HZCP v Minister for Immigration and Border Protection & Anor

[2021] HCATrans 168

[2021] HCATrans 168

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M15 of 2021

B e t w e e n -

HZCP

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND MELBOURNE

ON FRIDAY, 15 OCTOBER 2021, AT 1.27 PM

Copyright in the High Court of Australia

KEANE J:   In accordance with the Court’s protocol in sitting remotely, I will announce the appearances for the parties.

MS K.E. FOLEY appears with MS S.M. KELLY and MR B. BROMBERG for the applicant.  (instructed by Clothier Anderson Immigration Lawyers)

MR P.D. HERZFELD, SC appears with MS J.E. DAVIDSON for the first respondent.  (instructed by Australian Government Solicitor)

KEANE J:   There is a submitting appearance for the second respondent.  Yes, Ms Foley.

MS FOLEY:   Thank you, your Honours.  The Full Federal Court by majority reached an erroneous conclusion on a statutory construction question, a conclusion that we say is worthy of this Court’s attention.  For the purposes of special leave, the question of statutory construction that is raised has significant consequences for persons in the position of the applicant, but we say also has significance beyond the Migration Act in relation to other statutes where powers akin to this one ‑ ‑ ‑

KEANE J:   Ms Foley, just before you go on, I notice that quite a substantial extension of time is required.  Do you have anything to say about that or do you simply say that the merit of the case should lead to an extension?

MS FOLEY:   No, your Honour, I will be proposing to address on the extension of time.  I was proposing to do that at the end of my submissions on the grounds for the special leave application, but I can do it now if the Court would prefer.

KEANE J:   No, no, you deal with it in the order you prefer.

MS FOLEY:   We certainly do not say that the Court should overlook that significant amount of time, but I will address that.

The issue that arises has its origins here, in the hearing before the Administrative Appeals Tribunal.  The Tribunal was undertaking a review of a decision of the Minister’s delegate declining to revoke the mandatory cancellation of the applicant’s protection visa, consequential upon his conviction and imprisonment.

During that hearing, the applicant gave oral evidence about the incident that led to him being convicted of the criminal offences and then imprisoned.  The applicant denied that what the trial judge had described was what had happened and gave his own account of what had occurred.  At 43 of the AAT’s reasons – and this is at application book page 21, the Tribunal said that it could not:

contradict or go behind a conviction and examine the facts upon which it is based –

and, in so doing, it relied upon a line of authority commencing with the decision of the Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135.

The applicant appealed from there to the Federal Court and then to the Full Federal Court where, by majority, the court rejected the applicant’s argument that, in making that finding, the Tribunal had acted on a wrong principle in narrowing the scope of its review.  The majority of the Full Federal Court held that the Tribunal cannot impugn or question the essential factual findings that underpin the conviction, or where relevant the sentence on which the power depends.  So, we say at the heart of this application is whether the Minister’s delegate, and then the Tribunal in review, is limited or fettered in that way in undertaking their statutory task. 

The applicant does not quarrel with the fact that the decision‑maker cannot ignore the fact of the conviction or sentence.  What is in issue is this broader limitation, one that we say prevents the Tribunal from examining facts even if those facts are relevant to its statutory task.

I propose to start then with the statutory construction question which we say is at the heart of all of this.  I will then address the line of authority, commencing with Daniele, and then I will address the application for an extension of time.

Turning to the statutory construction question, by section 500(1)(ba) of the Migration Act, applications may be made to the Tribunal for a review of decisions of a delegate, such as was the decision here, under section 501CA(4).  In the Tribunal, it is well established that the Tribunal stands in issues of the decision‑maker.  The Tribunal is not ordinarily limited to the material before the decision‑maker and the question before the Tribunal is whether, on the basis of the material before it, the decision was the correct or preferable decision.

There is no dispute that the AAT Act contains no limitation of the kind described by the majority of the Full Federal Court.  So, the limitation which was applied here needs to be founded in the Migration Act.  That was accepted by the Full Court.

EDELMAN J:   Ms Foley, do you accept then that under section 501(3A)(a) that there is no discretion for the Tribunal or the Minister to go behind a conviction?

MS FOLEY:   Yes, but the real question, looking at the authorities, is what does it mean to go behind the conviction?  We say that, accepting the fact of the conviction or the sentence and understanding the significance that that might have for the person’s standing in the community is one thing.  The question is whether the further step of questioning the underlying facts that lead to the conviction or sentence might be considered to go behind it and that is where a lot of the case law seems to have some differences in how that concept is understood.

EDELMAN J:   But the applicant would have had the opportunity to contest any of the underlying facts of either a conviction or facts that are relied upon for the purposes of a plea of guilty at any sentencing hearing.

MS FOLEY:   Indeed, but the point that we wish to make is that when the delegate of the Minister or the Tribunal is assessing these facts and circumstances it is for a different purpose and it is that different purpose which we say is relevant.  The court or the sentencing judge is looking at facts for its purpose and certain evidence might be admissible or not within that criminal context, but we say, before the Tribunal and before the delegate, when their task is a different one, where they are looking for another reason, apart from the conviction or sentence, why the person might be permitted to stay in Australia, we say you need to find a basis in the statute for that additional limitation.

