Dhanoa v Minister for Immigration and Citizenship & Anor

[2010] HCATrans 200

[2010] HCATrans 200

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S319 of 2009

B e t w e e n -

KANWALJIT SINGH DHANOA

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 JULY 2010, AT 1.38 PM

Copyright in the High Court of Australia

MS B.J. TRONSON:   May it please the Court, I appear for the applicant.  (instructed by Fragomen)

MR R.J. BROMWICH, SC:   May it please the Court, I appear with my learned friend, MR T. REILLY, for the first respondent.  (instructed by DLA Phillips Fox)

GUMMOW J:   There is a submitting appearance for the Tribunal, which is the second respondent?

MR BROMWICH:   There is, your Honour.

MS TRONSON:   This case raises two questions about the powers of the Migration Review Tribunal and, to some extent, the Refugee Review Tribunal, to remit cases to the Minister and in what circumstances.  The first question concerns the question of whether the Tribunal has the power to remit cases without any directions or recommendations.  The second question is what are the directions that the Tribunal is permitted to make if it does remit cases and, in particular, what does “specified criterion” mean?

The applicant’s argument is essentially this: first, that the Tribunal does have the power to remit cases to the Minister without directions or recommendations; in the alternative, that the Tribunal has the power to remit cases to the Minister with a direction that the applicant has satisfied a criterion, being something of the kind of an item in Schedule 6A to the Migration Regulations 1994. If the applicant succeeds on either of these arguments then the applicant also argues that the Full Federal Court erred in finding that the Tribunal did not fall into jurisdictional error by not considering whether or not it should have remitted the applicant’s case.

KIEFEL J:   If you are correct about remitter what happens if the matter is remitted?  I am conscious of the fact that the Full Court held and it does not seem to – no issue appears to be taken about it – that nothing in the Migration Act or Migration Regulations indicates that the Minister is bound to designate any security or that a State and Territory was bound to issue such a security. So what is the utility?

MS TRONSON:   I accept there is no obligation to do so, your Honour.  However, as is described in the federal magistrate’s decision, there is now a designated security available.  This means that if the matter was remitted to the Tribunal on the basis of the applicant’s argument it would be bound to consider whether or not it should remit the matter to the Minister.

KIEFEL J:   I am sorry, I did not catch that.  The federal magistrate’s decision said there is a designated ‑ ‑ ‑

MS TRONSON:   There is now a designated security.

KIEFEL J:   Could you take us ‑ ‑ ‑

GUMMOW J:   You have thrown your opponents into some perturbation.

KIEFEL J:   That does not appear to be the basis upon which the Full Court proceeded.

MS TRONSON:   It is paragraph 23.  It is at page 27 of the application book, the last line of that paragraph.

KIEFEL J:   Is that the only reference to ‑ ‑ ‑

MS TRONSON:   I am afraid it is, your Honour, but the Full Federal Court did appear to accept the facts as found by the federal magistrate and it is my submission ‑ ‑ ‑

KIEFEL J:   Where does that appear?

MS TRONSON:   It may be that it is not specifically stated by the majority.  There was no issue taken with the facts as I understand it in the Full Federal Court.

KIEFEL J:   Perhaps if you go to special leave book 57, paragraph 49, the Full Court says:

In the present case the facts said to be centrally relevant to the decision . . . are that there were no designated security deposits in existence ‑ ‑ ‑

MS TRONSON:   Yes, your Honour.  It is my submission that that still does not take issue with the federal magistrate’s finding that there was at the time of his Honour’s decision and, in my submission, since then, that that was available - that it was available at the time of this decision.

KIEFEL J:   So you say there were none at the time of the Tribunal’s decision?

MS TRONSON:   That is correct, there have been ‑ ‑ ‑

KIEFEL J:   The magistrate seems to think that there were at the time of his.

MS TRONSON:   That is right.  Your Honour, I am afraid I do not have formal evidence as to the availability.  I am instructed that the securities are now available.

KIEFEL J:   Well, we will obviously hear from the respondents about that, but does that mean that the Tribunal could have been in error?  Assuming that to be the case, if there were no security deposits available at the time the inquiry would have been empty, would it not?  It would have been an arid answer.

MS TRONSON:   In my submission, your Honour, that is not necessarily the case.  It still could have considered whether to remit the decision to the Minister in circumstances where there was evidence before the Tribunal about how the Minister was dealing with such cases at the time.  That was putting cases into a queue and waiting for designated securities to be available.

KIEFEL J:   It sounds rather like a hypothetical inquiry though, does it not, in the circumstances?

MS TRONSON:   It may, your Honour, but my submission is that it is not so much whether the Tribunal should have made inquiries, although that was one of the grounds below, the ground on which Federal Magistrate Driver made his Honour’s decision, it is whether or not the Tribunal should have given consideration to a factor which was put before it by the applicant.

