Lam v Minister for Immigration and Border Protection

[2019] HCATrans 40

[2019] HCATrans 040

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S210 of 2018

B e t w e e n -

SHU YUEN LAM

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 6 MARCH 2019, AT 8.56 AM

Copyright in the High Court of Australia

MR S.Y. LAM appeared in person.

MR P.M. KNOWLES:   If the Court pleases, I appear for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Lam, I have read your papers.  What I might do is ask Mr Knowles some questions first and if there is further something you would like to say I will ask you then.

MR LAM:   Yes.

HIS HONOUR:   Mr Knowles, really two questions.  First, was there anything stopping the delegate waiting until the review was completed, or at least waiting a little time to see whether it was before she made the decision?

MR KNOWLES:   Unlike the Tribunal, the delegate has no express power to adjourn a review from time to time or return – adjourn consideration of a matter from time to time and unlike the Tribunal, there is no formal process or timetable for a hearing.  But I do not suggest that it would not have been within the power of the delegate to defer consideration for a short period provided that deferral was consistent with the delegate’s obligation and the Minister’s obligation to consider a valid visa application.  So there is an obligation to consider a valid visa application and no express power to defer that consideration but nor is there any strict time limit imposed by the legislation by which a decision has to be made.

HIS HONOUR:   Thank you.  I noticed in the automated email response to Mr Lam’s request to reconsider the matter that the Department was conscious that reviews might take more than 28 days and that if extra time were required they would be sympathetic to a request to grant it.  Is that a fair summation of the position?

MR KNOWLES:   With one additional feature that is a fair summation of the position, your Honour.  The additional feature is that no further time was, at least expressly, requested. 

HIS HONOUR:   That was really my next question.  Surely it was implicit in the submission of the authority’s letter to the delegate that Mr Lam was asking to wait the 30 days, which it was predicted in that letter it would take for the review to be completed?

MR KNOWLES:   Your Honour, the letter – the authority wrote to the applicant on 4 March.  That is exhibit 4 to the applicant’s first affidavit.  It appears from the material before the Court that that letter was provided by the applicant to the delegate – or the Department – two days later on 6 March.

HIS HONOUR:   Yes.

MR KNOWLES:   There is no evidence that that was accompanied by any formal adjournment request.  I accept that some kind of forbearance may have been implicit although, as I said, it is not entirely clear.  What was explicit from the letter – that is the letter from the authority dated 4 March 2016 – is that most, but not all, applications are assessed within 30 days, not of receipt of the application, but receipt of evidence from an applicant to the request for review. 

There was nothing before the Department to allow it to determine three important matters, in my submission:  first, when and if evidence relevant to the review was or would be submitted to the authority; secondly, what grounds were being put forward in support of the application for review; and, thirdly, and relatedly to the second, what prospects there were that the review would be successful.

In relation to the first point, because the Department and the delegate were not aware of when the evidence relevant to the review was provided or would be provided, it cannot be assumed that this application would fall into the category of most applications being assessed within 30 days.

HIS HONOUR:   I wanted to ask you about that.  I noticed in that letter that there is reference to the evidence that “you” – meaning Mr Lam – “have provided” - I emphasise the present perfect tense – which rather suggests that it refers to evidence that he had already provided to them.

MR KNOWLES:   Yes, your Honour.  I accept that grammatically that is a fair construction, although it does not suggest one way or the other, I accept, that that was the entirety of the evidence relevant to the review.

HIS HONOUR:   Yes, I see.

MR KNOWLES:   That is, it may have been - relevant evidence may have been provided in more than one tranche but I accept that that is only a possibility if I am making a submission as to on the face of that document what was – and that was all that was before the delegate.

HIS HONOUR:   As to the grounds and prospects, I appreciate as you say that there is nothing in the letter to convey either, should one infer that they were significant considerations in the mind of the delegate in making the decision straight away rather than deferring?

MR KNOWLES:   Your Honour, in my submission, that can be inferred.  The other, perhaps, significant matter is – and I am conscious about the limits on which inferences can be drawn as to what decision‑makers had in mind, but does your Honour have material that was filed by the applicant yesterday, 5 March?

HIS HONOUR:   Yes.

MR KNOWLES:   That material, which consists of two emails that were sent soon after the delegate’s decision was made, the first email is from the applicant on 26 March 2016 requesting the delegate to reconsider the decision in light of the fact that a favourable review application had been obtained from the authority.  The second – and this is perhaps more important – is from the Department, not from the delegate.  The response was that the decision could not be revisited.  However, the applicant is welcome to have the application reviewed. 

