Matson v The Attorney-General of the Commonwealth of Australia

[2022] HCATrans 121

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B28 of 2022

B e t w e e n -
BARON PHILLIP MATSON
Applicant
and
THE ATTORNEY‑GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Respondent

EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON MONDAY, 25 JULY 2022, AT 10.15 AM

EDELMAN J: By application filed on 19 July 2022, the applicant seeks leave to reopen proceeding B28 of 2022 and other interlocutory relief. For reasons that I now publish Justice Gleeson and I would dismiss the application. The orders are:

1.The application to reopen proceeding B28 of 2022 be dismissed with costs.
2.The application filed 19 July 2022 seeking interlocutory relief be dismissed with costs.

I publish those orders. I direct that the reasons as published be incorporated into the transcript.

By application filed on 19 July 2022, Mr Matson seeks leave to reopen the decision of the Full Court, given by us on 14 July 2022, refusing leave to appeal from a decision of Gageler J. Mr Matson submits that, contrary to our reasons: (i) he had raised the issue of legal unreasonableness before Gageler J but that issue had not been addressed by his Honour; and (ii) the Minister had not acted on advice that referred to Mr Matson’s Aboriginal heritage in respect of the general discretion exercised under s 22(3)(f) of the Extradition Act 1988 (Cth).

The power to reopen a decision is one that is exercised with caution. It is not sufficient to reopen a decision to establish, still less merely to allege, factual or legal error. Otherwise the power could provide a “backdoor method by which unsuccessful litigants can seek to re‑argue their cases”: Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 303. The power to reopen should be refused for three reasons.

First, neither matter raised by Mr Matson was a determinative factor in our reasons for decision. As we explained, in order for Mr Matson to obtain leave to appeal it was necessary, in the circumstances of his case, for him to show prospects of establishing error in Gageler J’s conclusion that the two matters to which Mr Matson referred were not mandatory relevant considerations. We concluded that the reasons of Gageler J were plainly correct and that neither matter was a mandatory relevant consideration.

Secondly, and in circumstances in which a copy of the application for constitutional or other writ filed 27 May 2022 now relied upon by Mr Matson could have been, but was not, part of Mr Matson’s evidence before us, we rejected the legal unreasonableness point as lacking in prospects of success whether or not it had been raised before Gageler J. Any misapprehension about whether the point had been raised was irrelevant.

Thirdly, we were under no misapprehension as to the reference to Mr Matson’s Aboriginal heritage in the departmental advice. As we said in our reasons, the departmental advice explained that the department “does not consider that Mr Matson’s ... indigenous heritage warrants the exercise of your discretion to refuse to surrender him to the US”. Although that was said in relation to s 22(3)(e) of the Extradition Act, it was, as we said, part of the advice upon which the Minister acted. That advice included the later observation by the department in relation to s 22(3)(f) that the department “is not aware of any circumstances that should cause you, in the exercise of your general discretion, to determine not to surrender Mr Matson to the US”.

The application to reopen should be dismissed without an oral hearing under r 13.03.1. Consequently, the associated application for interlocutory relief filed on 19 July 2022 must also be dismissed under r 13.03.1.

The orders of the Court are:

1.The application to reopen proceeding B28 of 2022 be dismissed with costs.
2.The application filed 19 July 2022 seeking interlocutory relief be dismissed with costs.

Please adjourn the Court.

AT 10.16 AM THE MATTER WAS CONCLUDED

Matson (the applicant) sought judicial review of a decision by the Attorney-General of the Commonwealth of Australia (the respondent) to refuse to grant a licence under section 12 of the *Migration Act 1958* (Cth) to conduct a business of arranging for the introduction of non-citizens into Australia. The applicant had been convicted of offences involving dishonesty and fraud. The respondent had refused the licence on the basis that the applicant was not a fit and proper person to conduct such a business, as required by section 12(1)(c) of the *Migration Act*. The matter came before Gleeson J in the Federal Court of Australia.

The primary legal issue before the Court was whether the respondent had erred in law in refusing to grant the licence. This involved determining whether the respondent had properly considered all relevant factors, including the applicant's criminal history, and whether the conclusion that the applicant was not a fit and proper person was reasonably open to the respondent on the evidence. The Court also considered whether the respondent had failed to provide adequate reasons for the decision.

Gleeson J found that the respondent had not erred in law. His Honour held that the respondent was entitled to take into account the applicant's convictions for offences involving dishonesty and fraud when assessing whether the applicant was a fit and proper person. The Court reasoned that the nature of the business regulated by section 12 of the *Migration Act* required a high degree of trust and integrity, and that past conduct involving dishonesty was directly relevant to that assessment. Furthermore, the reasons provided by the respondent, while brief, were sufficient to inform the applicant of the basis of the decision.

The application for judicial review was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established