GUMMOW J:   Does that produce jurisdictional error?

MS TRONSON:   In my submission, it does, your Honour.  It is to the same degree as failing to consider a critical integer of the applicant’s claim.

KIEFEL J:   A failure to consider usually assumes the existence of a fact, does it not?

MS TRONSON:   Or evidence thereof, your Honour, yes.

KIEFEL J:   That is really the problem here, is it not, that the fact of the existence of the security deposits was not present so the inquiry would have been effectively useless?

MS TRONSON:   Except that there was also evidence about how the Minister was dealing with the cases at the time, which was not to simply say, “Well, tough luck, you cannot get the visa, but please wait, when we have designated securities we will give you an invitation”.

KIEFEL J:   That is to people who otherwise complied?

MS TRONSON:   That is to people who are in the same position as the applicant was in at the time of the Tribunal decision where he was only five points away from the qualifying score.

KIEFEL J:   Where does that appear in the federal magistrate’s or the Full Court’s decision?

MS TRONSON:   Sorry, which point precisely, your Honour?

KIEFEL J:   How the Minister was dealing with the matters?

MS TRONSON:   It is considered to some extent at paragraph 72, which is at page 65 of the application book; that is by the majority.

KIEFEL J:   It does not seem to go quite so far.

MS TRONSON:   No, and I would also refer your Honours to page 47 of the application book, paragraph 13 in Justice Moore’s reasons.  Your Honour also asked in passing about the Federal Magistrates Court decision and I refer your Honour back to page 27 of the application book, paragraph 23 where his Honour talks about the “queue”.

Your Honours, the error that the applicant points to in this case is in the decision of Justices Jagot and Foster who formed, as your Honours are aware, the majority of the Full Federal Court, and I would refer your Honours to page 63 of the application book, paragraph 67. The reason that this is important is because the criteria for remitting, or the terms on which the Tribunal can certainly remit decisions, are where it makes a direction that an applicant has satisfied a specified criteria. This is in regulation 4.15 of the Migration Regulations which is at page 79, your Honours.

GUMMOW J:   Page 77.

MS TRONSON:   Page 79, your Honour, of the respondent’s bundle of authorities, and the relevant paragraph is subregulation (1)(b).  This paragraph refers to “a specified criterion”.  As your Honours are aware, the word “prescribed” is used quite commonly in the Migration Act and the Migration Regulations, and it is in fact a defined term. The Full Federal Court, particularly Justices Jagot and Foster, held that the use of the word “specified” in section 31 of the Act, which is at page 28 of the respondent’s bundle of authorities, was used interchangeably with the word “prescribed” and that they therefore must be used to mean the same thing, both in section 31 and elsewhere in the Act and the Regulations. It is my submission that, with respect, this is not the case.

I would refer your Honours to section 31 of the Act, page 28 of the respondent’s bundle, and in particular to subsections (1), (2) and (3). Subsection (2) makes it clear that there are classes of visas in addition to prescribed classes. Subsection (3) allows for regulations to be made prescribing criteria for both visas of a prescribed class and also other classes by using the term “specified”. The way “specified” is used in subsection (3) cannot mean prescribed alone. It must mean prescribed and other classes. In my submission, this means that the words “specified” and “prescribed” are not used interchangeably in section 31, and that therefore their Honours erred in so finding and in relying on that supposed interchangeability.

The consequences of this error can be seen to some extent from the approach of Justice Moore who took quite a different approach, and I would refer your Honours to his Honour’s decision at page 46 of the application book and in particular paragraphs 10 to 12.  His Honour there relied on the case of Pillay, which is in the applicant’s bundle of authorities at page 87, and particularly the extract in Justice Moore’s decision from paragraph 28 of that case.

His Honour found that the term “criterion” is a broad one and the term at the end of paragraph 12 on page 47, the term “specified criterion” could encompass “any of the matters which collectively might give an applicant a score satisfying” clause 880.222 of the regulation.  In other words, his Honour thought that the term “specified criterion” was broader than the term “prescribed criterion”.  Based on this difference between Justice Moore’s approach and the approach of Justices Jagot and Foster the outcome of the case was different, and this highlights the importance of their Honour’s finding with respect to the word ‑ ‑ ‑

GUMMOW J:   Now, can you just go to page 77?

MS TRONSON:   Yes, your Honour.

GUMMOW J:   That sets out the relevant subsection of section 349.

MS TRONSON:   Yes, your Honour.

GUMMOW J:   It then sets out the relevant portion of regulation 4.15.

MS TRONSON:   Yes, your Honour.

GUMMOW J:   Now, what is the question of construction?

