Manaf & Ors v Minister for Immigration and Citizenship & Anor

[2010] HCATrans 31

[2010] HCATrans 031

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne     No M87 of 2009

B e t w e e n -

ZAHARA ABDUL MANAF

First Applicant

JAMAIN MOHAMED AMIN

Second Applicant

NUR LINA BINTE MOHAMED AMIN

Third Applicant

MOHAMMED FAKHRI MOHAMED AMIN

Fourth Applicant

MOHAMED RIZAL MOHAMED AMIN

Fifth Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 FEBRUARY 2010, AT 3.05 PM

Copyright in the High Court of Australia

__________________

MR T.V. HURLEY:   May it please the Court, I appear on behalf of the applicant.  (instructed by Erskine Rodan & Associates)

MR C.J. HORAN:   If the Court pleases, I appear for the first respondent.  (instructed by Clayton Utz, Lawyers)

FRENCH CJ:   Yes, Mr Hurley.

MR HURLEY:   Your Honour, this is an application being prepared against the decision of Justice Sundberg.  It has two aspects to it, your Honour.  The first aspect raises the question of whether the provisions in section 66 of the Migration Act can be exercised on more than one occasion and in that question there is a sub-question as to what is the consequence where the Minister accepts that an earlier exercise of the power to notify is defective or is required by law within the principle identified by this Court in Bhardwaj.

KIEFEL J:   Well, I am not sure whether it is entirely accurate to say that in this case the Minister accepted that first it was not a valid exercise.  The circumstances are rather different from Bhardwaj, are they not?

MR HURLEY:   Your Honour, the Minister by making the second notification letter ‑ ‑ ‑

KIEFEL J:   It was simply responsive to a notification of change of address, was it not?

MR HURLEY:   It was, your Honour, but if the Minister is correct, there can only be one exercise of the power of notification and then the decision to exercise that power again must negate the first exercise of power.  On the other hand, if we are right and there can be two exercises of the power, then there could be two exercises of the power, the second one cancelling out the first.  But in this situation it was accepted by the Minister that the administration of the Act required a second exercise of the power to inform, the validity of the first exercise of power, in our submission, is not only raised but is terminated by the decision to re‑notify.  So in that sense, your Honour, the exercise of the power for the second time which, either cure the error or because, as we put to Justice Sundberg, the proper administration of the Act required it, required that the power be exercised a second time.

We submit that the proper construction of the Act is not as his Honour found, but does permit the power of notification to be exercised on more than one occasion.  We filed the material in this Court to answer the statement in the respondent Minister’s contention that that is not the way the Act is administered and my instructors have found examples where re-notification has occurred either because the Minister has accepted that section 66, and in particular subsection (2), had not been complied with and also on occasions where the Minister has, in our submission, properly concluded that the proper administration of the Act required that re‑notification occur.  I do not know whether the Court has had a chance to consider that affidavit, but if the Court would be assisted by a summary of the ‑ ‑ ‑

FRENCH CJ:   It just recites a number of cases in which it is said that the re‑notification has occurred does it not?

MR HURLEY:   It does, your Honour, but it answers the submission that – at the application book page 81 in paragraph 35 of the Minister’s contentions – as to the basis on which the Act is administered.  Of those six clients that are identified, the first one was set aside because the review advice was incorrect ‑ ‑ ‑

FRENCH CJ:   I do not think it is a good idea to waste your time getting into the detail of that.  You just purport to offer examples of cases in which the Minister, or at least the Department has done things contrary to the Minister’s assertion about the nature of the practice.

MR HURLEY:   Yes, your Honour.

FRENCH CJ:   We are really more concerned about ultimately whether there has been an error of law or principle which warrants a ground of special leave.

MR HURLEY:   Well, it is our submission, your Honour, that these examples show that the operation of the Act is advanced by – that it cannot have been the intention of Parliament that the power to notify, once exercised, can – I will go back, your Honour.  The provision itself, in our submission, is silent as to whether or not the power can be exercised once and only once.  It simply requires that the decision of the Minister is to notify and it does not restrict a Minister to one notification.  The examples that we have given show that in the operation of the Act the objects it sets out to achieve are advanced if that power can be exercised on subsequent occasions once it is accepted that the first exercise is defective or once a Minister accepts that the first exercise is so questionable as to be accepted as being defective. 

For that reason we submit that the conclusion of Justice Sundberg to accept what he said was the first limb of the Full Court decision in H, that exercise of the power exhausts the power, is not a construction that is consistent with the intention of Parliament because it renders administration of the Act difficult in the practical context and it is not a construction of the Act which is consistent with the intention of Parliament as expressed by the amendment that was introduced in 2008 in section 494C(7) which enables a visa applicant to contend that real notice that they in fact receive a decision when they do receive a decision not withstanding the deeming provisions.

FRENCH CJ:   We are concerned here with the words of statute and the effect of 494C(4) read with 494B(4), are we not?

MR HURLEY:   Yes, your Honour, and it was said the primary provision, section 66, as to the duty to notify.

FRENCH CJ:   Yes.

MR HURLEY:   These are prescribed needs ‑ ‑ ‑

FRENCH CJ:   These are in aid of that – indicate how that duty is discharged.

MR HURLEY:   Yes, your Honour.  Those provisions deem that when the prescribed method is chosen, when the notification occurs, but they are silent as to whether the Minister can notify on more than one occasion.

FRENCH CJ:   The question is whether the person is taken to have received the document when the Minister has gone through or complied with a requirement or used a mechanism in section 494B.

