Gajjar v Minister for Immigration and Citizenship

[2012] HCATrans 231

[2012] HCATrans 231

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B37 of 2012

B e t w e e n -

NISHITHKUMAR ARVINDBHAI GAJJAR

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Application for order to show cause

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 21 SEPTEMBER 2012, AT 10.21 AM

Copyright in the High Court of Australia

MR D.C. RANGIAH, SC:   Your Honour, I appear for the plaintiff.  (instructed by Hartnett Lawyers)

MR P.G. BICKFORD:   May it please the Court, I appear for the defendant.  (instructed by Clayton Utz)

HER HONOUR:   Mr Rangiah, the matter is set down for directions today so I am not quite sure how many issues we are intending to get through, but I see that you have additionally filed a summons for an enlargement of time.

MR RANGIAH:   Yes, your Honour.  Your Honour, in my submission, there are four issues potentially for discussion at least today. 

HER HONOUR:   Yes.

MR RANGIAH:   The first one is the question of remittal to the Federal Magistrates Court.  The second is the application for an extension of time.

HER HONOUR:   Well, the extension should come first, I think.

MR RANGIAH:   Yes.  Allied to that is potentially the merits of the case to the application for the extension of time, and the fourth is what direction is sought to be made to bring this matter to full resolution.

HER HONOUR:   Yes.

MR RANGIAH:   If your Honour is prepared to deal with the application for the extension of time today, I would prefer to ‑ ‑ ‑

HER HONOUR:   Well, if the parties are ready to argue it, I am, yes.

MR RANGIAH:   Yes.  I might just let Mr Bickford indicate his attitude.

MR BICKFORD:   Your Honour, could I hand up to you the defendant’s amended outline of submissions?

HER HONOUR:   Have you corrected the references to the Migration Act?

MR BICKFORD:   I have, yes, your Honour. 

HER HONOUR:   My associate pointed that out.  So there is power to extend time?

MR BICKFORD:   Yes.  This Court ruled in – I cannot pronounce the name of it – in 2007 that the original provision was invalid, but it took the Commonwealth it seems until 2009 to come up with a new provision.

HER HONOUR:   They are reluctant to admit anything about the Migration Act, I think.

MR BICKFORD:   That is right, your Honour.  So, it took a change of government and a couple of years.  Anyway, it has happened now, and so there is no doubt your Honour has got power.  In terms of the extension of time, we could probably shortcut it, because our instructions are – we only got the material later, but our instructions are that we neither consent nor oppose the extension.  So, your Honour’s got power.  We do not accent or oppose.  If your Honour is satisfied there is sufficient explanation and there is some merit in the application then ‑ ‑ ‑

HER HONOUR:   Well, I would have thought my provisional view was that the question of interests of justice hinged upon whether or not there was potentially an error to be corrected.

MR BICKFORD:   Yes.

HER HONOUR:   If that is an arguable question, I would have thought that was sufficient for an extension of time.

MR BICKFORD:   That is what we apprehended, your Honour, and we think it is arguable.  Obviously, we think the better view is that there was no error, at this stage anyway. 

HER HONOUR:   But it is an open question.

MR BICKFORD:   It is an open question, yes. 

HER HONOUR:   I am not quite sure how one can characterise the error.  That is something I want to take up with Mr Rangiah.

MR BICKFORD:   It seems to be a very short point of statutory construction of section 57, because in one of the forms that was lodged with the application, the applicant did tell us about this IELTS test, with the reference number and so forth, and all the delegate did was get on the internet site for that particular testing organisation and get the actual results.

HER HONOUR:   Does that mean the website was not up-to-date, because it did not have the second results, the results of the second test on it?

MR BICKFORD:   I am not sure why.  I have to check the timing, your Honour, because the second test was done on 9 March ‑ ‑ ‑

HER HONOUR:   Well, I did for myself a short chronology and I think your indication of when they checked the website on 9 January, so it was ‑ ‑ ‑

MR BICKFORD:   Yes, it should have ‑ ‑ ‑

HER HONOUR:   It was March 2011 that he undertook the second test.

MR BICKFORD:   That is correct but we did have – there is a reference number that he provided us for the first test result and I do not know how, I have never looked at this site, but I imagine when you look at it you punch in the reference number and it just gives you that result.  So it does not necessarily give you a later result.  So that is why we did not pick it up apparently. 

HER HONOUR:   Right.

