BMB16 v Minister for Immigration and Border Protection & Anor

[2018] HCATrans 4

[2018] HCATrans 004

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A5 of 2018

B e t w e e n -

BMB16

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

Application for injunction

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON TUESDAY, 30 JANUARY 2018, AT 2.29 PM

Copyright in the High Court of Australia

MR S.D. OWER, SC:   May it please the Court, I appear with my learned friend, MS J.L. McGRATH, for the applicant.  (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:   Yes, Mr Ower.

MR OWER:   If it pleases your Honour, the applicant is scheduled to be removed from Australia tomorrow evening at approximately 10.00 pm Adelaide time.  It is the applicant’s application that an order be granted enjoining the Minister until next Tuesday, 6 February 2018 from removing the applicant from Australia. 

The short period is sought in that it is conceded that the present application for special leave to appeal before the Court is deficient in several respects.  If an injunction is granted it is envisaged that the applicant will propound a proposed amended application for special leave to appeal together with such further supporting affidavit material to explain the delay in bringing the application in the first place.  It would then be envisaged that the Court would call the matter back on to properly consider the merits of whether there are sufficient prospects of success on the application for special leave to appeal to warrant a longer injunction.

I inform your Honour that the Full Court decision which is the subject of the present application was made on 27 October 2017 and pursuant to rule 41.02.1 of the High Court Rules any application for special leave was to be filed by 25 November 2017.  The application was filed in fact on 24 January 2018, a delay of some two months.

There is an affidavit of Ms McGrath filed on the 24th which deposes to some explanation as to the cause of that delay.  While that explanation may not be satisfactory in the circumstances it does provide some explanation of why the applicant was not in a position to commence the proceedings in time.  In effect, the applicant was unable to afford the assistance of legal representation.

In the intervening period after the delivery of the Full Court’s judgment on 27 October, the applicant was detained by the Minister as an unlawful non‑citizen on 9 January 2018.  As I have informed your Honour, the application was filed on 24 January 2018 and on my instructions the applicant was informed at 3.00 pm on Thursday, 25 January 2018 that he was scheduled to be removed tomorrow evening.  I understand that the Court has been provided with a copy of the reasons of his Honour Justice Gageler in BIW17 v Minister for Immigration.

HIS HONOUR:   Yes, thank you.

MR OWER:   We respectfully do not dispute the principles set out by his Honour and in particular we accept that in order for this Court’s jurisdiction to be enlivened we must show exceptional circumstances, namely that there is a substantial prospect that special leave would be granted in respect of this matter. 

We respectfully submit that this is a matter where there is a substantial prospect that special leave would be granted, or at the least on the material before the Court at present, there is sufficient prospect to grant the applicant effectively an indulgence to regularise his position in order that the Court may then properly consider whether there is a substantial prospect that special leave would be granted.

May I briefly expand upon the nature of why it is submitted that there is a substantial prospect? Your Honour would have seen in the material filed that the applicant is an Albanian national who arrived in Australia in November 2012 and as such he was an unauthorised maritime arrival. Subsequently, the Minister determined that he was permitted to make an application for a protection visa and by doing so he fell within the terms of the new Part 7AA of the Migration Act which provided for a form of review described as the fast track review. 

The application for the visa was subsequently refused by a delegate and the applicant sought review by a body described as the Immigration Assessment Authority which is a new body constituted by Part 7AA. That body considered the application for review and did so in a manner akin to the Administrative Appeals Tribunal under Parts 5 and 7 of the Migration Act, namely, that it came to a consideration as to whether the decision before it was the correct and preferable one.

The applicant subsequently applied to the Federal Circuit Court of Australia intending that in doing so the Authority had committed jurisdictional error in that “review” within the meaning of section 473CC was constrained to a review correcting error in relation to the findings that the delegate had found to be dispositive of the application.

The learned Circuit Court judge dismissed the application on the basis that his Honour considered that the Authority had not erred and while he used the phrase “correct and preferable construction” at conclusion it is clear his Honour considered that the nature of the review to be conducted by the Authority was the same as that to be conducted by the Administrative Appeals Tribunal. 

A further application to appeal to the Full Court of the Federal Court of Australia was dismissed. The Court, comprising their Honours Justices Dowsett, Besanko and Charlesworth, each considered that the Authority had not committed jurisdictional error. However, each considered that the nature of review as prescribed by section 473CC was different from the other members of the court.