Where that goes is that whilst we know the applicant, in fact, did not apply for review within the mandatory time limit, it can be inferred that a relevant matter which the delegate had regard to, is that unlike the position of the decision of the Tribunal, which at least according to the merits is final, the delegate’s decision was subject to merits review and if, as it turned out, the application for review of the trade recognition was successful, that would be a matter which the Tribunal could consider on merits review.

Now, that may not be a complete answer to the applicant’s complaint but it is, in my respectful submission, a significant factor that permitted the authority to go forward to make a decision in circumstances where there was still capacity for further consideration, should the review be successful.

HIS HONOUR:   Mr Knowles, do you know of any case, either first instance or on appeal, where it has been held or considered that the possibility of merits review was a reason not to wait?

MR KNOWLES:   No, your Honour.  I am not aware of any authority on that point.

HIS HONOUR:   I ask you because it strikes me as a slightly odd proposition that a decision‑maker can do something which would otherwise perhaps be regarded as unreasonable because he or she knows that even though they are doing the wrong thing it can be patched up on review.

MR KNOWLES:   Your Honour, I accept that that characterisation of the argument which I have put forward would be fair if that were the only reason which was the tipping point between reasonableness and unreasonableness but, in my submission, and for the reasons I have set out in the amended response, that is, one relevant factor that can be taken into account, as I said, I do not suggest it is a complete response.

HIS HONOUR:   Just go back to grounds – or the second and third of the considerations you mentioned, that the delegate was not aware of the grounds on which the review was being sought and the delegate was not aware of the prospects of success of the review.

MR KNOWLES:   Yes, those matters perhaps reflect a distinction between this case and the case of Ms Lee who, by her second migration agent, put forward cogent reasons for why it might be expected that a review application would be successful.

HIS HONOUR:   Would it be inaccurate to draw the conclusion that if these were significant considerations in the mind of the delegate, you would have expected the delegate to ask the applicant what the prospects were and what the grounds were?

MR KNOWLES:   No.  In my respectful submission, in circumstances where the delegate does have an obligation to consider a valid application and a valid application was made, it is not incumbent upon a delegate to go back to the applicant and ask the applicant why the visa criteria were not met and when they might be expected to be met.  Simply to suggest that the delegate somehow had an obligation to follow up the applicant as to the prospects of the review is beyond what the law would require as a matter of reasonableness, that is not to say a delegate might not choose to do it in a particular case, only that it would not demonstrate unreasonableness if that step were not done.

HIS HONOUR:   It is just that the delegate in this case knew that the reason that the certification had not been provided was because it was the subject of a review and that it was likely to be completed within 30 days.  I just wonder, in those circumstances, whether, if the grounds and prospects were real considerations for the delegate why he or she, in this case, did not pick up the telephone or crack off an email to the applicant as to those two things.  It seems like an obvious inquiry to make if they were really important considerations.

MR KNOWLES:   Your Honour, the reference to an obvious inquiry again requires some consideration be given to the obligations of the Tribunal and the respective obligation of an applicant to put forward sufficient material to demonstrate visa criteria are met and just like cases that have considered the reasonableness or otherwise of the Tribunal proceeding to determine a decision after an applicant has failed to attend a scheduled hearing, whilst each case must be determined on its own facts, the Tribunal as a general matter does not have an obligation to seek out and make inquiries as to why an applicant for review may not have attended a scheduled hearing. 

In my respectful submission and for the same reasons, the delegate does not have an obligation to tease out of an applicant further information about a review when that information is not advanced.  I appreciate that your Honour’s point perhaps is more subtle, is that if it is to be inferred that matters are an important matter weighing on the reasons for the delegate to proceed to make a decision, why would not that simple step have been taken, but essentially for the same reasons, in the absence of an obligation it is not either a denial of procedural fairness or unreasonable for the delegate to proceed to determine an application where all that has been provided to it is a letter saying that a review is on foot and that that review, in most cases, would be determined within 30 days.

HIS HONOUR:   Thank you.  One final thing, if I may, there is no reference, I think, in the decision record which would suggest that the delegate had turned her mind to the time it might take for the review to come through or the uncertainty which existed as to the grounds of review or prospects of success.  Is that correct?

MR KNOWLES:   Your Honour, the decision record which relevantly commences at page 23 of the affidavit of the applicant filed on 15 August 2018, at page 24 - I interrupt myself to say that this may be a longwinded way of saying your Honour is correct but to return to the decision record, at page 24 the delegate did refer to the provision of the letter on 6 March from the applicant of the letter of 4 March from the authority and it acknowledged the review application. 

