Kim v Minister for Immigration & Citizenship & Anor

[2008] HCATrans 342

[2008] HCATrans 342

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S247 of 2008

B e t w e e n -

JEONG DAE KIM

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

FRENCH CJ
GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 SEPTEMBER 2008, AT 9.53 AM

Copyright in the High Court of Australia

MR S.B. LLOYD:   May it please the Court, I appear in this matter with my learned friend, MS C.C. SPRUCE for the applicant. (instructed by Teleo Group Pty Ltd)

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear with MR G.T. JOHNSON for the first respondent. (instructed by Australian Government Solicitor)

FRENCH CJ:   There is a submitting appearance for the second respondent.  I understand this is a case in which an extension of time is required.  Mr Gageler, is there any opposition to that?

MR GAGELER:   It is not opposed, your Honour.

FRENCH CJ:   All right.  The extension of time necessary is granted.  Yes, Mr Lloyd.

MR LLOYD:   There are two issues in this application.  I will briefly state each and then develop them.  The first issue is, in reviewing a decision to cancel a visa is the Migration Review Tribunal constrained by the preconditions on the exercise of power that applied to the delegate.  In this respect the issue goes to the extent to which the metaphor often used at the Tribunal, stands in the shoes of the primary decision‑maker, is accurate and that was a metaphor recently used by Justices Kirby and Kiefel in the Shi decision – Shi v Migration Agents Registration Authority.

The second issue is where the Tribunal is a party to proceedings in which a court has made orders based on concessions that a decision to cancel a visa was invalid, is it open to the Tribunal to affirm that decision to cancel.  I will deal with that second matter briefly at the end.

Returning to the first issue, the applicant’s case is based on five propositions:  first, that section 119 of the Migration Act, which imposes a duty on the Minister to give a notice of any intention to cancel a visa, was not complied with in this case.  This is not in dispute.  In this case a notice was sent to the wrong address, one where the delegate knew the applicant did not live or work.  Secondly, the effect of section 124 of the Migration Act is that the Minister may cancel a visa of a person within Australia under section 116 only if a notice under section 119 was properly sent.  It follows that in this case a precondition to the Minister having the power to cancel was never enlivened.  Hence, the Minister or delegate never had the power to cancel.

GUMMOW J:   What do you say about – we have so many numbers – paragraph 21 in Justice Tamberlin’s reasons at page 57?  Does that not encapsulate the situation as the Full Court saw it?  It all goes back to Brian Lawlor, does it not?

MR LLOYD:   No, your Honour.  My case is premised upon the correctness of Brian Lawlor.  The distinction is:  Brian Lawlor was a case, as was Zubair, which I will come to later, where it was argued that because the delegate’s decision was invalid, the Tribunal had no jurisdiction.  My argument is that, even though the delegate’s decision was invalid, that is irrelevant to my argument.  My argument is that – I do not dispute that the Tribunal had jurisdiction – it erred in the exercise of its jurisdiction because it faced the same constraint that the delegate faced.  The delegate did not have power to cancel because a precondition to the exercise of the power was not enlivened, and that was still the position when the Tribunal made its decision.  It still had not been enlivened.  So it, in my submission, gets the same power as the delegate but subject to the same relevant constraint on that power.  In substance, there was a jurisdictional fact.

GUMMOW J:   What is the jurisdictional fact?

MR LLOYD:   That a notice was given and certain time passed.  That fact did not exist.  That meant that, as a result of section 124, the Minister had no power to cancel and that meant that until a notice was given on review the Tribunal had no power to cancel.  However, I do not say on review – and this is where I part company with the Brian Lawlor line of territory.  I do not say the Tribunal had no power to undertake the review.  On the contrary I say it did have power.  What it should have done is what Justice Brennan did in the Upton Case.

GUMMOW J:   What is the citation of Upton?

MR LLOYD:   I have a copy here that I can provide to the Court.  I unfortunately brought only three copies so perhaps I will share my copy with my friend.  It is a decision of his Honour sitting as the AAT but no worse for that in my submission.

GUMMOW J:   It predates Brian Lawlor.

