Supreme Courts. We are here concerned with section 75(v) of the Constitution which does not refer to certiorari.
MR COLEMAN: No, and, your Honour, with respect, one of the issues with which - and I am perhaps the only alleged lawyer in the country who struggles with it but, with respect, one of the difficulties one finds in decisions of the High Court, and other courts indeed, is there seems no debate that certiorari will be granted as an ancillary to the constitutional writs of prohibition or mandamus, notwithstanding that, as your Honour says, it does not find expression in the Constitution. Then, your Honour, there are cases such as re Cook and re Ross‑Jones in which certiorari issued in the absence of a constitutional writ of prohibition.
HIS HONOUR: I think that they are explicable on the basis that jurisdictional error was found and that certiorari was considered to be the more appropriate remedy in the circumstances of the case.
MR COLEMAN: With respect, your Honour, that is so. Whether the fact that it was found in those cases means that it has to be when, as your Honour says, it does not find expression in section 75(v) itself, is perhaps moot. But, your Honour, there are judgments particularly of Justice Deane, with which your Honour would be familiar, where his Honour in fairly strong terms expressed his doubts about the availability of certiorari. But, your Honour, to what extent there is a distinction of substance between a writ of certiorari, so‑called, or an order, if that be the term today, as opposed to an order setting aside, in our respectful submission, is a distinction which would not, if the Court concluded that some order setting aside the primary judge’s orders should be made as a consequence of our contentions, I think, with respect, in this Court, to submit that it is certiorari per se or nothing would, in our submission, not be correct. Your Honour, the Court has power, ample power under the Constitution, particularly section 32, to make the orders necessary – I beg your pardon, I think I said Constitution – I meant the Judiciary Act.
HIS HONOUR: I knew what you meant, but can I ask you this? You referred to decisions of Justice Deane – I am familiar with those. Is there any authority to which you can point – I will widen it - is there any statement of any Judge of this Court to which you can point that would lend weight to the argument that where the jurisdiction of this Court under section 75(v) of the Constitution is invoked certiorari will lie for non‑jurisdictional error.
MR COLEMAN: Would your Honour just excuse me a moment? I was going to come to this in a slightly different way but if I could just have a moment.
HIS HONOUR: I am sorry.
MR COLEMAN: No, no. Your Honour, I am reminded that in Kirk at paragraph 56 of the judgment – admittedly, your Honour, it is a discussion about grounds for certiorari, and their Honours there refer to:
The two principal grounds for grant of relief in the nature of certiorari are usually described as “error of law on the face of the record” and “jurisdictional error”.
Your Honour, in our respectful submission, implicit in that statement is the recognition that the two are separate. They may overlap, your Honour. The error of law on the face of the record may constitute jurisdictional error and when one looks in Kirk ‑ ‑ ‑
HIS HONOUR: I understand that.
MR COLEMAN: I am sorry, your Honour, I did not mean ‑ ‑ ‑
HIS HONOUR: My question was focused on non‑jurisdictional error of law.
MR COLEMAN: That, your Honour, was ‑ ‑ ‑
HIS HONOUR: The basis for certiorari in proceedings where the jurisdiction of this Court is invoked under section 75(v) of the Constitution. It is quite a specific question.
MR COLEMAN: I accept that, your Honour. The short answer, your Honour, is that is as close as we can come to pointing your Honour to it.
HIS HONOUR: Thank you.
MR COLEMAN: Your Honour is aware, and we have not sought to resile from it, that there is a division of opinion which goes back at least 30 years in the Court as to whether and in what circumstances certiorari is available. But, your Honour, coming back to – if I may just finish on this point before I hope not at the risk of labouring the submissions before returning to the outline of submissions if I may, our contention ‑ ‑ ‑
HIS HONOUR: Mr Coleman, how long do you expect to be, bearing in mind that I have read your written submissions?
MR COLEMAN: I apologise if I am – and I trust that ‑ ‑ ‑
HIS HONOUR: I apologise if I am taking you out of your way.
MR COLEMAN: No, with respect. Your Honour is helpfully taking me to what I hope I should be addressing. Your Honour, I would have thought in the discussion that has developed, I probably would hope to be about five or 10 minutes just in terms of the jurisdictional matters, if I may refer to them as such, and then to go – I hope briefly, perhaps about I hope 15, 20 minutes – to the two asserted errors, because at the end of the day unless we persuade your Honour of one of those then the rest is ‑ ‑ ‑
HIS HONOUR: All right, I will let you get on with it.
MR COLEMAN: No, I apologise, your Honour, if I am stating the bleeding obvious, as it were, or stating it in a needlessly longwinded way.
HIS HONOUR: I think that my difficulty is that not much that you have stated is obvious, Mr Coleman. You are facing some difficulties with the jurisdictional arguments.
MR COLEMAN: Which, with respect, as your Honour may anticipate, is why we have sought to cast the net in other ways that are perhaps less usual, but, your Honour, if I may refer in view of the discussion, perhaps if it is acceptable to your Honour I will come at it this way. I will pass to the submissions, your Honour, at page 13 and I do not, with respect, propose to read what is there and your Honour has already read.
HIS HONOUR: Yes.
MR COLEMAN: But your Honour will there find articulated rather better than I have probably managed to orally this morning, the submissions in relation to certiorari on the face of the record, and your Honour clearly understands the contention and the basis upon which that is urged.
Your Honour, it is pivotal to the plaintiff’s case that whatever conclusion the Court comes to with respect to the availability of certiorari in the absence of jurisdictional error, if your Honour is persuaded that we demonstrate error of law in the reasons of the primary judge, our contention is that the Court has abundant power to set aside the order as a consequence of so finding, and that if the Court is not persuaded that we establish either that certiorari is available or that if it is that we are entitled to it, then we respectfully submit that does not ultimately make a practical difference because our contention is that this Court would be unlikely, if it were satisfied of jurisdictional error on the part of the Minister in making the original decision and error of law on the part of the primary judge in failing to recognise that jurisdictional error, this Court would, with respect, in our submission, be unlikely, having reached those conclusions to in effect say nothing is going to happen.
Our contention is that an order setting aside as a consequence of finding the error of law on the face of the record via the reasons and, as your Honour says, we are not constrained from having regard to the reasons in that context and jurisdictional error on the part of the Minister would result in the relief which we seek in the various forms articulated in our submissions.
