Hu & Anor v MIMIA

[2005] HCATrans 149

[2005] HCATrans 149

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S173 of 2004

B e t w e e n -

ZHAO LIN HU

First Applicant

JIAXIN HU

Second Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MARCH 2005, AT 1.57 PM

Copyright in the High Court of Australia

__________________

MR S.B. LLOYD:   If it please the Court, I appear in this matter for the applicants.  (instructed by Parish Patience Immigration)

MR G.T. JOHNSON:   May it please your Honours, I appear for the respondent.  (instructed by Blake Dawson Waldron)

GUMMOW J:   Now, you have an extension of time application.  That is opposed?

MR JOHNSON:   Yes, your Honour.

MR LLOYD:   I have an extension of time application, yes, your Honour.

GUMMOW J:   I beg your pardon?

MR LLOYD:   Did your Honour say do I have ‑ ‑ ‑

GUMMOW J:   No, Mr Johnson has an extension of time application.

MR JOHNSON:   No, your Honour, I think Mr Lloyd was seeking an extension of time for commencing the special leave application.

GUMMOW J:   Yes, I am sorry.  Yes, that is right.  Is that opposed?

MR JOHNSON:   It is, your Honour, yes.

GUMMOW J:   All right.  Well, we will hear the application first, I think.  I am so used to seeing you in another guise, Mr Lloyd.

MR LLOYD: Your Honour, the ambit of this application is fairly short. The question for the Court is whether or not the Full Court erred in deciding that it was not open to infer that the delegate considered that the fact that the first appellant was outside Australia was sufficient of itself to satisfy section 128(a)(ii) of the Migration Act.  The construction of that section is not in dispute, and the relevant construction is conveniently summarised in his Honour Justice Sackville’s judgment on page 55 of the book in paragraph 78, and I draw the Court’s attention in particular to the last three sentences:

the mere fact that the condition in s 128(b) . . . the visa holder is outside Australia) does not establish that it is appropriate to cancel the visa in accordance with the procedure in Subdiv F.

Perhaps if I stop there ‑ ‑ ‑

GUMMOW J:   What about the point I think made by Justice Beaumont at first instance, page 27 paragraph 39, as to lack of candour, et cetera, which I think is picked up by the majority of the Full Court.

MR LLOYD:   What is picked up in the sense that the Full Court said that my client was denied natural justice in that finding.  My client can answer that, and there is already before the Court some evidence in relation to the answer, which is at page 68.  The applicant did in fact buy a factory for the purposes of starting a battery business.  It is not like he was deceiving anyone.  That is the first answer, and that seems to be what concerned his Honour Justice Beaumont most of all, that he had said he was going to buy a factory and did not do it and then bought a different business and then did not tell the department.

The second thing of course is that there is in fact no obligation upon my client to tell the department if he buys a different business.  In order to get a visa you have to have met certain criteria.  He met it at that time.  Circumstances changed whereby it no longer was profitable to start a battery business, even though he had bought the factory, so he then bought a different business.  In those circumstances there is no lack of candour.  He may or may not be eligible on the basis of the second one but he was under no duty to tell the department of the change of business, and that in any event was not any reason for the cancellation put against him.

So the short answer is that my client never lacked candour, that the delegate accepted my client’s evidence to the extent that there was only issue of fact.  He had just not come to Australia for long enough to sort of justify the view that he was going to come for a longer period or a more substantive period in the view of the delegate.

CALLINAN J:   Mr Lloyd, could I ask you something about page 5. It is a letter to your client, is that right, or a letter ‑ ‑ ‑

MR LLOYD:   Yes, that is so, from the Australian Mission in Guangzhou.

CALLINAN J:   “You were notified that your visa was cancelled”.  Your agent responded by fax on 14 February.  Where do I find the response?  Is it in the ‑ ‑ ‑

MR LLOYD:   It is not in the book.  There was formally a challenge.  I am not entirely sure why this document is in the book, but in any event there was previously a challenge to a decision not to revoke the cancellation and that challenge is not pressed in this Court.  So now the question is as to the validity of the cancellation decision alone.

CALLINAN J:   Is what you telling me that there is a decision conveyed, is there not, by this letter at 5, is that right?

MR LLOYD:   That is so, your Honour.

CALLINAN J:   That is a cancellation decision, is that ‑ ‑ ‑

MR LLOYD:   That is a decision not to revoke the cancellation decision.

CALLINAN J:   Right, not to revoke the ‑ ‑ ‑

MR LLOYD:   So the cancellation had already happened – this is on pages 1 to 4.

