BMB16 v Minister for Immigration and Border Protection & Anor

[2018] HCATrans 10

[2018] HCATrans 010

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide   No A5 of 2018

B e t w e e n -

BMB16

Appellant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON WEDNESDAY, 7 FEBRUARY 2018, AT 4.27 PM

Copyright in the High Court of Australia

MR S.D. OWER, SC:   If it pleases your Honour, I appear for the applicant with MS J.L. McGRATH.  (instructed by MSM Legal)

MR P.J. HANKS, QC:   Your Honour, I appear with MR P.H. d’ASSUMPCAO for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Thank you.  Mr Hanks, I was about to ask you in view of the application that has been filed, do you wish to contend that the Commonwealth be free to send this man out of the country before the application for special leave is dealt with?

MR HANKS:   Your Honour, what we propose is your Honour first deal with the application for extension of time for the filing of such an application for special leave.  If that application is successful we think that will clear the way for the grant of interlocutory relief.  If it fails, there will be no basis for the grant of such relief.

HIS HONOUR:   Very well, it just occurred to me that the – whether or not leave should be granted to file out of time would largely depend on the possibility of the ground of appeal succeeding.  I appreciate it is also dependent on the circumstances for delay but I doubt that is going to be a big consideration in this case, although I have not yet formed a view about it.

MR HANKS:   No, your Honour, the question will be whether there is a substantial prospect of the grant of special leave so as to justify extending the time for the making of that application.  We accept that that is going to be the second question and, in our submission, your Honour, the determination of that question will then flow into the application for interlocutory relief. 

HIS HONOUR:   Given that M174 stands reserved for judgment and that it will presumably be determinative of the issue, or may be, is it appropriate for me to, as it were, consider the likelihood of success of the very point that may fall to be decided in that case on an interlocutory application such as this?

MR HANKS:   Well, I want to make a submission that will avoid that dilemma, your Honour.

HIS HONOUR:   Yes.

MR HANKS:   The submission that I make will be that nothing in the current amended application for special leave canvasses the issues in M174 as identified in the question set out in the case stated.  That will be the

submission that I make.  Therefore, this application for an extension of time, attached as it is to the proposed special leave application, will either have substantial prospects of success or not on its own merits, not on the coat‑tails of M174.

HIS HONOUR:   Very well.  Thank you.

MR HANKS:   Thank you, your Honour.

HIS HONOUR:   Yes, Mr Ower.

MR OWER:   In respect of the proposed course of action by the Minister, the question of whether there should nevertheless be interlocutory relief despite the delay is, in my submission, inherently connected to the merits of the proposed application. 

HIS HONOUR:   Yes.

MR OWER:   Your Honour will have two affidavits from Ms McGrath, the first filed on 24 January 2018 and the second filed on 6 February 2018.  They provide some explanation as to the period of delay in respect of bringing the application for special leave to appeal.  We concede that the explanation, namely, that the applicant was not in a position to pay the relevant fees is somewhat unsatisfactory.  We submit to your Honour that in the circumstances of this case your Honour will need to assess whether that unsatisfactory explanation is such that it outweighs any consideration of the merits of the application lying underneath. 

As your Honour has already intimated to my learned friend, the question of whether there should be an extension of time does not revolve solely around the question of the period of delay and the explanation for that delay, merits of any application - it is clearly a significant matter and we say that in this case whatever may be said about the unsatisfactory nature of the explanation, the delay is relatively short, a period of two months over the Christmas period and that there are substantial prospects of special leave to appeal being granted.

I also address this question of whether there is a sufficient overlap between this case and Plaintiff M174. I apprehend the Minister’s submission to be that the particular questions posed to the Court in M174 do not directly address the question of the nature of review under section 473CC. In terms of the document that has been handed up to the Court, the extract from the submissions made by the Minister in M174 we note that paragraph 4 records the question before the Court is what, if any, relief should be granted.

We understand the Minister’s submission to be that as a matter of discretion review should not be permitted in this Court of a decision of a delegate in circumstances where there is full merits review or a wide form of non‑legal review conducted by the Immigration Assessment Authority. In other words, the question that is directly posed by this application, what is the nature of the review under section 473CC will also need to be considered in respect of any exercise of discretion in this Court in refusing relief.

While we accept that the Court may not need to consider the question of the proper construction of 473CC in M174, it is highly likely that it will do so if only in dicta, and we consider that that in itself is a very good reason why this application today for there to be interlocutory relief should be granted.