But, your Honour, cutting to the chase, and this appears initially at paragraph 21 on page 7 of the outline, in our respectful submission, your Honour, there are in effect two components of the first challenge. The first, your Honour, is that the Court would accept that a failure to consider the legal consequences of the decision constitutes jurisdictional error. Paragraph 23, page 7, your Honour sees the authorities we cite.
Your Honour, in relation to the second challenge, our friends contend that Justice Buchanan’s judgment does not have, in effect, the imprimatur of the Chief Justice and Justice Katzmann, the other two judges in NBMZ and we make some submissions about that. But in terms of the first challenge, your Honour will find in the judgment of Chief Justice Allsop and Justice Katzmann – does your Honour have a copy of that or ‑ ‑ ‑
HIS HONOUR: Yes, I do.
MR COLEMAN: We do have a copy here for your Honour but we assumed that would be the case. Your Honour, at paragraph 6, their Honours refer to a consideration which is statutory – that is legal – being the consequences of a visa refusal in the context of an application for a protection visa. Their Honours then at paragraph 7 refer to a contrary proposition and, with respect, cite some authority of the highest order in two instances and high authority in others which makes clear that the broad discretion which the Minister had is not constrained by legislation to have regard to those matters. Then their Honours at paragraph 8 pose the question, or state the question:
None of these authorities provides the answer to the question as to whether the legal consequence of the decision must be taken into account.
Their Honours then refer to Sir Owen Dixon’s judgment in Water Conservation, and then at paragraph 9 their Honours express the conclusion that:
The Minister must take into account the Act and its operation -
We respectfully submit that absent this Court expressing a contrary view, and we are not aware of this Court having done so, the Minister was obliged to take into account when making his decision the consequences of refusal of a visa.
That is the first leg of the argument, your Honour. The second limb, with respect, might be called the pointy end and it is essentially the section 25D Acts Interpretation Act argument, and in NBNB which is referred to in paragraph 23 – does your Honour have a copy of NBNB v The Minister? We have a spare if ‑ ‑ ‑
HIS HONOUR: I am afraid I do not, so perhaps you could hand that to me.
MR COLEMAN: We have a copy, your Honour. Yes, thank you, your Honour. I am sorry, I do not know whether we should have provided that earlier but ‑ ‑ ‑
HIS HONOUR: There were many authorities referred to in your submissions, I was not sure which ones I should bring to Court. I had not anticipated this one being referred to.
MR COLEMAN: I could almost rent my Chambers out for the day; they are empty after we brought ours over, but, your Honour, if I may take your Honour to – I will only flag them in passing – paragraphs 124 and 126 in the judgment of Justice Buchanan. Then, your Honour, his Honour cites from – his Honour refers to a number of judgments of the High Court in relation to the operation of section 25D of the Acts Interpretation Act. I do apologise, your Honour, I have misled you. It is in NBMZ, I apologise, at page 50 and it is a series of references by Justice Buchanan.
HIS HONOUR: I have the Federal Court Report version, can you give me the paragraph numbers.
MR COLEMAN: I am sorry, it is paragraph [172], your Honour. I apologise for that knock on, your Honour. At paragraph [173] and following, in the series of judgments to which his Honour has referred, his Honour having set out in the paragraph immediately preceding the terms of section 25D of the Acts Interpretation Act itself, his Honour referred to the judgments of Chief Justice Gleeson in Yusuf at [173], Justice Gaudron at [174], Justices McHugh, Gummow and Hayne at [175], and Justice Kirby.
Our contention, your Honour, is that on a proper application of section 25D and on its proper construction, it was, with respect to the primary judge, not open to his Honour to conclude as he did at paragraph 115 of his reasons that regard could be had to the briefing paper. I stand to be corrected, your Honour, by my learned friend and I cannot point your Honour to any evidentiary or other basis for it but our understanding, your Honour, is that the briefing paper was not served with the notice given by the Minister under the section.
I stand to be corrected. I put that in the belief that that is the case and having made certain inquiries but I cannot point your Honour to any evidence of that – our friends would know – but, your Honour, paragraph 115 your Honour sees the learned primary judge said that:
the reasons for decision should not be read in an isolated way, but together with the briefing paper -
We make two submissions about that, your Honour. The first is that such an approach was so contrary to the dictates of section 25D of the Acts Interpretation Act and to the terms of section 501(1) itself – 501G of the Act, which is the section under which the notice was given, your Honour, the ‑ ‑ ‑
HIS HONOUR: So what aspect of section 25D is invoked?
MR COLEMAN: Well, your Honour, we ‑ ‑ ‑
HIS HONOUR: I thought you were saying to me that the Minister was required to have regard to the legal consequences of his decision.
MR COLEMAN: It is a two‑step argument, your Honour. Firstly, section 25D created, we contend, when you look at the terms of section 501G(1) of the Act, in particular subsections (c), (d) and (e), there was a positive obligation on the Minister to set out findings on material questions of fact, refer to the evidence or other material on which those findings were based.
HIS HONOUR: What is the material question of fact?
MR COLEMAN: The briefing paper, your Honour.
HIS HONOUR: No, what is the material question of fact relevant to your argument?
MR COLEMAN: Your Honour, the issue is in terms of section 25 the reference to the evidence or other material on which the findings, that is that the applicant should not be issued a protection visa, was based.
HIS HONOUR: I see, so it is not a material question of fact.
MR COLEMAN: No, your Honour, it is the evidence or other material.
HIS HONOUR: And what is the other material?
MR COLEMAN: It is a briefing paper.
HIS HONOUR: I see.
MR COLEMAN: And the briefing paper referred to the possibility of the Minister considering acting under – and your Honour will find the actual – it is referred to in the ‑ ‑ ‑
HIS HONOUR: I am not quite following how you are putting this argument. His Honour drew an inference of fact that the Minister in fact took into account in making the decision the possibility of indefinite detention.
MR COLEMAN: He, with respect, on my reading of his Honour’s reasons, he did that by inference, the inference being based on the fact that in the briefing paper the prospect of other options under the Act, or consideration of other options, was raised ‑ ‑ ‑
HIS HONOUR: Yes.
MR COLEMAN: ‑ ‑ ‑ and his Honour, in my respectful submission, reasoned that the Minister being appraised of and asked whether he would possibly consider other options, it could be inferred that the Minister must in that context have considered the prospect of indefinite immigration detention. That is the second limb of our contention. The first is that as a matter of construction, with respect to his Honour, it was not open to him to go beyond the notice itself, but our second ‑ ‑ ‑
HIS HONOUR: But I am really not following this, as a matter of construction of what section?