GORDON J:   Ms Foley, is that not what the court said in Daniele?

MS FOLEY:   It is what the court said in Daniele, and we agree with that and we embrace that construction of the provision that was at issue in that case.  So we say that the approach that the court took in Daniele is the approach that should be undertaken in relation to this provision, and that what has happened over time is that the Daniele holding has really been understood in a much broader way, significantly influenced by the decision of Justice Fox in the Gungor decision, and that has effectively led to a broader fetter on the power of the delegate here and the Tribunal than was ever articulated in the decision of Daniele.

GORDON J:   Just so I am clear about what your proposition is, is it that you seek to contend that all facts are available, or do you seek to accept the narrowing of that idea in Daniele?

MS FOLEY:   We accept the position as it was put in Daniele, and we say that the critical issue is for what purpose are you looking at the facts?  If you are looking at the facts in order to impugn the conviction or sentence, or set it to nought, to use the language of the court there, then no, it is not permissible.  But if you are looking at these facts and examining these facts to assess the seriousness or the gravity of the conduct, for the purpose of the exercise of the statutory power, we say that is a different task and it is permissible for that purpose.

GORDON J:   I will ask one more question, and then I will be quiet.  It seems to me that you are taking one sentence in Daniele out of context.  The paragraph is, as I understand, two propositions.  First of all, it is the circumstances surrounding the commission of the offence may be examined for a particular purpose, but what they go on to say is you cannot…..examine all facts.

MS FOLEY:   Can I tell the Court, and perhaps I can go to it now, the passages from Daniele that we rely upon? If the Court has the decision there, and we are using the ALD version, and I hope that is the version your Honours are using, starting at page 138 - this is the reasons of Justices Fisher and Lockhart, starting in the penultimate paragraph:

The conviction is the genesis of the Minister’s power to deport.  There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought.  That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal.  However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial.

There is a passage at the bottom of the page which crystallises the issue that was at play in this case, and that is where there was a submission to the court, that further than that, the Tribunal could also not examine the conviction and facts necessarily found by the jury in reaching its verdict.  Significantly, Justices Fisher and Lockhart reject that approach and say we:

cannot accept that the Tribunal is not entitled to examine for itself all facts including those necessarily found by the jury.

I will just refer the Court to one further passage and that is at page 141 of the reasons of Justice Davies, where a similar point is made about the different task that the Tribunal is facing, and the fact that because of the different nature of that task, and the wider inquiry that the Tribunal is engaged in, then that narrower proposition about what the Tribunal could look at could not be accepted.

EDELMAN J:   Ms Foley, just before you move on, what do you understand to be meant by the suggestion that the Tribunal can examine facts that are necessarily found by the jury.  Do you understand that to mean that the Tribunal can reconsider the necessary facts found by the jury – necessary for the conviction – and reach a different conclusion, and, if not, what is the purpose of examining those facts?

MS FOLEY:   We say that they can hear about those facts, and they can examine them, as long as it is for the purpose that is consistent with the Tribunal’s statutory function, which, in this case, would be to assess whether there is another reason why the applicant could remain in Australia, notwithstanding the conviction sentence.  Now, it will very much depend on the circumstances of the case. 

One of the cases that is considered in this particular case, Daniele, a High Court decision…..included a case where there was a criminal trial but separately a coronial inquest, and some evidence had been heard at the coronial inquest which was material, and the High Court, a number of Justices pointed to the fact that there was material evidence that, in the criminal process, was not able to be considered, but could be considered outside of the criminal context and was relevant. 

Now, that is the kind of thing we say might occur in a Tribunal hearing of this kind, where there may be evidence that in the criminal context, because of admissibility issues, or unavailability of witnesses in that context, may not have been heard at all by the Court, but it may be considered relevant by the Tribunal for its own statutory purpose, which is a different purpose to the one that the criminal court or the sentencing judge was looking at those same facts. 

EDELMAN J:   But that is not this case, though, is it?  There is no suggestion that there are facts that are extrinsic to the criminal context that the applicant sought to rely upon.

MS FOLEY:   No, that is not this case.  I had understood your Honour to be asking a broader question about the bounds of this principle and we embrace the statements that have been made in Daniele about this being a situation where of course the Tribunal needs to assess it on a case‑by‑case basis, but the real issue is, do we impose a blanket fetter or a blanket limitation which means that in every case the Tribunal has to put up its hand and say, “I will not hear evidence about this; I cannot examine these matters because to do so would go behind the conviction or the sentence?”

We say that embarking upon that task for the different purpose of engaging with what the statute is asking the Tribunal to engage in, “Is there another reason?”, is not properly considered going behind the conviction or going behind the sentence because of the different purpose for which those facts are being considered.