His Honour Justice Dowsett considered that the scope of the review was only limited by any permissible directions issued pursuant to the regulations. His Honour Justice Besanko determined that, in fact, the review held the same meaning as Part 5 and Part 7, effectively agreeing with the learned primary judge. Her Honour Justice Charlesworth determined that the nature of the review function was one that was sui generis. In fact, the proper construction of section 473CC was that the particular findings upon which the delegate’s decision was based may be reviewed without the finding of error.

HIS HONOUR:   That is not so different in substance, is it, from Justice Besanko?

MR OWER:   No, your Honour, it is perhaps a different emphasis in that her Honour was at pains to conclude that the Drake analysis that had previously applied to the Administrative Appeals Tribunal was not of application here. The issue that would arise in respect of the application for special leave to appeal would be whether the Full Court erred in determining that review in section 473CC was not a review of the kind propounded by the applicant and whether, in fact, the Authority had committed jurisdictional error.

HIS HONOUR:   Yes.

MR OWER:   We respectively submit that there are substantial prospects of special leave being granted in respect of that application for four reasons.  First, as his Honour Justice Besanko found at paragraph 34, at the heart of the application is a question of statutory construction which is a difficult one and the answer is far from self‑evident.

Secondly, and as your Honour has observed, perhaps of less weight, the decision appears to lack a ratio in that each member of the Court has determined a different construction of the meaning of the word “review” in section 473CC, albeit there is less of a difference as your Honour has put to me between his Honour Besanko and her Honour Justice Charlesworth.

Thirdly, the issue that would arise in the application, the nature of review under section 473CC, is also the subject of consideration in a matter presently before this Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection, which is a matter in this Court’s original jurisdiction which was heard in December last year and is presently awaiting judgment.

Fourthly, the issue has the potential to affect a large number of matters. While there is no evidence before the Court in relation to this, it is clear from the provisions of Part 7AA it is envisaged that a large number of applicants who arrived and sought ministerial intervention under section 48A between 2012 and 2014 will have the ability to seek review of that decision by the Authority. As such, the determination of this matter has the potential to affect a large number of matters.

It is correct to accept that the manner in which this matter has come before the Court is somewhat unsatisfactory.  At the present time, the applicant seeks what I have described as a brief indulgence in order to regularise the position and we respectfully submit that there is sufficient merit in the application to permit that to occur.

HIS HONOUR:   Mr Ower, what do you perceive to be the deficiencies in the present application?

MR OWER: First, the application for an extension of time is what the document describes as an application for an extension of time is not in form prescribed under the rules for an application for special leave to appeal. Secondly, the application itself is devoid of any argument as to why the Full Court has erred in relation to proper construction of section 473CC and why, in the circumstances, this Court should entertain the application. It would be envisaged that a proper argued application would be filed.

Furthermore, as I have observed, the application requires an extension of time and while there is an affidavit of Ms McGrath before the Court in relation to that matter that, too, should be described as deficient and we would seek a further opportunity to put some brief material before the Court explaining the applicant’s position as to why he found himself to be impecunious and why he was unable to obtain legal representation in relation to a further application to this Court.

HIS HONOUR:   Just one other question, you took me through the chronology at the outset, as I understood you, you said that the applicant was informed of the Minister’s intention to remove him from Australia on 25 January?

MR OWER:   Those are my instructions, your Honour, yes, last Thursday at 3 o’clock. 

HIS HONOUR:   The application for special leave to appeal was filed on 24 January?

MR OWER:   It was filed on Wednesday.

HIS HONOUR:   Was that the 24th?

MR OWER:   Yes, I believe it was.

HIS HONOUR:   So one day before you were told by the Minister that you would be removed, as it were.

MR OWER:   Yes, your Honour.

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

MR OWER:   Thank you, your Honour.

HIS HONOUR:   Mr Hanks.

MR HANKS:   Thank you, your Honour.  I have just one point of clarification, if I might.  This would remove the anachronistic element which your Honour has identified, the lack of sequence.  We think it is likely that the applicant acknowledged, on 23 January, receipt of a communication that he would be removed from Australia.

HIS HONOUR:   I see.  So you waited two months, then told him you were intent on removing him and then he applied for special leave, is that it?

MR HANKS:   We think that is the sequence, and it would make sense, we think, but ‑ ‑ ‑

HIS HONOUR:   I am pleased to hear it, Mr Hanks.  This is the same issue, more or less, as M174, is it not?

MR HANKS:   This presents, we think, one issue only; M174 presents a series of issues.