CALLINAN J:   Right.  Well, what about the response to the decision to cancel it?  Where do I find, if anything, the facts of 14 February 2003?

MR LLOYD:   It is referred to in his Honour Justice Beaumont’s reasons; I think his Honour may have set it out.  On page 22 in paragraph 30 there is the thrust of what was put there – in fact, almost all of the letter is set out over the next two pages.  It is convenient perhaps if I take the Court to the legislation.

GUMMOW J:   Well, I think we have studied that.  What do you say as to the majority reasoning – well, starting off I suppose on page 34, paragraph 5?  The issue we have to grapple with here if we took the case would be what inference should be drawn from the notice.

MR LLOYD:   At the end of the day that is the issue, but that is not the ‑ ‑ ‑

GUMMOW J:   And then picking it up again at page 36, paragraph 13.

MR LLOYD:   That is so.  That will be an issue the Court will have to deal with, although the principal error of law is the one identified, or that I seek to identify, in paragraph 19 of the majority decision, where the majority says that the inference is not even open.  If the inference were open, then their Honours would have said that they could have enabled an inference to be drawn of a Jones v Dunkel variety to support the view.  What we say the error is is their Honours saying that it is not even open that the delegate had regard to, or misconstrued, the relevant provision, and I take the Court to page ‑ ‑ ‑

CALLINAN J:   Mr Lloyd, the visa can be cancelled, can it not, in any circumstances which permitted its grant?  Is that right?  Is that section 116?

MR LLOYD:   Section 116(1)(a) allows a visa to be cancelled if the circumstances upon which it was granted no longer exist ‑ ‑ ‑

CALLINAN J:   It says, “any circumstances which permitted the grant of the visa no longer exist”.  It just seems to me to be a very, very wide expression, “any circumstances which permitted the grant”.  What do you say were the circumstances which permitted the grant here?

MR LLOYD:   Well, your Honour, it was not part of our case ‑ ‑ ‑

CALLINAN J:   No, do not worry about whether it is part of your case or not.  What do you say were the circumstances which permitted the grant of the visa here?

MR LLOYD:   That the applicant met the requirements of – I will just see if I can find the criterion - no, 457.

CALLINAN J:   Where do I find that in here?

MR LLOYD:   I will see if I can find it, your Honour.  It might be in Justice Sackville’s judgment.  The relevant bits of it are at page 41, paragraph 25 of Justice Sackville’s judgment.  It might be more comprehensively set out by Justice Beaumont.

CALLINAN J:   Well, you have (7)(b)(ii):

to maintain a direct and continuous involvement in the management of the business –

That may have to be read in the light of what were the circumstances to which the applicant pointed when he got the visa – when he said what he was going to do.

MR LLOYD:   That is so, your Honour, but there is a discretion as to whether or not to cancel.  So it could, for example, be that you have somebody who applies in order – on the basis of a battery factory and meets that criteria, as a result of which he is entitled to the visa and is granted the visa, then some time later changes his investment plan and then buys a different business.  If that business is considered to be adequate, then it would certainly be open to the delegate to exercise a discretion in my clients’ favour.

CALLINAN J:   It says, “to maintain a direct and continuous involvement in the management of the business.”  There is no reason why that should not be read as “personally do so by being here to manage it”.

MR LLOYD:   I accept that, your Honour.  It is not my clients’ case that the power to cancel did not exist, only that it is discretionary.

CALLINAN J:   I understand that.

MR LLOYD:   And particularly my clients’ case is that the delegate did not address one of the jurisdictional facts, which was satisfaction that it was ‑ ‑ ‑

GUMMOW J:   Your complaint is that one is said to infer from the words “Applicant is offshore” the conclusion that that was treated as a sufficient condition to cancel.

MR LLOYD:   Indeed.  What I say is that it is at least an open inference, on page 3, that that is the case.  His Honour Justice Sackville says it is the natural inference and, in my submission, his Honour was entirely correct in saying it is the natural inference, but all I need is for it to be an open inference.  That would mean the majority were wrong in not giving my client the benefit of a Jones v Dunkel inference from the fact that the delegate did not give any explanation. So long as the inference is open – and I accept that means reasonably open – but, in my submission, it is reasonably open that the words “Applicant is offshore”, in response to a direction, reason why it is considered appropriate to cancel without notice under section 128. In my submission, that direction is specifically referable to section 128(a)(ii), one of the jurisdictional facts.