HIS HONOUR:   Yes.

MR OWER:   I do not propose to further address your Honour on the merits of the application.  I think on the basis of the last occasion your Honour understands the nature of the argument and to that extent we rely upon the documents described in the second amended application for special leave.

HIS HONOUR:   Yes, thank you, Mr Ower.  Mr Hanks.

MR HANKS:   We had understood from the last occasion, your Honour, that the applicant was being given the opportunity to, in effect, recast the application for special leave so as to pick up the issues agitated before the Full Court of this Court in M174.  We take that from the transcript on the last occasion on pages 10 and 12.  We do not think that the applicant has done that. 

As your Honour can see, the statement of special leave question that appears in the current application for special leave - and I will use that simple description of the document - set out in paragraph 3, effectively at the top of page 3.  Your Honour can see the two questions that are posed there:

Is a review under Part 7AA of the Act a limited or legal review, in the sense it is restricted to the correction of error . . . held to be dispositive by the delegate?

If so, did the Authority fall into jurisdictional error by going beyond the ambit of the review -

That is what we understand to be - what are said to be the special leave questions but when we go back to - and this is why we have provided your Honour with an extract from the special case in M174 - particular questions were posed or answered by the Court and the central questions are 1, 2 and 3.  Was there a failure by the delegate to comply with section 57(2) of the Act? 

I might interpolate, your Honour, we understand that that is an attack on the primary decision, the decision of the delegate, not of the Authority, by reason of a failure to accord procedural fairness in accordance with 57(2) and, if so, question 2 asks, did that failure have a consequence that there was no fast track reviewable decision.  Your Honour can see how that is articulated in the questions in the special case. 

If there is a…..of that kind that would vitiate the purported decision so that there could be nothing to be referred by the Minister to the Authority.  So that is the first part of the second question, so that an essential precondition, the second part of the second question, for the valid exercise of power by the Authority under 473CC of the Act is not satisfied. 

With respect, your Honour, those two questions are quite distinct from the special leave questions that the applicant seeks to raise in this matter.  They all go the question of absence of jurisdiction because of some weakness, one might say, some fatal weakness in the primary decision, the decision that was to be reviewed. 

The third question raises a contention of legal unreasonableness on the part of the Authority in failing to exercise its statutory powers to get or to consider new information.  Now, in our submission, that third question does not, in any way, intersect with the special leave questions posed or that would be posed if an extension of time were to be granted.

We do not understand that the fourth question has any potential to intersect, that is – if I might say so, your Honour, with respect, a typical winding‑up question or concluding question to be found in a special case.  It assumes answers to the preceding questions.  So, if there is no intersection, as we say there is not, then the question whether there are substantial prospects of special leave being granted which, your Honour, we submit is a critical question in deciding whether to extend time for the making of that application, that stands or falls on the matters that are raised within this case.  It does not stand or fall on anything that is a waiting decision by the Court in M174. 

What we have here, with respect, your Honour, is a unanimous judgment of the Full Federal Court in the sense of orders made by the court to which each member of the court subscribed.  That was an order to dismiss the appeal from the Federal Circuit Court.  No doubt the outcome, the orders were arrived at via different pathways but, nevertheless, the orders were unanimous. 

Might we say that looking at paragraph 39 of the current application for special leave where our friends who appear for the applicant have written that the judgment of the Full Court lacks ratio, we want to take the opportunity to dispute that proposition.  In our submission, the ratio of the Full Court’s judgment is that it is not a jurisdictional error for the Authority to undertake and make its own findings of fact in place of findings made by the delegate when conducting a review; and, secondly, that a review by the Authority is not confined to the correction of error on the part of the Authority. 

Now, your Honour will recall that the matters that were agitated by the Full Court were essentially that a review of the kind before the Authority was limited to the correction of error, that it was not open to the Authority in conducting the review to make findings of fact which displaced the findings made by the Authority.  What is clear, we submit, your Honour, is that the Full Court has rejected those propositions.  In our submission, that is the clear ratio, the reason for decision of the Full Court’s judgment.

So, in our submission, your Honour has here a proposed application for special leave that does not hinge on or attempt to ride on the result or any comments that might be made in the course of reaching a result in M174.  One has a proposed application for special leave that will either have a prospect of success or will not depending on whether there is a basis on which this Court could interfere, or intervene, more accurately, and consider unanimous orders made by the Full Court.