MS TRONSON:   The question of construction is whether “specified criterion” means ‑ ‑ ‑

GUMMOW J:   Appearing where?

MS TRONSON:   In the last full line of paragraph (b) of regulation 4.15(1), whether the term “specified criterion” means, as the respondents would have it, a numbered item in a subclass such as clause 880.222, or something else.

GUMMOW J:   Something else here being?

MS TRONSON: The something else here being an item in Schedule 6A to the regulations. If your Honour likes I can take your Honour to the relevant items.

GUMMOW J:   The item being what?

MS TRONSON:   The item about which a direction would have been made was 6A31, which was to do with the IELTS test.

GUMMOW J:   Yes.  It says “specified criterion for the visa”.

MS TRONSON:   That is right, your Honour.  In my submission, that should be read as specified criterion or subcriterion of the visa, if that reading was necessary, and that sort of construction is supported by cases such as Bermingham v Corrective Services Commission of New South Wales. 

I would also refer your Honours to paragraph 72 of the majority’s decision, which is at page 65 of the application book.  In this paragraph their Honours referred to paragraph 36 of the Tribunal’s decision, which is in full at page 8 of the application book.  There is no need for your Honours to refer to it at this point, but in brief it is my submission that paragraph 36 of the Tribunal’s decision involved a finding that the applicant did not satisfy item 6A81, which was the item with respect to the designated security, but did not involve a consideration of whether the Tribunal should have remitted the decision to the Minister with a direction that the applicant did satisfy item 6A31, which was the IELTS test.

GUMMOW J:   Did satisfy in the sense that he got 15 points.

MS TRONSON:   He got 20 points, your Honour.  He had 15 points with the Minister, he now had 20 points.  So there are distinct paragraphs within the items and he satisfied a different one from the one he had satisfied before the Minister.  There are two grounds on which I would submit this case has public importance.  The first is to do with the number of cases that are potentially affected by a case in this Court interpreting the powers of the Tribunal.  One such case is – or one example ‑ ‑ ‑

GUMMOW J:   That is obvious.  We do not need to know about it.

MS TRONSON:   Thank you, your Honour.

GUMMOW J:   What is the second point?

MS TRONSON:   The second point concerns a wider application of principles of interpretation.  In my submission, the powers of the Tribunal should be interpreted in accordance with the purpose and the object of the legislation which establishes it.  I would start here with section 353 of the legislation which is at page 40 of the respondent’s bundle, and it is a section I am sure your Honours are well familiar with.

GUMMOW J:   What does 353 tell us?

MS TRONSON:   Section 353 tells us first of all, in subsection (1), that the Tribunal must operate in a way that is:

fair, just, economical, informal and quick.

Subsection (2), paragraph (b), says that the Tribunal:

shall act according to substantial justice and the merits of the case.

One example of substantial justice which is mandated by the legislation is in section 350.  It is a section which is highly pertinent to the case at hand.  That is because it also involves the qualifying score under section 93.  In my submission, to say that the Tribunal cannot take a change in circumstances into account in a case like this is inconsistent with section 350, which mandates that the Tribunal must take a change in the regulations into account and give the applicant the benefit of the more favourable position. 

I accept that legislation may mandate inconsistent and unfair positions, but it is my submission that, particularly in light of a section such as 353, the powers of the Tribunal should be interpreted so as to avoid such inconsistencies.

KIEFEL J:   What do you say the terms of the direction would have been, if it has regard to the component parts of the points test?

MS TRONSON:   The direction would have been that the applicant must be taken to have satisfied item 6A31.  That item is at page 43 of the applicant’s bundle of authorities, pages 42 and 43.

GUMMOW J:   Yes.

MS TRONSON:   I understand that the applicant had previously satisfied 6A33 before the delegate and before the Tribunal he satisfied 6A31.

GUMMOW J:   He had not yet satisfied?

MS TRONSON:   He had at the time of the Tribunal, so that he had satisfied 6A31, so the direction would be that the applicant must be taken to have satisfied the criterion in 6A31.  There is also an example of such a direction that is included in the bundle of authorities.  That is a Migration Review Tribunal decision, the case of Grien which is at page 95 of the applicant’s bundle of authorities.  I note the time, I would just refer to the last page ‑ ‑ ‑

GUMMOW J:   You seem to suggest that the direction can, as it were, posit some incremental satisfaction as you go along through up and down this process.

MS TRONSON:   It may be something that the Tribunal could take into account, that an applicant had bounced back up and forth between the levels, but briefly, given the time, any single criterion within a subclass of visa – that could be said about any of those.  So it may be that an applicant comes up to the Tribunal having satisfied a new criterion.  He might be remitted to the Minister on the basis that he has now satisfied that criterion.  That can be said no matter which level of generality the criterion is said to be at, whether it is a numbered item, or an item in a schedule.