It is also my submission that the applicant being offshore is not either sufficient or indeed – going further than the court below went - even relevant to that question; it is itself a separate precondition. You cannot exercise the power under section 128 at all unless the person is offshore. What 128(a)(ii) requires is consideration of why it is appropriate to cancel someone’s visa without notice. The majority say – and it is entirely accepted – that there can be good reasons. There could be a reason that somebody would be a threat to national security if they were given an opportunity – they would come back to Australia and be a threat. Another reason is that the person might come back to Australia and tamper with evidence which would affect the issue. Of course, none of those things were mentioned. They are not relied upon by the delegate. They were in

the policy which the delegate should have considered, which was before Justice Beaumont, but no reference to that is made.

In all of those circumstances, in my submission, the most natural inference is that the delegate just misunderstood the statutory power and as a consequence that is, in my submission, clearly arguable and indeed is the overwhelmingly correct inference, as Justice Sackville said, at least open, and if it was open then a Jones v Dunkel inference should have been drawn by the fact that the delegate did not come forward and give any other explanation as to why it was done in that way.

GUMMOW J:   Yes, I think we will hear from Mr Johnson now, Mr Lloyd.

MR JOHNSON:   Your Honours, firstly, the issue upon which the Full Court’s decision turned is, as your Honour Justice Gummow stated, stated there in paragraph 5 and to the extent that my friend emphasises paragraph 19, I would make two points immediately by way of emphasis.

The first is that, although the majority used the word “open” in the last line on page 38, and my friend has submitted that they did not regard the particular inference that he was inviting them to draw as open, the majority also say in paragraph 13 on page 36 that they:

do not think it is safe to draw the inference that the delegate did not turn his mind to the question he was required to consider solely upon the basis of the way the particular form was completed.

So that even if my friend was correct and the majority were wrong in saying that the inference that he was inviting them to draw was not open, he would still run into some difficulty because on any total reading of the judgment, including paragraph 13 and paragraph 19, it is plain that the majority were not prepared to draw this inference such as to satisfy the onus of proof that lay on my learned friend.

CALLINAN J:   It is a very difficult onus to satisfy.

MR JOHNSON:   Indeed it is, your Honour.

CALLINAN J:   Putting it the way you do.

MR JOHNSON: I hope I am not interrupting your Honour Justice Callinan, but could I say this. This particular legislation, sections 128 and 129, do not impose upon the decision‑maker any obligation to say why it is that he or she does consider it appropriate to use these provisions rather than the alternate mechanism. There was quite an extensive argument before the Full Court about the construction of section 128, but at the end of the day this is the only point that my friend seeks to agitate. As the matter comes before your Honours, there is no dispute that when one goes to section 129 of the Act – if I could take your Honours to that just briefly – the notification requirement which is there set out does not include any obligation to tell the visa holder why the decision‑maker considers it appropriate to cancel in accordance with this subdivision. The ground that is referred to is the ground in section 116. The particulars that are referred to are the particulars of that ground ‑ ‑ ‑

GUMMOW J:   This is on page 20 of the book.

MR JOHNSON:   I beg your pardon, your Honour?

GUMMOW J:   We are looking at page 20 of the book for section 129?

MR JOHNSON:   Yes, your Honour.

GUMMOW J:   Giving notice, giving particulars.

MR JOHNSON: And then the invitation, your Honour, is the third element. Then, as the majority there also note, although it does not arise, in my submission, section 129(3) provides:

Failure to give notification of a decision does not affect the validity of the decision.

The important point, your Honours, is that there was no statutory obligation on the decision‑maker to say why he or she thought that section 128(a)(ii) was fulfilled. Also, your Honours, the particular form that was used is not one which is at all prescribed by the legislation. The regulation simply requires ‑ ‑ ‑

GUMMOW J:   I was wondering about that.  It does not have any root in any regulation, does it?

MR JOHNSON:   No.  Regulation 2.47, your Honour, requires the notification to be given in writing.

GUMMOW J:   Yes.

MR JOHNSON: But we go no further. So really what my friend – and at the end of the day the applicant’s case on this entire point did depend entirely upon whether or not that particular form, or the filling out of the form, could or did discharge the applicant’s onus of showing that the decision‑maker overlooked or did not observe the requirement in section 128(a)(ii) to consider whether it was appropriate to cancel ‑ ‑ ‑

GUMMOW J:   What do you say about 129(1)(b), “giving particulars of that ground” on which it was cancelled”.

MR JOHNSON:   Yes, that is the ground to which paragraph (a) refers, which in this case, your Honour, is the ground in section 116 that Justice Callinan was asking about before.