MR HURLEY:   And a person can be taken to have received the document, your Honour, and, in our submission, the proper construction of the Act requires that the Minister can deliver the document again so that the applicant is entitled to again say that the applicant has another point of time in which they can say that they have received a document.  That is the effect of section 494C(7) that was introduced.  The deeming provisions in 494C are a means to an end.  The end is section 66.  The administration of the Act requires, as your Honours are familiar with the intricate appeal mechanisms and the tight time limits that they require, mean that while there is no doubt a public interest in finality, that public interest is achieved by the Minister having the ability to notify on more than one occasion.  We submit his Honour Justice Sundberg erred in construing the Act by selecting the first basis of the decision of the Full Court in H.  We observe in terms of special leave points that this means that various Full Court decisions were rationalised by Justice Sundberg although he was sitting as a single justice.

FRENCH CJ:   Exercising appellate jurisdiction.

MR HURLEY:   He was exercising appellate jurisdiction, but he was one justice and his decision as a one justice rationalises the decision of the Full Court in H and in Zhang.  We submit, your Honour, that his Honour erred, particularly, your Honour, his Honour seems to have misapprehended the submission that was made – that he describes, application book 46 in paragraph 39, the application of the principle in Bhardwaj.  We submit that that decision is authority for the proposition that any holder of statutory power may exercise that power on becoming convinced that a previous exercise was not as required by the law.

KIEFEL J:   That is because in circumstance where that which is required by a statute to be undertaken has not been undertaken, so the power remains to be exercised.

MR HURLEY:   Or, with respect, if the decision‑maker makes that conclusion.

KIEFEL J:   But this is a notification of a decision, not the decision itself.

MR HURLEY:   But the notification of the decision is a duty imposed by section 66 and if the decision-maker becomes, in our submission, satisfied that that duty has not been discharged, it can be re-exercised.  The point we make, where the misapprehension was concerned, is his Honour at paragraph 40 addresses that submission to the decision of the MRT that was there in question.  The submission was put as to the exercise by the Minister’s staff or the officers of the Department on re‑notification in August 2007.  We have said that they had achieved a state of satisfaction that their exercise of power was not required by the Act and re‑notified and, as I would put the submission, once they have reached that decision that the earlier decision was not an effective exercise, there is no exercise of power, and if the second exercise is equally defective, there remains no exercise of the power, which equates to the practical position of my clients who were unaware at all times of these decisions.

I am aware of the time, your Honour.  There is a second leg to this matter.  So the first leg, if I could put it that way, is that his Honour erred in construing section 66 as limiting the Minister to one chance and one chance only to notify.  The second leg, as it were, your Honour, relates the notification that occurred in March 2009 which was performed by the Minister following orders of the Federal Magistrates Court.

KIEFEL J:   This is your issue estoppel point, is that right?

MR HURLEY:   Well, your Honour, whether it is issue estoppel or by virtue of a declaration at the same time that there was as at the date or from the date of the decision of the Court there was no earlier notification as and from the decision of the Federal Magistrate on 6 March 2009, any notification after that date would be the first notification because as between the three parties, my client, the Minister and the Tribunal, parties to the proceeding, there is a declaration that there was no notification.  So the notification that the Minister made on 24 March 2009 was on that date, at that time, the only notification that the parties could recognise and my client was entitled to approach the MRT, as it did, by making an application on 14 April 2009. 

The point we make, relying on the decisions we refer to, is that the Minister having chosen to notify us and perform the duty imposed by the Act and recognised and enforced by the Court, creates a situation that is protected, as it were – to use the word in Commissioner for Railways v Cavanough – and my client having exercised the consequent right of applying to the Migration Review Tribunal, finds herself and her family, in our submission, validly pursuing in that Tribunal merits review of the decision that was made in August 2007.  Whereas we submit the first decision requires special leave to clarify the notification provisions of the Act which, as we depose in the affidavit there are diversions of opinion, the second ground relating to the position of acts done consequent on orders of a court while those orders are not stayed and not appealed is a matter of itself that requires a grant of special leave. 

To elaborate, if my client erred or if my client – to establish why it is that the Minister having acted on the decision of the court and my client having engaged the statutory right of review by the Tribunal that it did on 14 April 2009, why that set of circumstances is otherwise than was the situation before the Minister sought the extension of time.  We do note, your Honour, that it is ironic that we are only here because the Minister was granted an extension of time in relation to a statutory regime which does not permit to my clients any such indulgences. 

Your Honour, we submit that the decision of Justice Sundberg is attended by doubt, that the decision that he has made preventing the Minister from notifying on a subsequent occasion is one that is of great moment in the administration of this Act and, as we have set forth in the affidavit, contradicts what we say is established practice and the understanding upon which the Act is seen to work by those who work under it.  The second leg, as I have just called it, your Honour, brings into question the effectiveness of acts done under court order where the order is not stayed and the relationship of the parties is declared by the Court.

Your Honour, there are no factual matters in dispute and if my client or when my client succeeds following the grant of special leave, the position that we will obtain is that my clients will finally obtain merits review, as we say, is the intention of the statutory scheme.  We seek special leave, your Honour.  Unless I can be of further assistance.

FRENCH CJ:   Thank you, Mr Hurley.

In our opinion the circumstances of this case do not give rise to any question of principle in statutory construction and has insufficient prospects of success to warrant the grant of special leave.  Special leave will be refused.

Mr Horan, do you seek costs?

MR HORAN:   I do, your Honour.

FRENCH CJ:   Can you resist that, Mr Hurley?

MR HURLEY:   Only, your Honour, on the question of justice, that what underpins all of this is that my clients are only here because they never received notification of the decision.  Apart from that, your Honour, no.

FRENCH CJ:   Yes.  Special leave will be refused with costs.

The Court will now adjourn.

AT 3.23 PM THE MATTER WAS CONCLUDED