MR COLEMAN: Of section 501G(1).
HIS HONOUR: Yes.
MR COLEMAN: Your Honour, the primary reason is that the section requires that a notice be ‑ ‑ ‑
HIS HONOUR: Bear with me a moment while I turn that up.
MR COLEMAN: Yes, 501G(1):
the Minister must give the person a written notice that –
and, your Honour, without playing on words, the legislative intention in our submission is clear, it is a written notice, one document. It sets out the decision - subsection (c) - specifies the provision under which the decision was made, sets out the reasons for the decision. So, your Honour, in view of NBMZ, we contend that the Minister was obliged in one written notice, amongst other things, to make clear that he had taken into consideration the prospect of indefinite detention if a protection visa was refused. The only way – and Justice Barker’s decision makes this clear – that that requirement could be saved was if regard could be had to the briefing paper.
HIS HONOUR: Or, on one view, what his Honour was saying was if the notice given under section 501G could be read in context with the briefing paper.
MR COLEMAN: With respect, that is in effect what his Honour said. We respectfully submit that that was not reasonably open to his Honour as a matter of law.
HIS HONOUR: Now, I think you accept that the effect of the decision in Yusuf is that a breach of section 501G is not itself jurisdictional error?
MR COLEMAN: Yes, your Honour, we have to accept that, yes.
HIS HONOUR: What I understand you to be saying is that in light of section 501G, the reasons notified by the Minister must be taken in all cases to express the totality of the considerations to which the Minister had regard in making the decision.
MR COLEMAN: Yes, your Honour.
HIS HONOUR: You go that far?
MR COLEMAN: Well, with respect, the totality of material considerations. There would be matters which clearly would not. But if NBMZ is correct law, is good law, then whatever else need – perhaps I do not have to go that – on reflection I do not know that I do have to go that far – what we would contend is that having considered the prospect of indefinite detention if the protection visa is refused was a mandatory matter or inclusion in a notice.
HIS HONOUR: There are two aspects of this. One is the holding that as a matter of law – if you like, as a matter of construction of section 501, taking into account the consequence of the decision is a mandatory relevant consideration.
MR COLEMAN: That is so, your Honour.
HIS HONOUR: That is the effect of paragraphs 6 to 10 that you have taken me to. This next point is concerned with the circumstances in which it will be inferred that the Minister in fact failed to take account of such a consideration.
MR COLEMAN: That is so, your Honour.
HIS HONOUR: This point, as I understand it, is based on a construction of section 501G which would prevent any inference of fact being drawn in any case beyond that which is contained on the face of the reasons, notified under that section.
MR COLEMAN: With respect, I do not know that we would go quite that far. We certainly do say that something as fundamental as consideration of the prospect of indefinite detention does. With respect, I am not trying to avoid your Honour’s proposition but so much turns on the facts of individual cases that, with respect, I am reluctant to venture beyond what I apprehend we need to venture. The waters are sufficiently fraught without my trying to make them more so.
HIS HONOUR: You are arguing this as a point of law, as a point of construction so I need to understand the ambit of your point of construction. I can understand an argument that it was not open on the evidence in this case to draw such an inference as his Honour drew, but you are putting this as something that flows from the terms of the Act.
MR COLEMAN: That is correct, your Honour, we are. I am reminded, your Honour, of something that – probably the only time today I did not need to be reminded of is that the second limb of this argument, your Honour, is this that if we are wrong in relation to the construction and it was permissible to have regard to the briefing paper we submit that that does not by its terms or any finding made by the primary judge as a matter of logic or inference, establish that the Minister, on balance, must have considered the prospect of indefinite detention.
Our contention is simply this that if, as the primary judge held at 115, a broader consideration of the notice was permissible that, with great respect, still could not save the Minister’s decision because the fact that in a briefing paper it was suggested to the Minister that he consider acting under other provisions of the Act did not mean, and there was no evidence establishing that it necessarily – I withdraw that – it meant on the balance of probabilities it could be inferred that the Minister must have considered the prospect of indefinite detention. Justice Buchanan in NBMZ talked about that, your Honour, and I will not take time going to it but in our respectful submission there is a ‑ ‑ ‑
HIS HONOUR: If you can give me the reference that would be helpful.
MR COLEMAN: Can I supply your Honour with that shortly?
HIS HONOUR: Yes, all right.
MR COLEMAN: His Honour makes clear that it is, to put it crudely and not the way his Honour does, drawing a long bow to suggest that because the Minister may have had his awareness drawn to the possibility of some other way of proceeding that did not provide an evidentiary foundation for drawing the inference that on the balance of probabilities regard must have been had to the prospect of indefinite detention.
Your Honour, I do not know that I have specifically taken your Honour to paragraphs 21 and 22 of the primary judge’s reasons - I am sorry, of our submissions, your Honour - what I have just been addressing your Honour in relation to. I took your Honour to 23. The thrust of the argument is in relation to this – the primary submission is paragraph 21 and the ancillary submission is 22.
HIS HONOUR: Thank you.
MR COLEMAN: Your Honour, unless I have missed something or I can assist your Honour further with that, I think those are our submissions in relation to the first asserted error.
HIS HONOUR: Yes.
MR COLEMAN: The second, your Honour – and our friends have said – with respect, we acknowledge, accurately – that the second challenge in relation to asserted errors of law by the primary judge is articulated somewhat differently before this Court to how it was in the court below. In fairness, beyond pointing that out, I do not understand our friends to raise a Metwally objection to our being able to do so. That does not, as I read the submissions, my friend has not raised against us but ‑ ‑ ‑
HIS HONOUR: We are not dealing with an appeal ‑ ‑ ‑
MR COLEMAN: No, but in terms of our ability to raise it. I pass on, your Honour.
HIS HONOUR: Well, no, your ability to raise it ‑ ‑ ‑
MR COLEMAN: On reflection is ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ is tied to the question of you being able to establish an error of law on the part of his Honour. It is one thing to raise a new point on an appeal, it is quite another to show that his Honour erred in law in not dealing with the point that was not raised.