It did not specifically refer to the timing which it might ordinarily be expected a review application to be completed, but that must be considered in light of the fact that that estimate of 30 days was only one which was said to apply to most cases and in circumstances where the delegate was not informed as to what the relevant issues would be, how voluminous the evidence provided was, or how complex the issues involved were.  It is, in my respectful submission, no – it is not an overriding consideration that most applications would be completed within 30 days for the simple reason that it is not clear whether this application for review would fit within that majority.

HIS HONOUR:   Yes, thank you.  That is all I wanted to ask.  Thank you very much, Mr Knowles, that is very helpful.

MR KNOWLES:   If the Court please.

HIS HONOUR:   Mr Lam, as I say I have read your materials.  Is there anything that you would like to add to them orally, now having heard Mr Knowles?

MR LAM:   Yes.  Your Honour, my name is Shu Yuen Lam and I did file another list of authorities yesterday.  There was a case which is The Minister for Immigration and Multicultural Affairs v Bhardwaj.

HIS HONOUR:   Yes.

MR LAM:   In that case the applicant was sick and cannot attend the hearing and AAT made a decision that the case was dismissed it and then they reopened the case in October that year and make a new decision.  I think this is a very reasonable practice and I have filed an affidavit yesterday.  That letter was sent to the delegate because I believe their decision was defective and that is why I plead them to revisit the decision. 

I think they did not do what AAT did in the Bhardwaj Case because I think a reasonable delegate should protect the interests of the visa applicant and they are knowledgeable – they are professionals in the migration system, the softwares, the procedures and also the migration legislation.  In contrast I am not a legally trained person – and also the material that I relied upon was just based on the publications and some guidelines by the delegate.  That is why I think the delegate should have a duty of…..which means that they have to communicate with the client openly, fairly and also honestly.

So if the client is in the situation that they are not aware of certain steps or they have made some little mistakes or some…..I think that is understandable and I think that is an implied statutory duty for them to inform the visa applicant that you have made a mistake here.  Or if they have uncertainty about the information that I have submitted they have to send me an email and inquire when it will be – when the outcome of the assessment will be completed and what sort of – why the initial application was refused.  But I have never received any correspondence from the delegate since the first email I received to request the information.  So that is why I think that is unfair and it does not reflect the procedure of fairness in this manner.  That is what I want to say.

HIS HONOUR:   Mr Lam, there was one question I wanted to ask you?

MR LAM:   Yes.

HIS HONOUR:   When did you first learn that the Federal Circuit Court did not have jurisdiction to entertain your application?

MR LAM:   In the hearing.  I was heard by the justice – the judge and also I was with Mr Galvin from Minter Ellison and in that hearing they have advised me that the only Court that could entertain this matter would be High Court.  At that moment I was frustrated and I do know that there is no chance in Federal Circuit Court.  So I have no way but withdraw my case in Federal Circuit Court and try to fight for my right and entitlement in the High Court.

HIS HONOUR:   So no one before that hearing suggested to you that the Federal Circuit Court lacked jurisdiction?

MR LAM:   No.  Actually I have filed an affidavit – can you give me maybe 10 seconds, I will just bring it out.

HIS HONOUR:   Are these Mr Galvin’s written submissions that you are referring to?

MR LAM:   Yes, and also the reason why I went to the Federal Circuit Court is because after the decision outcome at AAT I received a notification saying that I can apply to the Federal Circuit Court of Australia for a judicial review and I went on to the appropriate online web page and they have a brochure saying that FCCA can review some decisions under Migration Act but it did not specify what sort of decision that they do not have jurisdiction.

Therefore I have filed an affidavit for the Migration Amendment Bill 2018 because in that Bill – I think this is a very common issue, that people without legal background or their lack of proficiency and…..they do not which court that they have to attend for their type of decision, especially if they cannot financially afford a solicitor or barrister like the Minister – they can because they have got financial support but I do not have.  It is unfair for me because I am just lack of legal knowledge and I am trying to fight for my entitlement and rights.  So that is why I went to the Federal Circuit Court and I withdrew the case because I knew that they do not have jurisdiction and I come to the High Court.

HIS HONOUR:   Thank you very much, Mr Lam.  Anything further, Mr Knowles?

MR KNOWLES:   Only in relation to the plaintiff’s response to your Honour’s question about timing.

HIS HONOUR:   Yes.

MR KNOWLES:   Not so much to dispute factually his suggestion of when he first learnt of the matter being outside the Federal Circuit Court’s jurisdiction, but for your Honour’s benefit the timing as disclosed by the affidavit of the applicant that was filed on 23 January is such that the Minister’s submissions were made on 6 July – and that is clear from exhibit 5 – and the notice of discontinuance was filed on 17 July – that is clear from page 4 of that affidavit, being the letter from my instructing solicitors.