Now, in those circumstances, I put to your Honour that there is no substantial prospect of a grant of special leave.  What we have is simply a judgment of the Full Court.  Let us look to the particular aspect of the review process.  It has come to a unanimous conclusion as to the elements of that process, no doubt for different reasons but, nevertheless, a unanimous conclusion.  In our submission, that conclusion is not tended by sufficient doubt to raise a substantial prospect of a grant of special leave. 

I cannot leave the Minister’s submissions without making the comment, your Honour, that the revised evidence before – or the placement evidence before the Court in the affidavit of Ms McGrath made on 6 February this year still leaves significant gaps in the explanation.

There remains this hole in the explanation.  We know that in October and November 2017 the applicant did not have funds to retain a solicitor,

but we do not know why that situation changed.  No explanation is given, and the absence of a complete explanation – I think it is entirely appropriate to describe the explanation that has been given as somewhat unsatisfactory, if I might borrow the words from Mr Ower.

HIS HONOUR:   I follow that, thank you.

MR HANKS:   Thank you, your Honour. 

HIS HONOUR:   Mr Ower, anything in reply?

MR OWER:   The position of the Minister seems to be first that the matter has no relationship to the determination of the Court in M174 and, secondly, that it lacks inherent merit on its own basis.  In terms of the second submission, your Honour has already heard my submission addressing you on the last occasion and in particular noting Justice Besanko’s judgment that this was a difficult question of statutory construction upon which minds would differ.

But in terms of the overlap between this case and M174 it is, with respect, a rather superficial analysis that the Minister invites the Court to undertake in that it is my understanding of the nature of the argument before the Court in M174 that the plaintiff there contends that the decision of the delegate is invalid on the basis that there has been a failure to comply with section 57(2) of the Act.

The second question, which is on page 16 of the document that has been provided to your Honour, raises the question as to whether there is in fact a fast track decision in circumstances where the delegate’s decision is otherwise invalid.  As the last part of the question states, does that have the result that the Authority has no jurisdiction to conduct a review under Part 7AA of the Act? 

Parties in M174 both put submissions as to the proper construction of 473CC in a similar manner to which parties in application for special leave to appeal do.  In particular, we would refer your Honour to paragraph 46 of the plaintiff’s submissions filed in M174 on 23 June 2017 which in summary raise the question of whether there is a limited form of review. 

We would also refer your Honour to paragraph 14 of the written submissions of the first defendant filed on 31 July 2017, noting that your Honour does not have those documents presently before you.  If I may briefly read from that paragraph, the Minister’s second submission in the matter is that “The core function of the Authority under Part 7AA is the same as that of the Tribunal under Part 7, being to arrive at the correct or preferable decision in the case before it according to the material before it.”

That is a citation to the judgment of his Honour Chief Justice French in Minister for Immigration v Li.  So the Minister’s argument squarely relies upon the same construction that his Honour Justice Besanko came to in this case and, indeed, your Honour will recall that the learned Solicitor‑General during the course of oral argument in Plaintiff M174 handed up to the Court and relied upon a copy of the Full Court’s decision in this case.

While we accept that on its face the questions raised in this case are stated in a different form from that raised in Plaintiff M174, there is clearly a substantial prospect of the very issue at the heart of this application for special leave being determined in the course of that case, irrespective of any inherent merit that this application may have – and we maintain that it does – clearly going to be a matter that will be the subject of consideration by this Court in quite short time.  If it pleases your Honour, those are my submissions.

HIS HONOUR:   This is an application for interlocutory injunction to restrain the first respondent from taking steps to remove the applicant from Australia pending determination of an application for extension of time in which to seek special leave to appeal from a decision of the Full Court of the Federal Court of Australia. 

When the matter last came before me I adjourned the further hearing of the application in order to afford the applicant time in which to put into proper order the form of application for extension of time and the proposed form of application for special leave. As the matter then appeared, on the basis of such documents as were available and of the submissions of counsel for the applicant, the proposed essential ground of application for special leave was whether section 473CC of the Migration Act 1958 (Cth) contemplates that the review for which it provides is what may be described as a full merits review or is limited to the correction of error. The applicant contended that the Full Federal Court erred in holding that the review which is contemplated by the provision is not limited to the correction of error.

In the form in which the application for extension of time has now been put, it is apparent that that is the issue which is sought to be agitated as the principal ground for application for special leave. 