GUMMOW J:   Even though that satisfaction of that designated criterion of itself is not enough to get the visa.

MS TRONSON:   That is right, but again the same can be said of any of the criteria for the visa, and obviously that is a matter for the Tribunal when considering whether to remit.

GUMMOW J:   The Tribunal is in the position of the Minister?

MS TRONSON:   That is correct, your Honour.

GUMMOW J:   Thank you.

MS TRONSON:   May it please the Court.

MR BROMWICH:   Your Honours, the fundamental problem standing in the way of this application is that the existence of jurisdictional error appears to have been assumed rather than established, and there has been no identification or no attempt to identify any jurisdictional error on the part of the Tribunal, or any error on the part of the majority in the Full Federal Court in saying there was no such jurisdictional error.  It simply is absent.  If I could take your Honours to ‑ ‑ ‑

GUMMOW J:   I think your opponent says the jurisdictional error was the failure to consider giving a permissible direction and, if so, what its content would be.  I think that is what she said to us this afternoon.

MR BROMWICH:   Yes, but in order to get a grant of special leave, in my respectful submission, you have to address what the Full Court said on that topic and identify where the Full Court was wrong because ‑ ‑ ‑

GUMMOW J:   Yes, what did they say?

MR BROMWICH:   The Full Court dealt with this commencing at page 56 of the application book at paragraph 46.  Their Honours then referred to the decision of this Court in SZIAI (2009) 259 ALR 429, identifying that this sort of matter was not going to be a jurisdictional error, and their Honours’ conclusions were then set out in paragraphs 50 and 51 over at pages 57 and 58 of the book. The suggestion made for the applicant is that the Tribunal did not consider the request to remit that, whereas it is clear that the Tribunal did and the Full Court by majority found that it did.

GUMMOW J:   Where did it say that?

MR BROMWICH:   The Full Court constructed that at page 4 of the application book at paragraph 20.  You can see the Tribunal there refers to the request that has been made, in the second half of paragraph 20 of the Tribunal’s decision.  Then at paragraph 33 ‑ ‑ ‑

KIEFEL J:   From that one infers the Tribunal knows that at that time there are no designated securities?

MR BROMWICH:   I believe that is correct, yes, your Honour.

KIEFEL J:   Because of the reference to when the Department invites him to do so.

MR BROMWICH:   That is right.

KIEFEL J:   Because otherwise they would be able to put it in place at that point.

MR BROMWICH:   That is right.

KIEFEL J:   That fits with paragraph 50 of the Full Court judgment, accepting the Minister’s argument that:

information cannot be “centrally relevant” . . . when the only indications available at the time were that the information, even if obtained, would not have yielded a different outcome.

MR BROMWICH:   Indeed, that is precisely my point, with respect, your Honour, that what you are dealing with here in the absence of an identification of jurisdictional error and, along the way, an absence of identification of error on the part of the majority in the Full Court, particularly in their concluding paragraphs on this topic in paragraphs 50 and 51 at pages 57 and 58 of the application book, is that at the end of the day if you do not have a jurisdictional error, one established along the way an error on the part of the majority in the Full Court, the applicant in substance, but not in form, is seeking what amounts to a barren advisory opinion on questions of statutory interpretation and, in that situation, whatever conclusion is reached on the questions of statutory interpretation, the Tribunal decision stands and the outcome in the Federal Magistrates Court remains overturned.

In those circumstances, this is not a proper vehicle, before we even get to the question of statutory interpretation.  So our first point is that gateway has not been addressed and we respectfully submit that what the Full Court has said following on from the recent decision of this Court in SZIAI is plainly correct and therefore this Court would be engaging in an advisory opinion process in relation to this question of statutory interpretation.  Turning then to the merits of the argument, in case that gateway argument was not sufficient to dispose ‑ ‑ ‑

GUMMOW J:   We do not need to hear you any more, Mr Bromwich.

MR BROMWICH:   Very well, your Honours.  Thank you.

GUMMOW J:   Ms Tronson.

MS TRONSON:   Simply, your Honour, in my submission, the Full Federal Court’s finding was that the Tribunal was correct in not deferring its own decision, but it did not make a clear finding with respect to the Tribunal’s consideration of the matter and, in any case, if the Tribunal made a jurisdictional error where this Court is able to review the Full Federal

Court’s decision on that point.  If there are no further questions, those are my submissions.  Thank you, your Honours.

GUMMOW J:   Having regard to what appears in paragraph 20 of the reasons of the Migration Review Tribunal and paragraph 50 of the majority reasoning of the Full Court, there are insufficient prospects of success in demonstrating jurisdictional error to warrant a grant of special leave in this matter.  Special leave is refused with costs.

AT 2.07 PM THE MATTER WAS CONCLUDED