HIS HONOUR:   I am sorry; you are quite right.

MR HANKS:   One of which ‑ ‑ ‑

HIS HONOUR:   Is the nature of the review for which the fast track provides.

MR HANKS:   ‑ ‑ ‑ is the nature of the review which may or may not be resolved by the Court in that case, as there are other issues that might get in the way, if I can use that loose description, your Honour.  Certainly, we would acknowledge that this issue was raised in argument and through submissions in M174.  Your Honour has the advantage, of course, of me in that your Honour is a member of the Bench that heard that case.

HIS HONOUR:   It is not yet decided, as you know, but there was a considerable amount of argument as to the nature of the review for which the fast track procedure provides.

MR HANKS:   So I have been instructed, your Honour.  We accept what our friend, Mr Ower, says.  The critical point here will be, if it is not already, and we say it is already, whether there are exceptional circumstances that would justify interlocutory relief.  In particular, can it be said that there is a substantial prospect that the application for special leave, once it is permitted to be made, will be successful? 

If I could just add there as a footnote the second factor, the balance of convenience, we readily accept is one that ought not to trouble the applicant.  The reason for that is that if he is removed from Australia he would not be able to enjoy the fruits of any success that he might ultimately achieve in an appeal to this Court. 

HIS HONOUR:   Yes. 

MR HANKS:   Your Honour understands why that is.

HIS HONOUR:   I do. 

MR HANKS:   The balance of convenience we can put on one side.  We go back to the simple question:  whether there is a substantial prospect that special leave will be granted.  We can only address that, your Honour, by reference to the admittedly deficient material that is before the Court.

HIS HONOUR:   Are you talking about the substance of the application or the reasons for delay?

MR HANKS:   Both, your Honour.  We think that ultimately we need to drill down to the substance of the foreshadowed application for special leave.

HIS HONOUR:   Yes.

MR HANKS:   But before we get there, we need to ask this question:  is there an explanation for the delay of a little over 60 days – perhaps 63 or 64 days delay.  In our submission, nothing has been put forward by way of evidence that could explain the extent of that delay.  If we could move then to what I would describe as the underlying substantial question ‑ ‑ ‑ 

HIS HONOUR:   Just before you pass from that, what appears to be suggested is that he had no money until recently to engage solicitors to prepare the application.  It is fairly Delphic, I grant you, but that seems to be the thrust of it.

MR HANKS:   We do not understand him to say that he now has money.

HIS HONOUR:   Quite so.  Nor would you expect him to do so given the position he is in.

MR HANKS:   Then there must be some other explanation, your Honour.  If he lacked money before to engage solicitors and lacked it now, then there must be some other explanation.

HIS HONOUR:   There frequently is in these applications, as we both know, Mr Hanks.

MR HANKS:   Yes, we do.  I can only say that there is no adequate explanation given for that delay.

HIS HONOUR:   Granted it is not yet in an adequate form, but if the explanation were that he had not funds with which to engage solicitors and it was only because of the largesse of someone that he finally found one to do it for nothing or for less than the going rate, would that not be a sufficient explanation?

MR HANKS:   It would, your Honour.  Of course your Honour is, if I might be excused, speculating at this point.

HIS HONOUR:   I am.

MR HANKS:   And I am dealing with the material that is before the Court.

HIS HONOUR:   Very well.

MR HANKS:   Your Honour might think that that is a rather hard‑hearted approach but, in our submission, it is a practical approach.  We can only deal with the material that is before the Court.

HIS HONOUR:   Yes.

MR HANKS:   Could I then go to what is said to be the amended application for an extension of time for special leave to appeal.  It is apparent that the document has been given a form that one would expect to find in an application for special leave.  Your Honour will see the headings in the document.

HIS HONOUR:   Yes.

MR HANKS:   Part 1, Part 2, Part 3, et cetera.  The brief statement of the applicant’s argument ‑ ‑ ‑

HIS HONOUR:   Is brief.

MR HANKS:   That is probably the only thing that can be said of it, that it is brief.  With respect, it is not a statement of argument; it is an assertion.  If I might put it this way, your Honour, there is no attempt to identify some underlying point of principle that might be thrown up or disclosed by the application for special leave.  Our friend, Mr Ower, says we want an indulgence to correct that.  We say that your Honour ought to decide the matter on the basis of the material before the Court.  If your Honour does that, your Honour will be driven, we would say, to the conclusion that there is no substantial prospect of a grant of special leave on this material.