MR COLEMAN: I stand corrected, your Honour. I was probably sparring at a shadow which was not even there. But, your Honour, the crux of this challenge is encapsulated in our written submissions. At page 10 is extracted from the judgment of Justice Buchanan in NBMZ the statement that:
“The Minister’s decision, therefore, appeals to the premise that the insertion of the new provisions –
That is, the character‑test provisions -
suggests their exercise in the present case. That misunderstands the statutory scheme. Section 501(6)(aa) provides the occasion, but not the reason, for the exercise of a discretion to refuse a visa.”
When your Honour looks at the facts of the various cases dealt with in NBNB and NBMZ and looks at the terms of the Minister’s decision in the present case with respect to the character test and perhaps it is just the reality that all of these administrative decisions materialised at about the same time, but there is a very – we would submit a very strong similarity in the wording of the Minister’s decision in each of these cases. I will take your Honour to them.
HIS HONOUR: But why? Why are you taking me to like cases factually?
MR COLEMAN: With respect, your Honour, only to the extent that our friends submit that Justice Buchanan’s judgment in NBMZ reflects a view of the law not embraced by Chief Justice and Justice Katzmann. Our submissions are that their Honours did not disagree with Justice Buchanan. They simply did not need to, or did not feel the need to decide the point.
HIS HONOUR: But this ground says that his Honour failed to consider a ground of jurisdictional error on the part of the Minister, as I understand it.
MR COLEMAN: That is correct, your Honour.
HIS HONOUR: Leaving aside the point that it was not raised before his Honour for the moment.
MR COLEMAN: Yes.
HIS HONOUR: The basis on which the Minister is said to have fallen into jurisdictional error is a factual basis, is it not? What you would have said to his Honour if the point had been taken was that the proper inference to be drawn on the material before him was that the Minister had conflated the reason why the plaintiff was deemed not to be of good character with the reason why the discretion should be exercised. He had not differentiated those two points in his mind.
MR COLEMAN: That is correct. That is right. As a consequence, it followed that his Honour had not – that the Minister had not conducted the necessarily evaluative exercise which he was obliged to.
HIS HONOUR: I have no difficulty in accepting that if the Minister had conflated the precondition for the exercise of his discretion with the exercise of his discretion that he would have erred in law. I also have no difficulty, subject to what might be said by Ms Mitchelmore, in accepting that such an error of law, on the part of the Minister, would constitute a jurisdictional error. Taking me to the facts of other cases I do not think is going to assist.
MR COLEMAN: Your Honour, with respect, I put it inelegantly. I was not seeking to strengthen the case by reference to it but simply, to the extent that any question of accepting the statement of principle of Justice Buchanan was in controversy, the facts – it is not as though the facts were so different that one could say that was a very different factual scenario. With respect, that is all I am putting. I am not seeking to elevate the argument by reference to it at all, simply to ‑ ‑ ‑
HIS HONOUR: So how do you deal with the basic point that the argument was not run?
MR COLEMAN: With respect, your Honour, this comes back to the fundamental proposition which is that the Minister’s exercise of his powers was vitiated by jurisdictional error which was incapable of being remedied at any level in the process, either administratively while ever that decision stood or judicially in circumstances where we contend his Honour, had it been argued, should – and, it was, with respect, your Honour, argued somewhat obliquely below but we cannot shrink from the fact that it was not agitated by counsel, rightly or wrongly.
HIS HONOUR: I think, quite fairly, your particularisation in paragraph 1(b) of your amended application has, in brackets, “this issue having not been raised before the primary Judge”.
MR COLEMAN: We have never sought to resile – we could not, your Honour, with respect. It would be quite disingenuous of us to come before the Court and do otherwise. But, your Honour, the critical point is – and this is, with respect, I think the response that I have to make. If this were a matter which went to either an issue of fact or a discretionary issue that might be different, but this issue goes to jurisdictional challenges with respect to the Minister’s decision which turn upon documentation which was incontrovertible. There is no question.
If we are correct in our contention that it went to jurisdiction then, it being a jurisdictional error on the part of the Minister, it was, with respect, it was there. It could not ever be cured by the primary judge. But it can, with respect, by this Court in the exercise of its original jurisdiction. What I would submit is that unlike some relief to which a plaintiff may establish an entitlement that relief would be likely to be refused on discretionary grounds. The nature of the basis of the relief we seek here ‑ ‑ ‑
HIS HONOUR: It is one thing to say that the jurisdictional error on the part of the Minister cannot be cured by what is done by the primary judge, it is quite another thing to say – as I understand your argument to be saying – that jurisdictional error on the part of the Minister necessarily infects the decision of the primary judge in circumstances where this ground of error was not raised before the primary judge.
MR COLEMAN: With respect, your Honour, I think - I am reminded, your Honour, in the reasons for judgment of the primary judge – and, with respect, I am not dealing with this somewhat on the run – I am not certain that this responds directly to your Honour’s question – but, at paragraphs 126, 127, the trial judge – in the context of how this was actually raised in the court below said at paragraph 127 - which, with respect, I would submit, provides some answer to your Honour’s point.
But, if your Honour is not persuaded that the issue, having not been agitated squarely below, there are difficulties in terms of relief. With respect, I think we are forced back on to the fact – well, our contention that the Minister’s decision was infected with jurisdictional error which simply could not be cured. It was a decision which, being so infected, should have been seen as such. The fact that it was not by the primary judge may be, your Honour – but I would respectfully submit in view of the discussion at paragraphs 126 and 127 of his Honour’s judgment – was not necessarily. There may have been a different outcome in that Court, but that is speculation.
Your Honour, I see the time and I apprehend – and, perhaps, just for completeness, I should refer your Honour to that passage. The Minister’s decision appears in – it is paginated at page 24 of my copy of the Court book, your Honour. I withdraw that. It is paragraph 24 – yes, it is paragraph 24. It is an annexure to the affidavit of Mr Prince. Without getting into the kind of debate which clearly arose in NBMZ about whether the function of the Minister’s decision was deterrence or the interests of the Australian community – and, your Honour, I was going to refer and have in our submissions to Djalic. Does your Honour have a copy of Djalic available?
HIS HONOUR: No, I do not think I do.
MR COLEMAN: We have it. We will make a copy available, your Honour.
HIS HONOUR: Thank you.
MR COLEMAN: I am sorry, your Honour, I thought we had a copy for you. We make one available immediately.
HIS HONOUR: What point does this go to?