The application for interlocutory injunction pending determination of the application for extension of time in which to seek special leave is opposed upon the basis that, in form, the question sought to be advanced in the proposed application for special leave is not one which was identified in the questions referred to the Full Court of this Court for consideration in proceeding M174/2016.  Senior counsel for the first respondent also opposes the application because it is said that the unanimous decision of the Full Federal Court from which special leave to appeal is sought does not permit of significant doubt as to its correctness.

I accept the first respondent’s submission that, at least in point of form, the principal question sought to be advanced in the proposed application for special leave in this proceeding is not one identified in the questions of law that were referred to the Full Court in proceeding M174/2016. Plainly, however, the question of the nature of review for which section 473CC of the Migration Act provides was a question which was the subject of argument and which may fall for determination by the Full Court in proceeding M174/2016. 

It is possible, because the matter has not yet been decided, that proceeding M174/2016 may be determined on another basis, thus obviating the need to consider the nature of review under section 473CC in that proceeding. But, as at present advised, it appears to me that there is at least a real likelihood that the determination of the questions submitted for consideration of the Full Court in proceeding M174/2016 may result in an authoritative determination of the question sought to be advanced in this proceeding as to the nature of the review contemplated by section 473CC of the Migration Act 1958.

The application for interlocutory injunction is further opposed upon the basis that the evidence which has been adduced by the applicant in explanation of the reason for delay is, to a considerable extent, unsatisfactory; and there is force in that submission.  But it appears to me, and I did not take it strenuously to be disputed by the first respondent, that the application for extension of time is likely to turn principally upon the likelihood of success of the application for special leave as opposed to the reasons or lack of sufficient reasons for extension of time.

In the circumstances, I am not disposed at this stage of the proceeding to determine the application for interlocutory injunction on the basis that an extension of time for making application for special leave to appeal should not be granted or that it is so improbable that it would not be granted. 

It appears to me for the reasons I have expressed that there is at least a real likelihood that proceeding M174/2016 may be determinative of the issue of the nature of review provided for by section 473CC and that depending upon what, if any, answer to that question is given in proceeding M174/2016, the application for special leave in this case and, therefore, the application for extension of time in which to bring it, may be determined by that proceeding.

In those circumstances, I conclude that until the determination of the application for extension of time for special leave to appeal in this proceeding or until further order it is appropriate that the first respondent be enjoined from taking steps to remove the applicant from Australia.  I assume that the application for extension of time and for special leave to appeal is unlikely to be determined before a decision is handed down by the Full Court in proceeding M174/2016. 

If a decision were to come down and it be unfavourable to the applicant in this proceeding, it would be appropriate for the first respondent to apply to discharge the injunction which I propose to grant.  Conversely, if a decision were handed down in proceeding M174/2016 which is in favour of the applicant’s application for special leave in this proceeding, I should expect that the application would proceed to determination, having regard to the decision in proceeding M174/2016. 

Mr Ower, do you give the usual undertaking as to damages?

MR OWER:   I do, your Honour, on behalf of my client.

HIS HONOUR:   Thank you.  For those reasons, upon the applicant by his counsel giving the usual undertaking as to damages, the first respondent, the Minister for Immigration and Border Protection, is this day until determination of the applicant’s application for extension of time for special leave to appeal, or until further order, prevented from taking any step whether by himself, his officers, servants, agents, delegates or otherwise howsoever to cause or permit the applicant to be removed from Australia.  Is any further order sought, gentlemen?

MR OWER:   If it please your Honour, I would seek an order for costs of the application subject to your Honour’s order on the last occasion - the costs be determined as costs in the cause of the special leave application.

HIS HONOUR:   I should think that in an application such as this the appropriate order for costs is one that the costs be reserved.  Do you have any opposition to that, Mr Hanks?

MR HANKS:   I do not, your Honour.

HIS HONOUR:   Thank you.  It is further ordered that each party’s costs of this application be reserved.  Might I say, not by way of order but by observation to counsel, that if the circumstances change, and by that I principally have in mind what may or may not occur in proceeding M174/2016, it would not be inappropriate, depending on the circumstances, for one or other party then to make an application for further injunction or for the discharge of this injunction.

MR OWER:   If it pleases your Honour.

HIS HONOUR:   I am grateful to counsel for your assistance, thank you. 

AT 5.02 PM THE MATTER WAS CONCLUDED