HIS HONOUR: Mr Hanks, given what Mr Ower has said in his submissions as to the significance of the special case in M174, would it be wrong for me to assume that the argument, or at least a principal part of it, when and if it is formulated, will be along the lines of the argument in M174, that the review which is called for by section 473CC is in the nature of a legal review rather than a merits review of the kind that the AAT undertakes?

MR HANKS:   No, it would not, I think your Honour could reasonably assume, if the applicant is given the opportunity to turn this sow’s ear into a silk purse, and I think that metaphor, although a little too graphic, is a fair description of what would be needed.

HIS HONOUR:   So what we are faced with, it seems, is an application which may be determined by the outcome in M174?

MR HANKS:   It may, your Honour.

HIS HONOUR:   Indeed it is not too improbable that it will be, although one cannot say at this stage with any certainty.

MR HANKS:   There is a distinct chance that it will be.  We would accept that, your Honour.

HIS HONOUR:   If we were in the position that the form of application had been regularised, would it not be fair to say that that is a substantial prospect of special leave being granted?

MR HANKS:   I need to work out how many qualifications there are there, your Honour.

HIS HONOUR:   Granted the papers are not in order, for the reasons which one might speculate about, if they were in order and the point were presented squarely that the argument was the same as was presented in M174, would there not be a substantial prospect of special leave being granted in this case – until and unless, at least, M174 has been decided?

MR HANKS:   We accept that, your Honour, yes.  If that were to happen and your Honour, as your Honour has already indicated, could reasonably assume that given the opportunity and given the model of the argument presented in M174, the foreshadowed special leave application would assume a similar shape.  So that is a reasonable assumption.

HIS HONOUR:   If this man were a commercial litigant one would not hesitate to say that he perhaps should not be given any further chance to regularise his application, but given what he is, is it improper to wait and see for the week which is asked for whether the regular application emerges?

MR HANKS:   I suspect that is a rhetorical question, your Honour.

HIS HONOUR:   Not really.  Are there are reasons to the contrary?  That is really what I am seeking.

MR HANKS:   Yes, I understand that, your Honour.  My responsibility is to appear here to resist the application that is before your Honour.

HIS HONOUR:   Of course.

MR HANKS:   I find it difficult, however, not to accept that in the particular circumstances of this case, given the nature of the applicant’s situation and the real possibility that a proper foreshadowed application for special leave could be prepared, I cannot resist the idea that it would be appropriate for your Honour to give that opportunity.  Is that helpful?

HIS HONOUR:   It is very helpful, thank you.  If such an opportunity were to be granted to the applicant now, it would be necessary to enjoin the Minister or could one assume that, until that period of time has elapsed, the applicant would not be removed from Australia?

MR HANKS:   I need to get some instructions briefly, your Honour.

HIS HONOUR:   Thank you.

MR HANKS:   I am instructed that it would not be necessary for the Court to enjoin the Minister in those particular circumstances.

HIS HONOUR:   Thank you very much, Mr Hanks.  Mr Ower, you have heard what has passed between senior counsel for the Minister and me.  If you were given until 6 February to regularise the application, upon your instructions might one be relatively confident that by then the application would be put into regular form?

MR OWER:   Yes, your Honour, together with such further affidavit material as we have seen fit to put before the Court.

HIS HONOUR:   Yes.  You have also heard the Minister’s willingness to, as it were, stay his hand until the 6th without need for injunction.  Are you satisfied with that or do you press for the injunction?

MR OWER:   I do not press for an injunction in those circumstances, your Honour.

HIS HONOUR:   Thank you. 

MR OWER:   If it pleases your Honour.

HIS HONOUR:   This is an application for interlocutory injunction to restrain the Minister for Immigration and Border Protection from removing the applicant from Australia before the determination of the applicant’s application for special leave to appeal from a judgment of the Full Court of the Federal Court of Australia given on 27 October 2017.

The Full Court held in effect that the Immigration Assessment Authority had not erred in approaching the task of review for which section 473CC of the Migration Act 1958 (Cth) provides as one that requires a “fresh consideration of the application which led to the decision under review”.

The application for special leave to appeal was filed out of time on 24 January 2018, approximately two months late and one day after the applicant was notified by the Minister of the Minister’s intention to remove the applicant from Australia.  The application for interlocutory injunction is made by summons dated 29 January 2018, supported by an affidavit of Jane Louise McGrath, Solicitor, affirmed on 29 January 2018, and there is also an affidavit of Ms McGrath, affirmed on 24 January 2018, in which she deposes very briefly to reasons for lateness in filing the application for special leave.