MR COLEMAN: This, your Honour, goes to, in effect, the overarching purpose and objectives of the character test. Your Honour, on the authorities, deterrence of people in immigration detention from committing offences is clearly a valid factor for the Minister to which the Minister can have regard. But, the broader proposition, your Honour, though is that, referring to Djalic – and it is at paragraph 66 of the judgment of the Full Court of the Federal Court, under the heading “Summary” which commences at paragraph 66, subparagraphs ‑ ‑ ‑
HIS HONOUR: Do you have the citation for that case?
MR COLEMAN: Your Honour, I only have the [2004] FCAFC 151 citation. My learned friend has it. It is 139 FCR 292.
HIS HONOUR: Just tell me the proposition you are trying to get from it?
MR COLEMAN: The proposition, your Honour, comes from paragraph 66.
HIS HONOUR: Yes.
MR COLEMAN: The dot points at paragraph 66 being subparagraphs 4, 5 and 6.
HIS HONOUR: How do they fit into your argument?
MR COLEMAN: Then, your Honour, if one goes on to read – having put those propositions – paragraphs 67, 68 and 69, where there is a reference to Akpata v The Minister – paragraph 70. The crux of it, your Honour, is that – and I will quote from paragraph 68 of the judgment:
the protection of the Australian community lies at the heart of the discretionary power -
in this instance, to refuse to grant a protection visa and our contention is, with respect to the Minister, the focus was entirely on matters other than what was at the heart of the discretionary power, namely, protection of the Australian community.
HIS HONOUR: Is this a new point or is it part of your second point?
MR COLEMAN: No, it is part of our – it is in our written submissions, your Honour.
HIS HONOUR: Where?
MR COLEMAN: It is page - 33, your Honour. It is part of the submissions which commence at 31 which go to the character test. Your Honour, our contention is that on no balanced reading of the Minister’s decision can it be seen that the very issue which is, on the authorities, pivotal to – and, with respect, logically so – was considered by the Minister.
HIS HONOUR: Wait a minute, where do I find this as a particularised ground of relief?
MR COLEMAN: Your Honour, it is part of - it is ground 3 of the amended application, your Honour, filed 15 December 2015.
HIS HONOUR: All right.
MR COLEMAN: It is the conflated point, if I may put it that way. It falls under the heading of the conflation point. What we respectfully submit, is that the Minister ‑ ‑ ‑
HIS HONOUR: Did he err at paragraph 25 of his reasons or paragraph ‑ ‑ ‑
MR COLEMAN: With respect, we contend that he did by simply - your Honour, he had referred earlier – and it is referred to in the material which is in Mr Prince’s affidavit – the Minister – it is page 21, attachments G2 to G16 inclusive of the material submitted to the Minister for the purpose of his exercising his discretion. It was referred to in some detail in the material provided to the Minister and it was, with respect, extensive and it was, to a considerable extent, independent.
HIS HONOUR: Well, I had understood you to tell me that you had two points. Do I now understand that there are actually three points?
MR COLEMAN: With respect, your Honour, I am not sure that - one of them may have two parts but, your Honour, cutting to the chase, our contention is that, and it comes back to the interpretation of the character test itself and the way that section 501(1)(vi) is worded. There is no question that the plaintiff failed the character test but, in our submission, it is clear that his failing the test enlivens a discretion to either grant him or refuse him a protection visa.
With great respect to the Minister, our contention is that the Minister failed to have any regard, and demonstrably so, having regard to his reasons, to what commonsense, the scheme, objectives and purpose of the character test and the legislation and what the court said in Djalic and the reasons for it, make clear was, if not the fundamental consideration, a major one. What risk did this man pose to the Australian community if he was given a protection visa?
Now, your Honour, we make absolutely clear no part of our contentions involves any demeaning or downplaying of the criminal conduct for which the plaintiff was sentenced. It was serious. It was inexcusable and it was something that, as the Minister says, the Australian community would, I am paraphrasing, take a dim view of, but, with respect, if that is all that was needed then one asks rhetorically how would anybody ever, having failed the character test and thereby enlivening the discretion under subsection (1), how would anybody ever be granted a protection visa.
The short answer to that is, in our submission, the Minister must consider in all the circumstances, including what has this person done since the criminal conduct, and the Minister had evidence about that, our
contention is that the Minister completely failed to have regard to that and if one said rhetorically, what risk did the Minister think this man presented to the Australian community, in our submission, that question cannot be answered on his reasons. There is no hint and, with respect, to say, as the Minister does, I considered “all other evidence available to me including evidence provided by or on behalf of [the plaintiff]”, with respect, does not in any way give any indication as to the basis. What threat did he present? Would his ‑ ‑ ‑
HIS HONOUR: All right. I think I understand that point.
MR COLEMAN: Your Honour, unless there is anything further that I can assist with, I think they are our submissions and I am indebted to your Honour for your Honour’s patience in hearing them. Thank you, your Honour.
HIS HONOUR: Thank you, Mr Coleman. Ms Mitchelmore. Can you concentrate at least in the first instance on these two or three specific errors?
MS MITCHELMORE: Yes, certainly, your Honour. My primary submission is, of course, that these are not errors that go to jurisdiction ‑ ‑ ‑
HIS HONOUR: I understand that.
MS MITCHELMORE: ‑ ‑ ‑ so, in any event, even if your Honour were to find that they were ‑ ‑ ‑
HIS HONOUR: I will let you tell me about that in a moment ‑ ‑ ‑
MS MITCHELMORE: Certainly.
HIS HONOUR: ‑ ‑ ‑ but I am really wanting to focus on these particular errors.
MS MITCHELMORE: Your Honour, insofar as the first ground of review is concerned, the primary judge is alleged to have misapplied section 501G of the Migration Act by finding that the reasons encompassed more than one document. In my submission, that is not what his Honour did. The allegation was that the Minister had failed to take into account a relevant consideration, namely, the consequences of refusing the applicant’s visa. In concluding that the ground lacked merit, his Honour observed that the circumstances were materially different to those that were before the Full Court in NBMZ insofar as the briefing paper indicated that the Minister’s express indication at the time of making the decision to refuse the protection visa, he also indicated that he, at that time, was prepared to consider the grant of a temporary visa under section 195A of the Migration Act.
So, his Honour inferred at paragraph 105 of his Honour’s reasons that the Minister recognised the legal and practical consequences of his refusal decision, if not ameliorated by a decision under section 195A, could be indefinite detention, referring to other parts of the briefing material where there was reference to co‑ordination of decisions and trying to alleviate any further time in detention, noting that he had been in detention since 2011.