MR LLOYD:   I do not think it predates his Honour’s decision in Brian Lawlor, which was upheld, but it is certainly consistent with Brian Lawlor.  Your Honour will see at page 680 in the second paragraph from the bottom – this is a case where a decision had been made to cancel a pilot’s licence.  The Tribunal said:

In our view Mr Upton’s conduct fell short of discharging his duty with respect to the safe operation of his aircraft.

Over the page at the top of page 681 the Court says:

We would not therefore alter the decision of the Regional Director if he had exercised his powers in the manner which the Regulations prescribe . . . 

It is a drastic power which the Regulations permit him (or his delegate) to exercise only after he gives to the holder of the licence an opportunity to show cause why the licence should not be suspended . . . 

But the secretary or his delegate is bound to abstain from making a finding or reaching a decision until the opportunity to show cause has been given.

Over the page at page 682 at about line 6 towards the end of the line:

In the present case, the Regional Director did not give the holder of the licence an opportunity to show cause in accordance with sub‑reg (3) before making his finding and reaching his decision.  As failure to comply with sub‑reg (3) precludes the exercise of the power to suspend under sub‑reg (1), it follows that the Regional Director had no power to suspend the applicant’s licence . . . 

The jurisdiction of this Tribunal to review the suspension is not lost on that account.

So that is premised on my approach.  At the end of that paragraph:

The decision of the Regional Director was outside the power vested in him, in the circumstances, but that is relevant to the Tribunal’s decision, not to its jurisdiction.  It requires the Tribunal to set the decision aside:  it does not require the Tribunal to refuse to review the decision.

In the present case we set aside the decision -

So, even though the Court thought on the merits that the decision was the correct decision they set it aside and substituted a decision to take no action.  That is what we say should have been done in this case.

GUMMOW J:   Wait a minute.  What orders do you then seek at page 72?  Are they orders of the nature found in Re Upton?

MR LLOYD:   If there was a writ of mandamus that directed the second respondent to issue and hear and determine the applicant’s application for review according to law then certainly we would say that, if this Court accepted the arguments – and what it would do according to law is the Tribunal would then exercise its jurisdiction to set the decision aside and substitute a decision not to have made the cancellation.

CRENNAN J:   Do you not, in that argument, run into a dilemma which was pointed out by Chief Justice Bowen in Brian Lawlor that when you raise a jurisdictional point in this way, such that the original decision is a nullity, if I can refer to it that way, you are asserting that there is really nothing to appeal from.  In a way you are making a point about your own want of locus standi.

MR LLOYD:   With respect, your Honour, I am not doing that.  In my submission, the scheme of the Act is that the Act, in effect, gave my client a choice.  After the decision, his visa was cancelled.  He could have gone to the Migration Review Tribunal or he could have come to this Court.  He had no other choices.  He could not go to any other court.  In my submission, what the Migration Review Tribunal can do on review is exactly what Justice Brennan indicated could be done, which is it could say, “Well, my power on review is constrained by the same jurisdictional fact as the delegate, so the correct decision would be not to cancel”.  So rather than having to come to this Court, the appropriate thing to do is to go to the Review Tribunal and have the matter set aside administratively by a senior administrator in effect saying:  these things – jurisdictional facts not done; this should be sent back and started again.

FRENCH CJ:   The authority of the Tribunal to deal with the matter depended upon whether it was an MRT‑reviewable decision.  Is that right?

MR LLOYD:   That is so, your Honour.

FRENCH CJ:   Does the definition of “MRT‑reviewable decision” include a purported decision?

MR LLOYD:   It does, your Honour.  That gives the Tribunal that jurisdiction.

FRENCH CJ:   Have you pointed us to the actual terms of the definition?

MR LLOYD:   The definition of “MRT‑reviewable decision”?

FRENCH CJ:   Yes.

MR LLOYD:   I think it is in section 338.  My friend conveniently has copies.  It is section 338(3).

FRENCH CJ:   Thank you.

MR LLOYD:

A decision to cancel a visa held by a non‑citizen who was in the migration zone at the time of the cancellation is an MRT‑reviewable decision -

It includes sub‑categories.  I accept entirely that that includes decisions which are invalid.  My proposition is that the appropriate place to go is not this Court but to the Migration Review Tribunal, and my client should not have had to give up a good point about the absence of a jurisdictional fact by choosing to go to the MRT instead of coming to this Court but is able to take the point, not as a point of judicial review but as a constraint on the Tribunal’s power, in effect, to affirm a decision to cancel when there was no power to cancel in the first place.

