CLV16 v Minister for Immigration and Border Protection & Anor

[2018] HCATrans 266

[2018] HCATrans 266

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S165 of 2018

B e t w e e n -

CLV16

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

Application for special leave to appeal

GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2018, AT 11.45 AM

Copyright in the High Court of Australia

MR V.A. KLINE:   If your Honours please, I appear for the applicant on a pro bono reference from Deputy Registrar Grey.  (instructed by the applicant)

MR G.R. KENNETT, SC:   May it please the Court, I appear with MR B.D. KAPLAN for the first respondent.  (instructed by DLA Piper Australia)

GAGELER J:   Yes, Mr Kline.

MR KLINE:   Your Honours, in a nutshell what we have is a member of the IAA making a decision, then realising that he had not taken into account a certain submission and fearing that he had fallen into jurisdictional error, purported to make a second decision.  The applicant argued successfully before the primary judge that section 473EA of the Migration Act prevented the member from making that second decision.  The respondent then argued successfully before the Full Federal Court that utilising the Plaintiff S157‑type of argument that the first decision had been – suffering from jurisdictional error had been no decision at all and therefore section 473EA was no impediment to the making of the second decision.

GAGELER J:   It was a Bhardwaj argument.

MR KLINE:   Yes.  So obviously if leave to appeal were granted we would be seeking to uphold the decision of the primary judge and my learned friend would be seeking to uphold the decision of the Full Federal Court but my learned friend also says that he would be seeking to file a notice of contention that there was no jurisdictional error anyway.  So that is the ‑ ‑ ‑

GAGELER J:   Which seems an extraordinary complication.

MR KLINE:   Possibly.  So as your Honours know, Part 7AA is new and developing.  I think it is uncontroversial to say that Parliament introduced Part 7AA with the express intention of – it is called fast track - to provide a regime where applications from this particular group of applicants was dealt with swiftly.  As a result, I think it is also uncontroversial to say that Part 7AA is different ‑ ‑ ‑

GAGELER J:   Sorry, just a moment.

MR KLINE:   Yes.

GAGELER J:   Go ahead, Mr Kline.

MR KLINE:   Thank you, your Honour.  I was saying I think it is also uncontroversial to say that Part 7AA is as a result quite different from Parts 5 and 7 of the Migration Act.  The questions that are arising are what are those differences and how do they impact legally.  So there are a number of, I would say, interesting and important questions that this Court, with respect, would want to consider on appeal.

GAGELER J:   Well, you have to say that the Full Court’s construction of section 473EA(2) was erroneous.

MR KLINE:   Yes.

GAGELER J:   That is really the only question.

MR KLINE:   Yes, and your Honours have read my written submissions as to how I do say that.  But I think that there are questions that arise of general significance, that is, for example, whether the Plaintiff S157 type of argument is applicable to this very different regime or at least to this part of that regime, whether, as I say in my written submissions, section 473EA(2) is a deeming provision of a sort that does not appear in the other legislation and, most importantly, I suppose, whether the lead‑in provision, section 473BA, must be taken into account when interpreting section 473EA and that lead‑in provision, as your Honours know, requires the Authority to pursue an objective of providing a mechanism of limited review which is efficient and quick.

Now, my learned friend says in his written submissions that this application does not raise any questions of law of public importance, but only involves the application of established principles.  We argue strenuously that that begs the question.  That is the question – whether the differences in Part 7AA are significant enough that one cannot apply established principles.

GORDON J:   By that do you mean Bhardwaj?

MR KLINE:   Yes, yes, your Honour.  Now, Parliament has adopted a number of measures which are different from the regimes found in Parts 5 and 7 to create this speedy process, if you will.  It has done so by removing certain aspects that an applicant might otherwise expect to have the benefit of.  So clearly they have looked at what is going to slow down a process and the obvious answers to that are the hearing, so that has been taken away, and your Honours will appreciate, to a large degree there is a slowing down process created by tendering fresh evidence on the application as one can do in the AAT.  They have taken that away.  We would say they have also taken away by the process set out in section 473EA the opportunity to have another go – for the Authority to have another go because that too would slow it down. 

My submission would be that the Full Federal Court is wrong and if this Court does not correct that this will lead to a flood of applications for revisiting in the IAA.  Your Honours will appreciate that – I mean in this case we are looking at a situation where the member himself or herself, I cannot remember - herself I think - the member herself decided to revisit.  But if the precedential value of the Full Federal Court’s decision is allowed to stand that enables every applicant or every applicant’s representative to make the submission to the Authority that they might have suffered from jurisdictional error and they should have another go.

Your Honours will also appreciate that 95 per cent or more probably of these cases are handled by un‑legally qualified migration agents for whom that sort of submission whereby they retain the carriage of the matter would be so much more attractive than if it had to go to the Federal Circuit Court and they had to hand it over to lawyers.

The final thing I would say is that my friend has said that your Honours should take into account the question of his – the possibility that he will raise that notice of contention if leave to appeal were granted and this would make the applicant’s submissions redundant.  I would first just say on that, with respect, that does this Court want to consider on an application for leave to appeal what might be done or might not be done by the respondent should leave be granted.

Furthermore, as I have set out in my written submissions – it is the law reporter in me, I suppose, coming out, but I think it is very important, his assumption that it would render matters – notice of appeal would render the applicant’s argument redundant depends on the order in which the Full Court chose to deal with the various issues. 

I will not run your Honours through all the permutations of this.  I am sure you will accept if I tell you that depending on the order in which your Honours – the order in which the Full Court dealt with this and the results in relation to the various arguments, including the notice of contention, the results could be two situations where the court would make two holdings that were ratio decidendi, one situation where the court would make one holding only with ratio decidendi and a final situation where the court would make one holding that is ratio decidendi and one relating to the issues in this case. 

That is obiter dicta but given that this Court is the pinnacle of the judicial structure, a reasoned obiter dicta is only technically different from a ratio decidendi in the sense that no intermediate Court of Appeal would say we are not following the High Court because technically what they said about this issue was obiter.  That is all I need to put unless your Honours need my assistance in any other way.

GAGELER J:   Thank you, Mr Kline.  Mr Kennett, we do not need to hear from you.

We see no reason to doubt the Full Court’s construction of section 473EA(2) of the Migration Act.  Special leave to appeal is refused.

Do you press for costs, Mr Kennett?

MR KENNETT:   We do, your Honour.

GAGELER J:   Special leave to appeal is refused with costs.

AT 11.56 AM THE MATTER WAS CONCLUDED