HIS HONOUR: Yes. Now, as I understand it, two things are put against you. One is that as a matter of available inference, the conclusion his Honour drew as a matter of fact was not open to him. Do not worry about that.
MS MITCHELMORE: Yes.
HIS HONOUR: It is separately put against you that section 501G, read alone or in combination perhaps, with section 25D of the Acts Interpretation Act, in some way prevented his Honour from going beyond the formal statement of reasons to draw an inference as to what the Minister did or did not consider in fact.
MS MITCHELMORE: Yes, yes.
HIS HONOUR: That is the point that I would like you to address.
MS MITCHELMORE: Yes, in my submission, your Honour, there is nothing in the terms of section 501G that would preclude, in circumstances where the question is you failed to take into account a relevant consideration, that would preclude looking at the material that was before the Minister at the time the Minister made the decision. Whether or not it expressly finds its way into the reasons might be another thing, but the plaintiff has to establish that it was not considered and, in my submission, on the basis of what is before the Minister, it is open to the primary judge and any judge, for that matter, to look at the material before the Minister at the time.
HIS HONOUR: Are you aware of section 501G or section 25D or equivalent provisions being held to have such an extreme operation?
MS MITCHELMORE: No, I am not, your Honour. There is a decision of the Full Court of the Federal Court in a decision called Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433 and Justice Branson, with whom Justice Goldberg and then Justice Allsop agreed, took - were dealing with a not dissimilar argument where something was not in the reasons but it was nonetheless, Justice Branson considered, open to her Honour to look at the material that was in the briefing paper by way of context in circumstances where an argument is being made, that a relevant consideration was not taken into account. If I could just give your Honour a reference, paragraph 72 and paragraph 78 of Justice Branson’s reasons.
HIS HONOUR: So, I think that is pre‑Yusuf.
MS MITCHELMORE: Yes, it is pre‑Yusuf, your Honour, but, in my submission, there is not anything in Yusuf that would indicate or bear directly on the question that your Honour is here considering.
HIS HONOUR: All right, what about the other point?
MS MITCHELMORE: Well, your Honour, my short answer to that ‑ ‑ ‑
HIS HONOUR: Or points ‑ ‑ ‑
MS MITCHELMORE: Yes, your Honour, my short answer to the second point is that it simply was not put to the primary judge in the way that it is now formulated and in circumstances where it is not an appeal, it is judicial review, in my submission it is not open to be arguing that his Honour made an error of law, still less a jurisdictional error, to fail to have addressed an argument that was not put to him. It just cannot be right, in my submission.
Similarly, the argument that was perhaps being developed at the end of my friend’s submissions, dealing with risk to the community and the point perhaps being sought to be derived from the Full Court’s decision in Djalic, also was not put ‑ ‑ ‑
HIS HONOUR: Not put in those terms.
MS MITCHELMORE: ‑ ‑ ‑ was not a matter that was developed before the primary judge.
HIS HONOUR: Yes, all right. What did you want to tell me about relief and jurisdictional error and things like that?
MS MITCHELMORE: Well, your Honour, I could perhaps deal with that quite shortly. In circumstances where the decision that is before the Court and the primary decision that is the subject of review is that of the Federal Court which is a superior court of record, its decisions are valid unless and until they are set aside.
So, in my submission, there would need to be a grant of certiorari and in order for that to be made, in my submission, consistent with authority which is well settled at this stage, your Honour would need to find jurisdictional error and, in my submission, there is in relation to the first ground not a jurisdictional error and not an error of law in any event but certainly not a jurisdictional error. Nor has the plaintiff established in respect of the second ground, or the second ground with two prongs, as it were, jurisdictional error.
It may be for that reason that my friends go back to the decision of the Minister and seek to impugn that although they do not seek to challenge it directly. As I understand their argument, they have sought an extension of time by reference to their reply submissions.
HIS HONOUR: I think Mr Coleman made clear that the challenge to the Minister’s decision, or at least relief in respect of the Minister’s decision, is consequential upon him obtaining relief in relation to Justice Barker’s decision.
MS MITCHELMORE: Yes.
HIS HONOUR: All right. What do you say about declaratory and injunctive relief?
MS MITCHELMORE: In my submission, in circumstances where the decision cannot be quashed, it sits and stands, in my submission, as the decision of the Federal Court in circumstances where, in my submission, it would be of no utility for this Court to make that order and leave the decision in place in the absence of a jurisdictional error. As a matter of analysis, it does not fit together, in my submission.
HIS HONOUR: Yes, all right.
MS MITCHELMORE: Unless there was anything further, your Honour.
HIS HONOUR: There was just one question. The orders you seek are that the summons be dismissed with costs. Do I take it that you are actually seeking ‑ ‑ ‑
MS MITCHELMORE: Yes, I am sorry, I mean the application.
HIS HONOUR: ‑ ‑ ‑that the application be dismissed with costs?
MS MITCHELMORE: Yes, of course, your Honour, I apologise.
HIS HONOUR: Thank you. Mr Coleman. Mr Coleman, is it correct that the “risk to the community” point articulated by you, I think, as a variation of your second ground, was not put to his Honour in those terms?
MR COLEMAN: I think, with respect, that is so, your Honour, yes. Your Honour, by way of reply, firstly, I think we have cited the decisions of City of Enfield in our written material. Your Honour would be familiar with Justice Gaudron’s – and indeed, from memory, Justice Gummow and/or Justice Hayne in those authorities referring to the technicalities and limitations of the old prerogative writs and suggesting that declaratory and injunctive relief from this Court in the modern era is perhaps something that provides avenues of relief not traditionally as significant as they now are. We rely upon those statements. Your Honour, in terms of – this is the only matter, your Honour will be relieved to know, I wish to make a submission about ‑ ‑ ‑
HIS HONOUR: No, Mr Coleman, I am not hurrying you.
MR COLEMAN: I am conscious of having probably been longwinded, your Honour. I apologise for that. The only matter, your Honour, is this; in our respectful submission, however regrettable it is that the matters were not perhaps agitated differently below, if your Honour is attracted to the submissions that the Minister’s decision was infected by jurisdictional error, then, with respect, that creates – given that it is a jurisdictional argument, it separates it out from the sort – it does not raise the sorts of issues that would arise if this were an appeal, but it does, with respect, create, we would submit and have submitted in our primary material, a real conundrum. Does the Court say on the one hand, we find the Minister’s decision was infected by jurisdictional error but it can nevertheless remain?