MR BICKFORD:   And there is no dispute, I do not think, on the facts that he did do another test and he passed.  So there is no dispute about that.  So it is really a question of whether the delegate’s act of getting access to that information and relying upon it, because it was potentially adverse, was something that required the delegate to notify him under section 57 that this was potentially adverse information upon which we might rely to reach a decision and give him an opportunity to comment.  Of course, he says in his material if you had done that I would have given you the second test result, although he does not explain why he did not give us the second test result anyway.

HER HONOUR:   The migration agent overlooked it by the look ‑ ‑ ‑

MR BICKFORD:   It seems so.  Overlooked a few things really because there was a problem with him getting back to Australia.

HER HONOUR:   In the way of migration agents, yes.

MR BICKFORD:   Yes.  So, it is a very short point we think, your Honour.  We cannot find any cases on point at the moment – we see we have got to do more research, but we have not found any cases on point at the moment.  Your Honour will be aware of the cases involving offshore applicants where this Court has held that section 57 does not apply but the normal rules of procedural fairness apply.  Here, this seems to be a case where it is definitely covered by section 57, but the question is, what is the

scope of the responsibility of the delegate under section 57 in this particular scenario?

HER HONOUR:   Yes.  Thank you, Mr Bickford.  I will hear from Mr Rangiah.  Mr Rangiah, I am satisfied that an enlargement of time is appropriate in view of the explanation which has been offered and that there is an arguable case about there being an error to be corrected.

MR RANGIAH:   Yes, your Honour.

HER HONOUR:   So the interests of justice require an enlargement.  On the question of remitter, you say that the issue was arguable.  I am not quite sure how it is.

MR RANGIAH:   Really, your Honour, my argument is that when section 476 talks about a “decision that is reviewable under Part 5”, it means a decision that is capable of being reviewed under Part 5.

HER HONOUR:   But how does that meet with the question reviewable whether or not it has been reviewed?  It is the rider to that which causes you a problem, I think.

MR RANGIAH:   Except that that might be directed towards situations, for example, with a decision which is capable of being reviewed but has not been through a deliberate decision, for example, whereas in this case, the decision was not capable of being reviewed because my client was not physically present in the migration zone when the decision was made.  So, one of the features of section 476(4) is that it refers to a decision that is reviewable under Part 5, but it does not use the expression, “an MRT-reviewable decision”. 

So, it is certainly clear that the decision here was an MRT-reviewable decision, but that is not the expression that is used in section 476.  So, my submission would be that the legislature had something different in mind and the thing that it had that was different was that it had to be not only an MRT-reviewable decision but a decision which was capable of being reviewed in the circumstances.  For example, a decision would be caught where someone could seek review of it but had not done so through some default within the real requisite time.

HER HONOUR:   How did you envisage the question of remitter being determined by me as a single justice or it being referred in?

MR RANGIAH:   Your Honour, having said those things about the arguments that I seek to run, if the issue ‑ ‑ ‑

HER HONOUR:   You were not proposing to do them today?

MR RANGIAH:   Well, what I ‑ ‑ ‑

HER HONOUR:   It was not clear to me from your outline the course that you had in mind.

MR RANGIAH:   Well, what I had in mind in the outline was that if the Minister agreed that the Federal Magistrates Court had jurisdiction, then it could be remitted.  But now that the Minister has indicated a different view, it could only be remitted if the issue were determined, but then that in itself creates other issues, the question of costs is significant for my client.  If there were to be a hearing on that question of remittal, there would be an additional incurring of costs.

HER HONOUR:   Do you want to argue it before me today and have me determine that question?

MR RANGIAH:   Yes, I am happy to argue today if my learned friend consents to that course, but otherwise if it could not be argued today then my submission would simply be that we would not pursue the question of remittal to the Federal Magistrates Court and seek to have the matter finally determined – the whole of the matter determined by a single judge of the High Court.

HER HONOUR:   Well, I suppose you could have both argued at the same time really. 

MR RANGIAH:   Yes, that is another course, and one application might well be redundant as a result of that course, which I would be content with.

HER HONOUR:   I am still not entirely clear.  What is your position?  You would seek to pursue the question of remitter to the ‑ ‑ ‑

MR RANGIAH:   If it could be determined or if it could be argued today I would, or if it could be argued at the final hearing together with the substantive issue.

HER HONOUR:   Substantive issue.

MR RANGIAH:   But I would not pursue it if there had to be a separate day when we had to come back and argue that issue by itself.

HER HONOUR:   Yes, I understand that is both inefficient and costly.

MR RANGIAH:   Yes.

HER HONOUR:   Have you prepared your complete argument on the question of remitter?