CRENNAN J:   So are you accepting jurisdiction to proceed?

MR LLOYD:   I entirely accept that the Tribunal had jurisdiction, so I am not in a position like Brian Lawlor or Yilmaz.  Perhaps I should say that Justice Gyles in his decision in the court below at page 61, as I recall, says at the end of paragraph 37:

After failure on the merits, the appellant seeks to avoid the consequences of that failure by relying upon the invalidity of the original decision.

That approach is inconsistent with a long line of Full Court authority ‑

But that was not the argument that was put.  Some of those authorities are inconsistent – all of those authorities are inconsistent with the idea that invalidity of the original decision is a problem but we do not rest our case on the invalidity of the original decision.  It may be invalid.  In fact, a court has already held it was invalid.  The original decision is neither here nor there.  The question for this case, and why we say it is a matter of importance, is it raises the question to what extent do jurisdictional facts that constrain the enlivening of a statutory discretion transfer from the delegate to a Review Tribunal.

GUMMOW J:   I think we need the definition of “decision”, do we not?  Is “decision” not defined globally as including “purported decision”?  You have the advantage of having the full Act.

MR LLOYD:   Yes.  “Migration decision” is defined as including a privative clause decision or a purported privative clause decision.  That is in section 5E, I think.  That definition is used in the context of jurisdiction of the Federal Court and the Federal Magistrate’s Court and this Court.  It is not used in the context of jurisdiction of the review tribunals which just use the word “decision” or “MRT‑reviewable decision”.

FRENCH CJ:   The problem with the “privative clause decision” definition which really underpinned in part what was decided in S157 was that it did not cover purported decisions being made beyond power and subject to jurisdictional error because it was a decision made under the Act and then I think the definition was changed to widen it subsequently.

MR LLOYD:   It was changed, but only ‑ ‑ ‑

FRENCH CJ:   But the problem may not have arisen in respect of MRT decision and maybe there was no definition of “decision” at all which applies to MRT‑reviewable decision.

MR LLOYD:   As I understand it, there is not a definition of “decision” which limits it to valid decisions and we are not saying that there is.  In fact, these cases also just – on the contrary, on the Brian Lawlor line that review is available for invalid decisions.

FRENCH CJ:   Just coming back to your substantive point, you mentioned transfer, as it were, of jurisdictional limitations from the delegate to the Tribunal.  I mean that is just a metaphor.  It is really a question of what power the statute gives to the Tribunal, what its authority is.

MR LLOYD:   Precisely, and the fourth of the propositions I was going to come to was that the Tribunal’s role is to do as Justice Kitto said in Mobil Oil which again, to use an expression that was adopted by Justices Hayne and Heydon in the Shi Case, is to do over again what the delegate did.  So the function of reviewing is to do again and subject to some provision which removes a jurisdictional constraint that the delegate had my submission is that the jurisdictional constraints facing the delegate, at least ones that limit the enlivening of the power to make a decision, carry over to the Tribunal.

FRENCH CJ:   But the concept of review just describes the process that the Tribunal undertakes when it entertains an application for review.  What is significant is then the power that it has, after having undertaken that process.

MR LLOYD:   I accept that, your Honour, and the power it has is relevantly to either affirm a decision or to set it aside.  Now, affirming a decision leaves the decision on foot.  Now, if the Tribunal finds – as we say it should have found – that there was a jurisdictional fact that was not enlivened then it should say, “I cannot affirm that decision, I cannot say it is the correct or preferable decision because it should never have been made.  What I should do is set it aside and substitute the decision” as Justice Brennan had done in that earlier case.

CRENNAN J:   Was it not the fact that the Review Tribunal - first of all it has different process; there is a hearing and also it has its own notification obligations which we looked at just in the last case, 359A.  So it has a different process that is followed?