GUMMOW J:   Yes.

MR JOHNSON:   And here it was conceded that grounds for cancellation did exist.

CALLINAN J:   And 63 days in the last two years in Australia.

MR JOHNSON:   Well, that is right.  Then he went ahead and purchased another business.  So there were various bases upon which the concession could properly have been made.  But the point is that at both levels it was conceded that grounds did exist for the purposes of section 116(1)(a).  Then, your Honours, when one returns to the majority reasoning one finds not only do they make the point that I have been making about the absence of any statutory requirement to tell the visa holder the reasons underlying the consideration ‑ ‑ ‑

GUMMOW J:   On one construction of it, that phrase on the form on page 3, “Reason why it is considered appropriate”, is referring to 128(a) but that ‑ ‑ ‑

MR JOHNSON:   Yes, that is a real possibility, and that is one of the things that the Full Court said, your Honours, that although the form itself is headed up on the previous page to the effect that it is to be used – not the previous page, your Honour.  I should say page ‑ ‑ ‑

GUMMOW J:   Page 1.

MR JOHNSON: Page 1, yes. It is headed up “For use where the visa holder is outside Australia”. The Full Court found that there were a number of deficiencies with the form in the sense that it did not follow the structure of section 129 and that the fact that the visa holder was outside Australia was not itself an irrelevant consideration for the purposes of section 128(a)(ii). Their Honours gave some examples of circumstances where it might be relevant. There are others of course. There might be fears about whether or not the person would overstay or whatever, but at the end of the day the majority simply were not prepared to conclude from the decision‑maker’s form filling out that a jurisdictional error had been made.

GUMMOW J:   I do not suppose you can tell us whether this form is still in use?

MR JOHNSON:   I should be able to tell your Honours that.  I have not made specific inquiry.  It was at the time that we were before the Federal Court.  I will just see, your Honour.  I do not have instructions, your Honour.  But certainly the Full Court was critical of the form, and that has been drawn to the department’s notice.

Your Honours, the reasons why the Full Court declined to draw the inference which has been sought are of course fairly fully set out in the majority judgment at pages 34, 35, most of 36, 37 and 38.  The critical things were the statutory feature that I have referred to, then going to the top of page 38, the fact that the form is structured in such a way that, in their Honours’ view:

it is hardly surprising that a decision maker would wish to record somewhere the presence outside Australia of the visa holder.

The fact that the visa holder is offshore is a relevant consideration, or at least not an irrelevant consideration, in relation to the exercise of that discretion as well as to the availability of the power itself.  The difficulty of filling out the form, which is referred to earlier at pages 36 to 37, the significance of that simply being that the applicant’s case was entirely reliant upon the form not being filled out as the applicant contended it might have been.

At the end of the day, your Honours, what this application is about is ultimately a factual finding by the majority of the Full Court. They simply were not prepared to accept that the applicant had discharged his proof to show that the way in which that form was filled out disclosed the jurisdictional error of not considering paragraph (ii) of section 128. It is a factual matter. There is no point of general principle involved. The reasons why the Full Court did find the inference that they were being invited to draw unsafe was set out in some detail, and they are rational reasons. At the end of the day the decision turned upon onus of proof not only to find distinction between whether an inference is open and whether it is safe and, with respect, it is simply not the sort of case where special leave would be appropriate in any event. Here the Full Court, in my respectful submission, was plainly correct, and if they were not there is insufficient doubt about the correctness to justify the grant of special leave.

In relation to the matter of the applicant being out of time, your Honours, there is not a great deal I wish to say about that.  The applicant was not a great deal out of time but, nonetheless, the applicant is ‑ ‑ ‑

GUMMOW J:   And you said, “snap”.

MR JOHNSON:   Sorry, your Honour?

GUMMOW J:   The Minister said, “snap”.

MR JOHNSON:   But, your Honour, the prospects of the application are not great and there is no point of general principle involved.  Also, when one looks at Mr Bitel’s affidavit one really does not find, in my respectful submission, any satisfactory explanation for the delay which occurred, but the substance of it appears at page 67 of the affidavit, where he speaks of the client initially being reluctant to come to this Court, and then it would appear that the client changed his mind as a result of an associate travelling to China on 8 April.

Now, 8 April was still within the appeal period.  There is no explanation given really as to why this discussion could not have occurred between the applicant’s solicitors and the applicant, with or without his associate here in Australia, by telephone or by some other means, or why in any event the instructions could not have been sent back from China within the appeal period.  The period, we say, is one which generally ought to be observed and it is simply not shown in this case that it is in the interests of justice to grant the favour which is sought.  If your Honours please, those are the respondent’s submissions.