As matters stand, the application for special leave is irregular and, as is conceded by counsel for the applicant, requires some considerable amendment, in particular to include a statement of argument in support of the contention that the scope of review provided for by section 473CC is limited to legal review.

Principles which apply to an application of this kind are well established and were most recently considered by Justice Gageler in BIW17 v Minister for Immigration and Border Protection & Anor, Matter P3/2018, in which his Honour published an unreported judgment yesterday, 29 January 2018.  In brief, an injunction of the kind which is sought will be granted only in exceptional circumstances and, accordingly, where, as here, the basis of the application for injunction is to preserve the subject matter of litigation, it is relevant to consider whether there is a substantial prospect that special leave will be granted, whether the grant of injunction would cause loss to the respondent and where the balance of convenience lies.

Here it has not been suggested that the grant of injunction would be productive of any loss to the respondent and it is not disputed that the balance of convenience lies in favour of the applicant.  The matter turns essentially on whether there is a substantial prospect that special leave to appeal would be granted.

Senior counsel for the Minister points to the irregularity of the form of the application for special leave and has submitted that until and unless it is regularised, any attempt to determine whether there is a substantial prospect of special leave being granted would be, in effect, an exercise in speculation. Quite fairly, however, he acknowledges, in view of what has been submitted on behalf of the applicant, that, assuming the application is put into a form which identifies the point that was argued in proceeding M174/2016 as to the nature of a review provided for by section 473CC, it might then be taken that there is a substantial prospect of leave being granted.

In the circumstances, counsel for the applicant has sought a brief period of time until 6 February 2018 in which to put the application into proper order and an injunction limited for that time to restrain the Minister from removing the applicant from Australia.  In turn, the Minister has signified that, if no more than the brief period of time until 6 February 2018 is granted to allow the applicant to put the application into order, he will not seek before then to remove the applicant from Australia.  Counsel for the

applicant have signified that the applicant would be satisfied with that course.

In those circumstances, what I propose to do is to adjourn the further hearing of this application until Wednesday, 7 February at 9.30 am.  At that time, I shall be in Canberra, and therefore we will have to deal with the matter by video link.  But obviously that is not impossible or even impracticable. 

I shall further order that the applicant have leave to file and serve by no later than Tuesday, 6 February at 3.00 pm an amended application for special leave and any further affidavit or affidavits upon which he may seek to rely in support of the applications for interlocutory injunction and extension of time in which to file and serve the application for special leave to appeal. 

I shall note the Minister’s assurance that until the further hearing of the matter he will not seek to remove the applicant from Australia and, subject to what counsel may say, I would be disposed to reserve the costs.  Is there anything further sought at this stage, Mr Hanks?

MR HANKS:   Your Honour, just rising to – on the question of costs ‑ ‑ ‑

HIS HONOUR:   We can have a fight about it next week once it becomes clear.

MR HANKS:   In the limited time that we have available.

HIS HONOUR:   Well, we will have as much as needed, whether it is at 9.30 or some other later hour in the day.

MR HANKS:   It is our submission that our client should receive his costs of today because he has been brought here to answer an application which is plainly not ready to proceed.  Our friends who appear for the applicant have frankly sought an indulgence from the Court and have been given that indulgence.  That indulgence ought not to be at the expense of our client.  I wish to say nothing else, your Honour.

HIS HONOUR:   Yes, thank you.  Mr Ower, any response?

MR OWER:   I would ask that the costs be reserved today, your Honour.  There is some force in what my learned friend has said but the matter is better determined at the completion of the application.

HIS HONOUR:   Thank you.  Counsel for the Minister has sought costs of the adjournment upon the basis that it has been necessitated – gentlemen, I

digress from what I was saying to inform you that I am now advised that I am otherwise entertained at 9.30 am on Wednesday, the 7th and, therefore, I will adjourn the further hearing of the application to 4.30 pm on Wednesday, the 7th, trusting that that will not cause too much inconvenience to counsel. 

I resume:  counsel for the Minister has sought costs for the adjournment by reason of it having been caused by the fault of the applicant.  There is nothing which apparently can be said in opposition to that.  In the circumstances I propose to determine the costs straight away.  The Minister’s costs thrown away by reason of the adjournment shall be paid by the applicant, otherwise the costs of the application thus far shall be reserved.

MR HANKS:   As your Honour pleases.

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

AT 3.05 PM THE MATTER WAS ADJOURNED