MR LLOYD:   Well, I accept, your Honour, that it has its own procedures, but in the same way under section 349 the Tribunal also has access to all of the procedures that the Minister has.  This Court has held that in a case called NAFF that not only does it have its own procedures, it has the additional procedures that the Minister has.  But more critically this is not just a matter of procedure.  This is, in my submission, under a proper construction of section 124, a lack of power to decide.  So the ability to decide never arose and so if the Minister could never have made the cancellation decision then it is not just a matter of a procedure to be adopted in making a decision, it is a power that simply never arose.  The circumstances did not arise because the jurisdictional fact did not arise.  Whether the jurisdictional fact be a procedure or a fact, in my submission, the same principle applies and the Tribunal is equally constrained, absent some legislative indicia to the contrary.

GUMMOW J:   Just explain to us how section 349 would be construed to achieve the result you wanted to achieve?  That is the relevant powers, is it not?

MR LLOYD:   That is so.  So the Tribunal has under subsection (1) “all of the powers and discretions conferred by” the Act, in my submission ‑ ‑ ‑

GUMMOW J:   On the Minister?

MR LLOYD:   On the Minister.  Then it has those powers for the purposes of doing what subsection (2) allows it to do and subsection (2) allows it to either affirm a decision, vary it or inter alia setting it aside and substitute a new decision.  In my submission, what it does on review is it says “I should do again what the Tribunal did.  That requires me ‑ ‑ ‑

GUMMOW J:   What is the force of section 349(4)?

MR LLOYD:   That prevents a Tribunal from making a new decision or varying an old decision to be something which would itself be invalid. 

GUMMOW J:   Do you rely on subsection (4)?

MR LLOYD:   Well, it is certainly consistent with my submission, but ultimately what I am saying is that affirming the decision – the Tribunal could not have affirmed a decision – I will go back a step.  What the Tribunal should do on review is to do again that puts itself in the position of saying should this person be cancelled, let us look at the preconditions; the precondition to the exercise of power has not been met.  Doing that, I am standing in the shoes of the power under section 116 as limited by 119 and 124.  I then decide because of that I cannot affirm the decision and the only – well maybe not the only option – but certainly an option and we say the correct option would be to set the decision aside and substitute a new decision.  Thank you.

FRENCH CJ:   Thank you, Mr Lloyd.  Yes, Mr Gageler.

MR GAGELER:   Your Honours, his Honour Justice Gyles in the Federal Court described the applicant’s argument as ingenious, but misconceived.  If your Honours look behind tab 1 of our bundle of authorities to the second‑last page your Honours there see the two relevant sections, the most critical sections of the Migration Act, sections 348 and 349.  Our learned friend’s argument concedes that the Tribunal had jurisdiction under section 348 to review the decision of the delegate.  That is, as your Honours see, a jurisdiction and a duty imposed by section 348(1).  But the argument then goes on to deny that the Tribunal had the power under section 349(2)(a) to affirm the decision. 

In our respectful submission, as Justice Gyles crisply pointed out, the argument in its essence misconceives the nature of the review that section 348 mandates and for which purpose the powers under section 349(1) are expressly conferred.  The nature of the review as this Court recently emphasised in Shi is a determination by the Tribunal itself on the material before it of what is the correct or preferable decision to be made.

So far as the powers are conferred under section 349(1) they are conferred for the purposes of a review of that nature.  The power that is picked up in substance by section 349(1), as Full Courts have repeatedly held in this context, is the substantive discretion of the delegate – or the Minister or the delegate – under section 116 to cancel or not to cancel the Act if a ground is made out.  The exercise of that power by the primary decision‑maker is subject to the procedural constraint in section 119 which if not followed, as section 124 makes clear, results in the invalidity of the decision purportedly made under section 116.  But that procedural constraint, amongst other procedural constraints, applicable to the original

decision‑maker is simply not applicable to the Tribunal which has its own procedures set out in the Act, section 359A and so forth.

So when one gets then to section 349(2), so far as the final decision of the Tribunal itself is concerned, it is in making one of the four sorts of orders under section 349(2) that the Tribunal gives effect to its own separate substantive decision as to whether ‑ ‑ ‑

FRENCH CJ:   Affirming the decision is not simply a declaration that the decision of the delegate was right.  It is a substantive exercise of power.