With respect, our submission is quite simply that there be no discretionary basis upon which, if we established an entitlement to relief, that the Court would refuse it, and secondly, there is a logic in, in effect, whether by constitutional writs or orders within the abundant original – the powers of the Court in its original jurisdiction – the Court, as the highest Court in the land, would rectify that situation.
That would result, your Honour, in the Minister, whether it was by remitter for the extension of time application to be reagitated, or the decision to be set aside and the Minister redetermine the application of a protection visa would be a matter for the Court. I am reminded that if your Honour found error in the primary judge’s decision, it could be remitted to that court. Mr Karp might be on his feet in 30 seconds, your Honour, if ‑ ‑ ‑
HIS HONOUR: What am I remitting to that court if I find error and make the orders you wish?
MR COLEMAN: It would be the application, which I think is under 477A of the Act, to extend time to review the Minister’s decision before a single judge of the Federal Court.
HIS HONOUR: I understand what you are saying. Now, if I accede to Ms Mitchelmore’s submission that I should dismiss the amended application, do you have anything to say about costs?
MR COLEMAN: We cannot resist a costs order, your Honour, no.
HIS HONOUR: All right. Was there anything further you wished to say?
MR COLEMAN: No, thank you very much, your Honour. Thank you for that.
MS MITCHELMORE: Your Honour, I apologise. I meant to give your Honour a reference in the context of the point about reasons and briefing papers to the decision of the Full Court – Chief Justice Allsop and Justice Katzmann – in NBMZ 220 FCR 1.
HIS HONOUR: Is that one of the cases I have been taken to already?
MS MITCHELMORE: It is, your Honour, yes. It is the Full Court’s decision which is authority for the proposition that the legal consequences of a refusal should be taken into account. Just at paragraph 4, your Honour, of the decision of the Chief Justice and Justice Katzmann, your Honour will see that there is a reference to the manner in which the case proceeded, which is the basis on which Justice Barker was distinguishing the case between what his Honour had before him and what the Full Court had before it, and just simply the point that the Chief Justice and Justice Katzmann refer in that context not only to the reasons, but also to the briefing paper insofar as they are seeking to make a conclusion in that respect.
HIS HONOUR: I see, all right. Mr Coleman, does anything arise out of that interchange?
MR COLEMAN: Nothing that I have not endeavoured to put already, your Honour, no.
HIS HONOUR: Very well. What I will do is adjourn until 3 o’clock, when I will deliver my judgment. There will be no need for the attendance of counsel at that stage. I adjourn until 3 o’clock.
AT 12.10 PM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY
UPON RESUMING AT 2.59 PM:
HIS HONOUR: The application with which I now proceed to deal is in accordance with rule 25.03.3 of the High Court Rules 2004 (Cth). It is an application for an order to show cause in the original jurisdiction of the High Court under section 75(v) of the Constitution. The application was filed in its original form on 13 November 2015 and amended on 15 December 2015 in accordance with leave granted by me by consent on 26 November 2015. The first defendant is the Minister currently administering the Migration Act 1958 (Cth). The second defendant, who has filed a submitting appearance, is the Honourable Justice Michael Barker, a judge of the Federal Court of Australia.
The plaintiff is an Afghan citizen of Hazaran ethnicity who has been assessed to be a person to whom Australia owes protection obligations but who has been refused a protection visa. The Minister then administering the Act made a decision to refuse the plaintiff a protection visa on 29 August 2013 in the exercise of the discretion conferred on him by section 501(1) of that Act after finding that the plaintiff did not pass the character test set out in that section by reason that the plaintiff met the description in section 501(6)(aa)(i) of a person convicted of an offence committed while in immigration detention. The plaintiff subsequently applied to the Federal Court for an extension of time under section 477A(2) of the Act for a remedy to be granted in the exercise of that court’s original jurisdiction under section 476A(1)(c) of the Act in relation to the Minister’s decision. That application for an extension of time, made on 19 May 2015, was refused by Justice Barker on 28 August 2015 essentially on the basis that the grounds on which the plaintiff sought that remedy lacked merit.
The application as now before me in its amended form seeks to challenge his Honour’s decision, which has been published as AUK15 v Minister for Immigration and Border Protection [2015] FCA 938. To understand the nature of that challenge, it is necessary to say something of the context of the Minister’s decision and of the grounds on which the plaintiff sought to rely in seeking a remedy from the Federal Court which his Honour considered to lack merit.
Three days before he made the decision to refuse the visa, the Minister received from his Department a briefing paper which, amongst other things, inquired of the Minister whether he was inclined to consider community detention under section 197AB or a temporary visa under section 195A of the Act in the event that he decided to exercise the discretion conferred on him by section 501(1) of the Act to refuse the visa. By the marks he made on the briefing paper on the day he made the decision to refuse the visa, the Minister indicated that he was inclined to consider the grant of a temporary visa under section 195A of the Act. The Minister on the same day signed a statement of reasons in which he was required by section 501G of the Act to set out the reasons for the decision under section 501(1) of the Act. That statement of reasons contained no express reference to the briefing paper or to section 195A, although it did state that the decision to refuse the plaintiff a visa was not in itself a decision to remove him from Australia and would not necessarily lead to that action.
Although variously expressed, the gravamen of the grounds on which the plaintiff sought to rely in seeking a remedy from the Federal Court was that the Minister failed to take into account that a consequence of deciding to refuse the visa was that the plaintiff would face the prospect of indefinite detention. That consequence, it was argued on the authority of the decision of the Full Court of the Federal Court in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, was a consideration which the Minister was statutorily required to take into account in making the decision. Taking the view, which he explained in paragraphs 104 and 115 of his reasons for decision, that the Minister’s statement of reasons should not be read in isolation “but together with the briefing paper and the issues identified in it”, Justice Barker found the grounds to lack merit on the basis that the proper inference to be drawn from the references in the briefing paper to sections 195A and 197AB of the Act was that the Minister in the course of making his decision under section 501(1) of the Act in fact recognised that the consequence of the exercise of his discretion to refuse the visa could be indefinite detention of the plaintiff if that consequence were not ameliorated by a subsequent favourable decision under one or other of those sections.