GUMMOW J:   Thank you.  Yes, Mr Lloyd.

MR LLOYD: Your Honours, in relation to the question of form and section 128, I note that section 128(a) has two provisions. One is:

the Minister is satisfied that:

(i)       there is a ground for cancelling a visa under section 116; and

(ii)      it is appropriate to cancel in accordance with this Subdivision –

Subdivision F, which is where section 128 is located, is a subdivision which allows a person’s visa to be cancelled without notice. It is an exceptional provision, as compared with Subdivision E, which is the general provision which applies to people both within and outside of Australia where cancellation must be done in accordance by giving notice up front.

In my submission, when one appreciates that and one has a look at the form on page 3, it says, “Reason why it is considered appropriate to cancel without notice under s 128”. That is directly referable, and only coherently referable, to the appropriateness referred to in 128(a)(ii), which is “appropriate to cancel in accordance with this Subdivision”. That means appropriate to cancel without notice. The reason given is, in my submission, not a reason which is a reason which is consistent with a proper construction of section 128, and the Full Court accepted that that is not a reason for the appropriateness. The majority judges said, “Well, notwithstanding that that is what is written there, their Honours won’t draw an inference that that was the reason for reasons that they gave”. They placed great weight on the argument which Mr Johnson no doubt put below and which their Honours accepted, that section 129 does not impose an obligation to set these matters out.

We accept that section 129 does not impose such an obligation. However, in our submission, that is not destructive of our submission. Obviously there are cases, as this Court indicated in Yusuf, where there can be an obligation to provide reasons and where, in an obligation to provide reasons, some material fact is not set out or not dealt with, an inference can arise that the decision‑maker did not have regard to that material fact.  This is not that kind of case.

This is a case where there is direct evidence as to what the delegate had regard to. The delegate has responded to a form. Again it is accepted that the form is not one prescribed, but we say nothing turns on it. There could not even be a form. If the delegate were to just have written this in handwriting, the inference would be available that if the delegate wrote “Reason why it is considered appropriate to cancel without notice under s128: Applicant is offshore”. In my submission, that is certainly an inference which is open. My friend says the court below said that the majority said it was not safe to draw the inference but that was of course informed on their view that they did not have regard to a Jones v Dunkel inference which, in our submission, they should have.  That is where the error lies. 

In relation to why special leave should be granted, our submission is first of all it is in the interests of the administration of justice.  This is an exceptional case where my client was denied natural justice in the Federal Court at first instance.  No findings at all are dealt with on this point, and so the first time any findings of fact came up on appeal, so there has been no opportunity to review the findings which, in our submission, are flawed.  Also, my friend said there is no point of general importance.  Well, as with

all questions of fact, it becomes at what level one looks at but, in my submission, this case is a case which stands for a proposition that when somebody answers a direct reference on a form that the inference is not open that the answer reveals the thinking of the decision‑maker.  Cases will come up where the Minister will no doubt be antagonistic about such a result because she will want to rely upon an inference drawn on a form.  In my submission, there is a question of general importance as to when inferences arise; the extent to which the normal, beneficial reading approach in Wu Shan Liang affects a Jones v Dunkel inference, should one have a beneficial – I see my time is up.

GUMMOW J:   Yes, but finish what you are saying.  You were in full flight. 

MR LLOYD:   I was just going to say that there is a question to the extent to which a beneficial reading should occur prior to the question of a Jones v Dunkel inference arising or whether it is something which is done down the track.  Then, if I just say in relation to the question of extension of time, my client was overseas, he does not speak the language, he has cultural difficulties which made him unsure about whether or not he should do it.  Obviously it would have been better if we had the instructions a week or so earlier but there is no prejudice to the other side and if the Court accepts ‑ ‑ ‑

GUMMOW J:   We do not need to hear you on the extension of time.

MR LLOYD:   May it please the Court.

GUMMOW J:   This case turns upon the construction of the provision for the cancellation of visas without notice made in section 128 of the Migration Act 1958 (Cth) and of the notification of cancellation form which was used here, and upon the inferences to be drawn from the particular circumstances of this case.

We are not satisfied that there are sufficient prospects of demonstrating error in the majority of the Full Court’s conclusion respecting those inferences to warrant a grant of special leave.

We would grant the extension of time but refuse special leave with costs and we so order.

AT 2.33 PM THE MATTER WAS CONCLUDED