MR GAGELER:   It is a substantive exercise of power as your Honour has said in the context of section 43 of the AAT Act on numerous occasions.  If your Honours flick over within that bundle to tab 10, your Honours see a decision of the Full Court in Uddin which our learned friends point to as the high‑water mark of one Full Court, at least in one joint judgment in the Full Court suggesting well there might be another way of looking at it.  At page 15 of Uddin, your Honours see right at the top of the page a citation from Madafferi where your Honour the Chief Justice was a member of the Court citing within that citation your Honour the Chief Justice in Powell v Administrative Appeals Tribunal. 

What your Honour first in Powell and then in Madafferi as a member of the Full Court was pointing out was that the exercise of power by the Administrative Appeals Tribunal and then by the Migration Review Tribunal is itself a substantive exercise of power, it is not a re‑exercise of power of the original decision maker.

GUMMOW J:   Was there any variation between Justice Tamberlin and Justice Gyles in their reasoning, or is it just that Justice Gyles is crisper, if I can put it that way?

MR GAGELER:   Yes, Justice Gyles was a member of most courts, your Honour, that have dealt with the same argument from my learned friend so he was getting crisper as he went along.  If the Court pleases.

FRENCH CJ:   Yes, Mr Lloyd.

MR LLOYD:   I accept what my friend says that Justice Gyles did get crisper, but in my submission his Honour in Ahmed erred, with respect, in saying that the role of the Tribunal does not extend to considering whether there has been compliance with statutory provisions.  In my submission that is the very essence of what the Tribunal does, but the Ahmed reasoning which underlies this is premised upon that proposition that the Tribunal’s role does not extend to that.  That again is adopted by his Honour in this reasoning at page 62 when he says:

The sole function of the Tribunal is to provide a review on the merits –

My proposition is simply that that is not the sole function of the Tribunal and it needs to decide its own propositions of jurisdiction.  If I take the Court to page 52 at paragraph 8 this was a case where the Tribunal – the applicant had made an application outside of the 28‑day time limit.  The Tribunal had to decide whether or not it was made within the time limit.  It decided that the notice by the delegate was invalid or ineffective to start the time running and that is just essentially the exact same thing that I say that this Tribunal could have decided in this case, and should have decided that that was still a constraint.

My friend took the Court to the decision in Madafferi and Uddin.  That was, of course, a decision that I relied upon in that case to support my argument and I continue to rely upon it because it stands for the proposition which the Full Court accepted in the court below that affirming a decision leaves untouched the underlying decision.  Yes, it is an exercise of power, but it leaves the underlying decision untouched.  In my submission, what one does in affirming the decision is to ‑ ‑ ‑

GUMMOW J:   In the end, you know, all this is a question of statutory construction ‑ ‑ ‑

MR LLOYD:   Well, I accept that entirely, your Honour, but there is ‑ ‑ ‑

GUMMOW J:   Why does not what the Full Court said give a more sensible operation to the Act?

MR LLOYD:   Well, because it then puts my client in a position where he would have to come to this Court if he wanted to take this good point which was successful for his children in the Federal Magistrates Court; he could not do that in the Federal Magistrates Court.  He either takes it in this Court or abandons this ground and faces – comes to this Court, faces detention while he awaits interlocutory relief in this Court, or alternatively goes to the Migration Review Tribunal and on my friend’s argument has to abandon this point entirely.

In my submission, that would be an unusual construction of the Act which would force someone to elect between those options when, on my construction, what the applicant would do is say “Well, I have got a good procedural point.  It may or may not win.  I have also got a good merits point.  I will go to the Migration Review Tribunal.  I will tell them that the Tribunal should not exercise the power to affirm because the constraint is not there.  But if I am wrong I will maintain my merits review point and

then if I want to and I lose in the Tribunal I can then go to the Federal Magistrates Court and still maintain the jurisdictional fact point, which has not been abandoned”.

In my submission that is a better and more likely construction of the Migration Act than one which sees somebody forced to an election between seeking interlocutory relief in this Court and abandoning a point and going to the Migration Review Tribunal.  May it please the Court.

FRENCH CJ:   Thank you, Mr Lloyd.

The Court is of the opinion that the decision of the Full Federal Court was correct.  Special leave to appeal should be refused and the respondent to have the costs of the application.

AT 10.25 AM THE MATTER WAS CONCLUDED