Can I return then, your Honours, to the statutory construction question and the first point we wish to make is that the textual foundation that the majority of the Full Court is fixed upon, which is the connection between 501(3A) and 501CA(4), certainly serves to reach the conclusion that one cannot ignore the fact of the conviction or the sentence, but we say that statutory textual connection between the two provisions does not support the broader limitation which the Full Federal Court has identified and relied upon.

So, once we move from the text, because there is no express textual limitation and we say the connection between those two provisions does not support the broader limitation, we then get into the questions of purpose and context.

Looking then to the statutory purpose, we say that the broader limitation articulated by the majority of the Full Federal Court actually serves to undermine the statutory purpose of 501CA(4).  Looking at the second limb of subparagraph (b), which is what we are concerned with here, it enables revocation of the cancellation decision if the Minister is satisfied that there is this other reason, another reason why the original decision should be revoked.

We say it is drafted to invite a broad inquiry by the decision‑maker.  It does not set out any considerations that must be taken into account in making that decision or impose any express limits.  It also does not ‑ ‑ ‑-

EDELMAN J:   There is one consideration that is implicit and that is that it is another consideration other than the character test.

MS FOLEY:   Indeed.

EDELMAN J:   So, one matter that was at least implicit in the majority’s approach in the Full Court is that it would contradict the first limb if the second limb was an implicit character test, but without the requirements of section 501.

MS FOLEY:   I understand, and Justice Colvin’s reasons make that point.  We say that it would, if we were contending that you could ignore the fact of the conviction or sentence, that would undermine the first limb, but if what you are doing is enabling a broader inquiry, not setting the conviction or sentence to nought, you are not saying that it should be ignored, you are not saying it does not affect the person’s standing in the community, but you are assessing the underlying facts and circumstances for this different purpose, is there another reason notwithstanding this conviction and sentence, is there another reason why the person should be permitted to stay, and we say that that does not undermine the first limb, and that it is very important to draw a distinction between the fact of and then this further limitation that has been imposed on or read into the statutory language. 

Now, we say in looking at purpose one needs to also look at the nature of the decision‑makers.  Here, we have a delegate of the Minister, a Minister of the Crown who, as Justice Branson noted in Ali, might be understood to take into account broader policy‑type considerations in this kind of decision, but secondly, we also have the Tribunal where the rules of evidence do not apply, and the Tribunal can consider matter that is not before the original decision‑maker.

Moreover, the Administrative Appeals Tribunal Act provides for a large degree of flexibility in the way that the Tribunal can conduct its procedures.  These were some matters that Justice Derrington in dissent focused on in the Full Federal Court’s reasons.  We say, in light of those matters, the fact that we are dealing not only with a broad task influenced by policy considerations and undertaken by decision‑makers who are very different from sentencing judges or juries and judges that convict, in light of those matters, we say that it serves to underline the statutory purpose to limit the power in the way that the Full Federal Court majority did.

I then need to turn to context, and I will do it briefly, as I know I am running out of time, and I do want to address leave.  My learned friend has submitted that Parliament must be understood to have acted on the basis of the overwhelming weight of authority when enacting the provision. 

Now, we say two things.  Firstly, we say that there was not, in fact, a consistent or well‑understood position on the authorities by 2014, and the case that we have provided to the Court overnight, the decision of Justice North in Kaur, we say supports that proposition, where a different principle more consistent with the Ali formulation was applied.

But, moreover, we say that it cannot be assumed that Parliament acted consistently with this well‑understood line of authority.  While in some cases the Court might see that Parliament did act in response to judicial interpretation, you need more than assertion.  You might need a statement to that effect in the second reading material, or a Law Reform Commission report, but it cannot just be asserted that Parliament must have understood this position on the authorities.

Your Honours, can I then turn to the application for leave to extend time.  We rely on the affidavit of the applicant affirmed on

19 January 2021, and that is at application book 231.  Your Honours, can I take that affidavit as read?

KEANE J:   Yes, you may.

MS FOLEY:   Thank you.  The applicant deposes that he was advised of the Full Federal Court’s decision in late October 2019.  The applicant decided not to appeal, and he deposes that he did that because he had been in detention at that time for five years and he felt overwhelmed by the process and the time that it would take.  However, after a conversation with his mother about the circumstances at that time in Sri Lanka, he decided to try to have the case heard.  That is at paragraph 8 of his affidavit.

We say it is apparent from the affidavit that, although there was delay by reason of his circumstances in detention, there was also additional delay by reason of the fact that he needed to find lawyers who could act on a pro bono basis.  Now we rely on those matters in support of the application for an extension of time in which to seek leave.

KEANE J:    Thanks, Ms Foley.  The Court will adjourn briefly to consider the course it will take in this matter.

AT 1.48 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.51 PM:

KEANE J:   The proposed appeal does not enjoy sufficient prospects of success to warrant the grant of special leave to appeal.  The application for special leave is dismissed with costs.

Adjourn the Court.

AT 1.51 PM THE MATTER WAS CONCLUDED