MR RANGIAH:   I think it is as complete as I can get it because there are no cases that have considered the point as far as I have been able to see.

HER HONOUR:   Your argument is really that when section 476(4)(a) says:

that is reviewable under Part 5 –

means capable of being reviewed which comprehends a valid application.

MR RANGIAH:   Yes.

HER HONOUR:   Is it concerned though with valid applications?  The purpose of that provision is to identify applications that could have been reviewed, and so to take them out of the Federal Magistrates Court’s jurisdiction. 

MR RANGIAH:   Yes.

HER HONOUR:   And, of its nature, this application could have been reviewed but for the geographic positioning of the applicant, so the subsection does not really comprehend a situation such as this.

MR RANGIAH:   Well, I think that is the nub of the issue and my submission is that it could not be reviewed.  It was not capable of being reviewed because he was not in Australia at the time that the decision was made and it is a question of, in my submission, of how ‑ ‑ ‑

HER HONOUR:   It never could have been reviewed.

MR RANGIAH:   It never could have been reviewed.  If he were in Australia and then did not apply within the time limit, that is a decision that could have been reviewed.  But my construction, in my submission, fits with the purpose of the provision and ‑ ‑ ‑

HER HONOUR:   Well, the purpose of the provision being to take away from the Federal Magistrates Court that which could have been determined by the Migration Review Tribunal.

MR RANGIAH:   Yes, or to put it the opposite way, to ensure that people who have the opportunity or the right to have a matter reviewed on its merits by the Migration Review Tribunal are forced to take that path before resorting to the court.

HER HONOUR:   But, on your submission, the result of your submission would be that there are two paths available depending upon where the applicant is situated.

MR RANGIAH:   Yes, that is so.  It is fortuitous in this case that – or whatever the opposite of fortuitous is – that he was out of the country and that deprived him of any capacity to seek merits review.  In my submission, it is unlikely that the legislature intended that in that situation the only recourse should be to the High Court and that the Federal Magistrates Court ‑ ‑ ‑

HER HONOUR:   The problem is that the legislature has never turned its mind to this situation.

MR RANGIAH:   Yes, that is quite true, but looking at it in terms of what rational intention might be imputed to a legislature that did consider it ‑ ‑ ‑

HER HONOUR:   Yes.  Well, intentions are something of a fiction, but yes.

MR RANGIAH:   Yes.  In my submission, if the legislature had thought about it it would have been unlikely to say that in that situation a matter which might otherwise be determined on merits review by an administrative tribunal ought to attract the attention of the High Court instead of the Federal Magistrates Court.  In my submission, the appropriate way of looking at section 476 is not so much as a deprivation of power to the Federal Magistrates Court but more as an indication that where merits review is available it should be ‑ ‑ ‑

HER HONOUR:   It is obliging people to take that course other than ‑ ‑ ‑

MR RANGIAH:   Yes.

HER HONOUR:   And to limit it to the level of the Migration Review Tribunal review to cut off that course, so the overall intention is for people not to go to the Federal Magistrates Court.  That is what the legislation is seeking to achieve.

MR RANGIAH:   Not to go there where review is available in the Migration Review Tribunal. 

HER HONOUR:   Would there be any other circumstance apart from the odd circumstance affecting this plaintiff where something was not reviewable by the Migration Review Tribunal?  I mean, so that one could look at subsection (4) and say it was potentially comprehending positions where there might be cases that do go to the Federal Magistrates Court or is subsection (4)(a) in its reference to matters reviewable really comprehending every application?

MR RANGIAH:   Your Honour, in other circumstances that is set out in subsection (b), which is:

that would have been so reviewable if an application for such review had been made within a specified period.

HER HONOUR:   So they are saying if you are a tardy plaintiff that is no excuse either.

MR RANGIAH:   Yes, but that is obviously a decision that was capable of being reviewed but was not. 

HER HONOUR:   But subsection (4) is really focussed on the nature of the decision, is it not, not the circumstances of the plaintiff?  It is the decision that is reviewable.  It is not whether you comply with the rules, which then validates your application.  It is referring to the nature of the decision.

MR RANGIAH:   That is so, but still ‑ ‑ ‑

HER HONOUR:   And to bring yourself within the rules you would have to be within the migration zone to do it.

MR RANGIAH:   Yes, that is so.  But, your Honour, for example, in paragraph (b) talks about a decision:

that would have been so reviewable if an application for such review had been made within a specified period.