HIS HONOUR:   I take it the hearing was between those two dates, was it?

MR KNOWLES:   It would appear from the first paragraph, the second sentence, that is correct, your Honour, but the application was listed for a resumed final hearing on 1 August which suggests that there may have been a hearing anticipated to be spread over two days.  But I was not briefed in the matter and I do not know.

HIS HONOUR:   There is nothing to suggest that the Minister or his solicitor wrote or otherwise informed Mr Lam before those submissions of 6 July that he was in the wrong court, is there?

MR KNOWLES:   Your Honour, there is nothing before you.  There is – my instructing solicitor has just handed me – and I am reading from an electronic screen and I bear in mind that this is not a document that the plaintiff would have with him but with that made clear the document I am reviewing, an electronic copy of it, is a document called a response which is customarily filed in the Federal Circuit Court upon the making of an application.  It was filed on 19 July 2016, that is, approximately two years before the hearing in 2018. 

The grounds of opposition set out in that response and I quote them, are “The first respondent says that the application for judicial review should be dismissed with costs because the second respondent”, and I interpolate that is the Tribunal, “was correct to find that it did not have jurisdiction and the court has no jurisdiction to review the decision of the first respondent’s delegate as that decision was a primary decision (pursuant to section 476 of the Migration Act)”. 

So the Minister’s response which I accept is a formal legal document, perhaps not fully understood by the applicant without explanation, but it did, in fairly clear terms, say that one of the grounds upon which the application for judicial review in the Federal Circuit Court was opposed was the absence of any jurisdiction to review a decision of the delegate.  I will just show the applicant, if your Honour allows me, the document I was referring to.

HIS HONOUR:   If you want me to rely upon it there will be a need to put on an affidavit and Mr Lam will have to have an opportunity to respond to it, Mr Knowles.

MR KNOWLES:   Yes, your Honour, I would seek that leave.

HIS HONOUR:   That could be, I take it, deposed and filed by the end of today?

MR KNOWLES:   Yes, your Honour.  There will be no argumentative aspect of the affidavit.  It would simply formally annex that response.

HIS HONOUR:   I give you that leave. 

Mr Lam, you have heard that.  I expect you understand it.  I assume that you might say that you did not understand the significance of it but if you wish to say that you had better put it on a short affidavit which you can put in by the end of tomorrow.  I will grant leave to the defendant to depose and file an affidavit, to which will be exhibited the response to which counsel has referred.  I shall grant leave to the plaintiff to depose and file an affidavit by 4.15 on Thursday, 7 March in response to that.  Otherwise, gentlemen, I propose to reserve my decision.  Thank you both.

That means, Mr Lam, that I will consider it after I have had the two affidavits and you will be notified at a later date of when the decision will be produced.

MR LAM:   Your Honour, I do have something to say about the issue Patrick just mentioned.  Can I say it now?

HIS HONOUR:   Yes.

MR LAM:   The document that Mr Knowles had was a written submission by the Minister to me.  I did not rely on that submission because everyone would have their own point, would have their own argument.  We go back to the affidavit affirmed on 11 January 2019 on page 8.  So I have the first hearing with the Honourable Judge Barnes at the hearing on 27 June 2018 and she addresses the issue raised during that hearing whether the court have the judicial authority in relation to the purported privative clause decision.  Then the solicitor of the Minister have submitted the first respondent’s further written submission and he have clearly explained why the court have no jurisdiction in relation to a purported privative clause. 

So at that point of time, following this further submission, I learned that the Federal Circuit Court did not have jurisdiction.  Right after this further written submission I have submitted it is continuous and I have to pay $5,000 because I knew that I went to the wrong court.  So if the delegate did not make a defective decision I would not be at AAT, I would not be at the Federal Circuit Court, so all the matters starts from the defective decision.

HIS HONOUR:   I understand that, Mr Lam.  Those points are well understood.  This is something new.  What Mr Knowles has said is that there was an earlier document called a response which was filed in July 2016, 9 July 2016, in which he identified for the first time that he disputed the jurisdiction of the Federal Circuit Court.  That appears to be the fact and Mr Knowles’ client, the Minister, will put that on an affidavit which he will file today.  If you wish to say something in response to that, whether it be that you did not get it or you did not comprehend it or something else, you have until 4.15 tomorrow to put on an affidavit saying that.

MR LAM:   I understood your Honour.

HIS HONOUR:   Thank you.  I will reserve my decision.  I will adjourn now to a date to be fixed.

AT 9.32 AM THE MATTER WAS ADJOURNED