In the application for an order to show cause, as now amended, the plaintiff particularises what are essentially two grounds of challenge to the reasoning of Justice Barker. The first is that his Honour erred in construing and applying section 501G in finding that the Minister’s reasons for decision “could encompass a document separate and apart from those reasons”. In written and oral submissions before me, that first ground has been developed this morning also to include an argument that, in light of the Minister’s reasons for decision, it was not open to Justice Barker to infer that the Minister in fact took into account in making that decision that its consequence could be indefinite detention of the plaintiff.
The second ground of challenge is that, despite no argument being put to him that the Minister had so erred, Justice Barker erred in failing to hold that the Minister “had fallen into jurisdictional error in conflating the reason why the Plaintiff was deemed not to be of good character pursuant to s 501(6)(aa) . . . with the reason why the discretion in s 501(1) should be exercised to refuse his application for a protection visa”. A variation of that second ground developed on the plaintiff’s behalf in written and oral submissions is that the jurisdictional error on the part of the Minister which his Honour failed to recognise stemmed from, or perhaps led to, the Minister failing to have regard to “the overriding purpose” of the discretion which the plaintiff characterised as “‘the national interest’, and in particular, the protection of the Australian community”.
The amended application characterises both of those particularised grounds of challenge as errors of law and also as jurisdictional errors.
The ultimate relief sought in the amended application for an order of review in respect of the decision of Justice Barker is alternatively a writ of certiorari quashing the orders he made or a declaration that his Honour made an error of law in arriving at his decision. The amended application goes on to seek a writ of prohibition preventing the Minister from acting on or giving effect to his Honour’s orders. The amended application is framed also to seek a declaration that the Minister made a jurisdictional error in purporting to exercise the power conferred by section 501 of the Act to refuse the protection visa and a writ of mandamus requiring the Minister to determine the plaintiff’s application for a protection visa according to law. However, the plaintiff’s counsel made clear in the course of oral submissions before me that the plaintiff sought to press for that relief against the Minister only in the event of success in obtaining the relief that he seeks in respect of the decision of Justice Barker.
There are multiple difficulties standing in the way of the plaintiff obtaining the relief that he seeks in respect of the decision of Justice Barker. To overcome them would require, as his counsel frankly acknowledged in written and oral submissions, a significant departure from orthodoxy.
The Federal Court is established as a superior court of record. Whether or not made within jurisdiction, its decisions remain valid and effective unless and until set aside. Adopting the language of Justice Mason in R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 374 to 375, it must be taken to be “firmly established” that a writ of prohibition or mandamus will lie from the High Court exercising jurisdiction under section 75(v) of the Constitution to a judge of the Federal Court for jurisdictional error on the part of that judge, but that such a writ will not lie to set aside a judge of that court either for non‑jurisdictional error of law or for an error in finding a fact which it is within the jurisdiction of that court conclusively to determine. The orthodox understanding is that certiorari will lie to set aside a decision of the Federal Court only as ancillary or alternative relief where jurisdictional error is established in an application for relief under section 75(v) of the Constitution. Justice Heydon reflected that understanding when he said with the concurrence of other members of the High Court in Edwards v SantosLtd (2011) 242 CLR 421 at 441, paragraph 53, that:
[t]he writ of certiorari is not mentioned in s 75(v) of the Constitution, but it may issue in the exercise of an implied ancillary or incidental authority to the effective exercise of s 75(v) jurisdiction.
The result, in the words of Justice Deane in Ex parte Marsh at 389, is that:
to the extent to which the Federal Court is validly vested with jurisdiction to decide questions of fact or law involved in the existence or exercise of its substantive jurisdiction in a particular case, it does not lie within the original jurisdiction of this Court to order that certiorari issue for the reason that, in the opinion of the members of this Court, the Federal Court’s decision on those questions is mistaken.
The result is one which does not depend on the view that might be taken of whether reasons for decision constitute part of the “record” for the purpose of establishing error of law on the face of the record, and the result is not affected by anything said about the power of State Supreme Courts to make orders of or in the nature of, certiorari for error of law on the face of the record in Kirk v Industrial Court (NSW) (2010) 239 CLR 531.
The power of this Court to grant a declaration or an injunction where its jurisdiction is regularly invoked under section 75(v) of the Constitution is not confined to circumstances where jurisdictional error is established. But that power will not be used to undermine collaterally an existing decision of the Federal Court which has not been set aside for jurisdictional error.
In Craig v South Australia (1995) 184 CLR 163 at 179 to 180, it was explained by five members of the Court that:
the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction.
That explanation is apt to describe the ordinary jurisdiction of the Federal Court and it is apt to describe the jurisdiction which was exercised by Justice Barker in the present case.
There being no suggestion in the present case that Justice Barker misconceived the nature of the function he was performing in deciding whether or not to award an extension of time under section 477A(2) of the Act, I am unable to characterise either of the errors particularised in the amended application as errors of jurisdiction.
Indeed, it is difficult to see that his Honour erred in fact or in law on either of the particularised bases.
As to the first, I do not think it to be a correct characterisation of his process of reasoning to say that Justice Barker treated the briefing paper as part of the Minister’s statement of reasons. His Honour treated the briefing paper as part of the context in which the Minister made his decision, from which he was able to draw an inference as to a consideration which the Minister took into account in making the decision. That inference was plainly available on the face of the briefing paper and nothing in section 501G, read alone or in combination with section 25D of the Acts Interpretation Act 1901 (Cth), operated to prevent that inference being drawn. The case before him, as his Honour was at pains to point out, was distinguishable on its facts from NBMZ v Minister for Immigration and Border Protection, where, as observed by Chief Justice Allsop and Justice Katzmann at paragraph 4 of their reasons for judgment, “there was no reference to the possibility or the willingness of the Minister to contemplate a visa under s 195A in either the briefing paper to him or in his reasons”.
As to the second of the particularised errors, it is sufficient to say that, in circumstances where the plaintiff was represented by senior and junior counsel, Justice Barker cannot have erred in not considering an argument not put to him.
In the result, I am not satisfied that the plaintiff has been able to establish an arguable basis for the relief he seeks. For that reason, the application must be dismissed under rule 25.03.3(a) of the High Court Rules. The Minister seeks an order for costs and the plaintiff through his counsel has accepted that there is no basis on which such an order can be resisted.
Accordingly, the order I make is:
The amended application for an order to show cause is dismissed with costs.
MR MARKUS: If the Court pleases.
MR COLEMAN: If the Court pleases.
HIS HONOUR: The Court will now adjourn.
AT 3.16 PM THE MATTER WAS ADJOURNED
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