It contemplates that if an application is not made within the period, then it is not reviewable and, in my submission, that supports the argument that I am contending for.  But that specific exclusion has not been made in relation to the type of situation we are talking about here.  Could I just reiterate to your Honour that there is that difference in language in subsection (4) where it talks about “reviewable under Part 5”, rather than saying a decision that is an “MRT-reviewable decision”.

HER HONOUR:   I am sorry, I do not quite understand the distinction there.

MR RANGIAH:   In paragraph (a), for example, it talks about:

a private clause decision or purported privative clause decision:

(a)      that is reviewable under Part 5 –

The language used in Part 5 is different type of language.  For example, in section 338, the relevant provisions ‑ ‑ ‑

HER HONOUR:   Yes.

A decision is an MRT-reviewable decision –

MR RANGIAH:   Yes.  So, we accept there that the decision is an MRT-reviewable decision, but because the expression “MRT-reviewable decision” is not used in section 476(4), it indicates, in my submission, that the legislature did not intend to refer to ‑ ‑ ‑

HER HONOUR:   It is very hard to say that in the Migration Act.  Were they inserted at different times?  The drafting is all over the shop really.

MR RANGIAH:   Yes, they were inserted at different times, as I understand it.  I cannot recall the chronology but I did have a look at it at some stage.

HER HONOUR:   So how does one draw the distinction that it is intended to – in 476(4)(a) it is deliberately intending to say that is capable of review.

MR RANGIAH:   Yes.  I am not sure that I can take that submission any further.

HER HONOUR:   All right, thank you.  I will hear from Mr Bickford. 

MR BICKFORD:   Your Honour, I am not sure whether I cannot improve my submissions with more time but with that proviso ‑ ‑ ‑

HER HONOUR:   Are you happy to argue this point today?

MR BICKFORD:   Normally I would be, your Honour, but it is an important point because if your Honour were to decide that the matter can be remitted to the Federal Magistrates Court that would have a lot of ramifications, I imagine, for a lot of matters.  So, it might be something that should be more fully argued on my side of the equation anyway because of the potential importance of your Honour’s decision on the point.

HER HONOUR:   Well, what do you say to Mr Rangiah’s suggestion that it is taken as a threshold point before arguing a substantive matter.  I will hear argument and rule on it?

MR BICKFORD:   At the hearing, yes, that is probably the best way to go, your Honour, because it is important.  It is not just a minor issue because what falls from your Honour is going to have very considerable ramifications for other applicants in the same boat because quite a few people miss the time limits. 

HER HONOUR:   But they would be caught by 4(b), would they not?  This is a rather odd circumstance.

MR BICKFORD:   Yes.  Well, they would be caught by 4(b) but they can come here, of course, so there is no doubt this Court has jurisdiction to review the delegate’s decision for jurisdictional error.  The question is whether they can go to the Federal Magistrates Court or whether it can be remitted to the Federal Magistrates Court.  There is no doubt that a person who just misses the time limits is caught by 4(b), but a better case perhaps for your Honour or this Court to decide this issue would be a case where through no fault of their own a person was out of the country therefore could not satisfy that requirement, because on the facts of this case the applicant left the country of his own volition.  He did not have to.  He went back for family reasons and because his agent did not notify him of the decision, even though the agent got it on 11 January, did not notify him until 31 January.  There was a mad panic for him to get back into Australia in order to be here at the time of the application for review and the MRT.

HER HONOUR:   An alternative course, if you would prefer to give fuller submissions, is to do them in writing and I could consider the point on receipt of further written submissions and rule on it, and I could make directions for a substantive hearing but I could simply cancel that hearing if I rule in favour of the remitter.

MR BICKFORD:   Yes, that might be appropriate.

HER HONOUR:   That is the other way of doing it.  That way at least you know what is happening.  It is probably the better way of going about it, and being a migration matter it is invariably better to put it in writing usually than oral arguments.  It is so hard to carry the Migration Act in one’s head.

MR BICKFORD:   That is right, and there may be some cases somewhere on this.  I have not found any, my learned friend has not found any, but I would like to do more research because you would think it would have come up before somewhere.  The cases I found were all at a lower level.

HER HONOUR:   It is a pretty odd factual circumstance though, is it not?

MR BICKFORD:   It is a bit unusual but certainly at the lower level, and that is the only reason I troubled your Honour with those case of single judge decisions and so forth, were that – I think there was one Full Court Federal Court decision – certainly it was just assumed and accepted that if it was a primary decision it was not reviewable by the Federal Magistrates Court, but this particular issue was not really argued.  So, it is important because there could be a lot of people who are affected by your Honour’s decision. 

HER HONOUR:   All right.  Why do I not make directions in terms of further written submissions and then I will determine the matter, I will pronounce orders.

MR BICKFORD:   Yes, thank you, your Honour.  We did do a draft, it may not be much use now but I will hand up two copies to your Honour.  I have given a copy to my learned friend.  Part of it might be of some use because it deals with extension of time, order 1, which your Honour has already ruled on.  It is a bit wordy but we wanted to make it very clear what the extension was.  Then the other directions were as per my submissions which my learned friend agreed with but we have got to add into that.  We might have to push the timetable out because we would have to add into that the further written submissions.

HER HONOUR:   What I have in mind is that you simply file further written submissions and then Mr Rangiah respond to them.

MR BICKFORD:   Yes.  If I could have seven days, until next Friday, that should be enough time.

HER HONOUR:   And how long would you require, Mr Rangiah?

MR RANGIAH:   Seven days also, your Honour.

HER HONOUR:  

1. I will make an order in terms of paragraph 1 of the draft which I will mark.

1. I will insert two further orders that the defendant file and serve further written submissions on the question of remitter within seven days from today.

1. That the plaintiff file and serve his reply to those submissions within seven days from receipt of the defendant’s submissions.

In terms of the directions proposed in the draft outline – but do you need to push the dates out?  Yes, I suppose you will.

MR BICKFORD:   Yes, if the first date is 28th, which is next Friday.

HER HONOUR:   Yes.  Then that would give me some time to consider the point and do a very short – what I propose to do is I will produce some reasons which I will circulate to the parties and I will either pronounce orders in Court without people being required to be present or I will leave the pronouncement of orders, depending on which way it goes, until the hearing of the substantive application.

MR BICKFORD:   Yes, thank you, your Honour.

HER HONOUR:   So, shall we start the clock ticking for directions then from, say, Friday 26 October?

MR BICKFORD:   Yes, thank you, your Honour. 

HER HONOUR:   And then just readjust the dates on the same timeframe that your draft comprehends running from that time.

MR BICKFORD:   Yes, your Honour.

HER HONOUR:   We do not need the matter to be listed for further directions under (j).  We will just say that the matter is listed for hearing.  That is going to take us into February of next year, is it not?

MR BICKFORD:   Yes, your Honour.

HER HONOUR:   I do not have my February calendar here.  While my associate is getting the calendar for next year, Mr Rangiah, could I just ask you in relation to the substantive application, the way in which you have framed it, it is put as a breach of section 57.

MR RANGIAH:   Yes.

HER HONOUR:   Is there any other way in which it can be – a question of error posed?

MR RANGIAH:   Yes, your Honour.

HER HONOUR:   Failing to take into account the relevant consideration or something like that?

MR RANGIAH:   Your Honour, perhaps what I had in mind was that it could be characterised as a denial of natural justice because section 51A of the Migration Act says that:

This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice –

HER HONOUR:   All right.  I will wait to see your written submissions.  Are you happy with this timeframe – once it is pushed out – will be into probably late February for a hearing, is that too late for you?

MR RANGIAH:   No, I do not think time is ‑ ‑ ‑

HER HONOUR:   It is not of the essence in that sense.

MR RANGIAH:   No.

HER HONOUR:   What I will do is ask the parties to put together the draft order in the terms that I have discussed this morning and shall we say the matter listed for hearing on Thursday, 21 February, is that suitable, at 10.15 am? 

MR RANGIAH:   Yes, thank you, your Honour.

MR BICKFORD:   Thank you, your Honour.  And that will be in Brisbane, your Honour?

HER HONOUR:   In Brisbane.

MR BICKFORD:   Yes.  And the first date in what will be now paragraph 4(a) is 26 October and I just work on from that.

HER HONOUR:   Yes.

MR BICKFORD:   I will do that straightaway as soon as I get back to chambers and circulate that to my learned friend, your Honour.

HER HONOUR:   All right.  Well, I will be able to sign off on it today if you can have it around by this afternoon.

MR BICKFORD:   Yes, we will get it to your associate.  Thank you, your Honour.

HER HONOUR:   Good.  After I receive the submissions on the question of remitter, I will then produce the reasons which will found the order and then we will see whether or not the hearing is either confirmed or vacated as a result of that.

MR BICKFORD:   Yes thank you, your Honour.

MR RANGIAH:   Thank you, your Honour.

HER HONOUR:   We will adjourn.

AT 10.51 AM THE MATTER WAS CONCLUDED