McDade v MIMA

[2002] HCATrans 200

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P19 of 2001

B e t w e e n -

STEPHEN GERARD McDADE

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 31 MAY 2002, AT 11.44 AM

Copyright in the High Court of Australia

MR M.T. RITTER:   May it please the Court, I appear for the applicant.  (instructed by Gibson & Gibson)

MR P.R. MacLIVER:   May it please the Court, I appear for the respondent.  (instructed by the Australian Government Solicitor)

GUMMOW J:   What is the current position with these deportation proceedings?  Can you tell us?

MR RITTER:   Yes, the applicant’s visa has been cancelled, but he does at the moment, as I understand it, have a bridging visa.

GUMMOW J:   Yes, and there is an extradition application by the United Kingdom.  What is happening with that?

MR RITTER:   Yes, as I understand that, the Australian Government has decided not to accede to that extradition application.

GUMMOW J:   I see.

MR RITTER:   That, as I understand it, was by a decision of the Minister.

GUMMOW J:   Yes, thank you.  Is that so, Mr MacLiver?

MR MacLIVER:   Yes, I believe that is the case, your Honour.  Yes.

GUMMOW J:   Thank you.  Yes, Mr Ritter.

MR RITTER:   Yes, may it please the Court.  The application for special leave primarily raises two issues arising from the judgment of the Full Court.  The first of those is the circumstances in which a Commonwealth Minister will be granted leave to raise on appeal an issue not raised at first instance and which was contradictory to his prior representations and conduct and the second relates to whether, if the Full Court was not in error in granting leave, it was in error in deciding the first notice of intention to cancel the applicant’s visa was invalid or was not properly characterised as a notice under section 107 of the Migration Act.

GUMMOW J:   Yes.  Now, does not that put you on the horns of a dilemma which is pointed up, perhaps, at page 101, paragraphs 13 and 14 as to the relationship of the first to the second notice, the net effect of which is, whichever way you turn, you are in trouble?

MR RITTER:   We submit, no, because the issues follow these sequences, in our submission, that, firstly, the question of whether leave was properly granted needs to be determined.  If leave was properly granted, we say that the Full Court was in error in ‑ ‑ ‑

GUMMOW J:   Well, that is a procedural question and whilst it is true that public bodies have particular responsibilities in the conduct of litigation, nevertheless, there are duties also to see that the relevant legislation is duly administered.

MR RITTER:   That is so.  What we say is that ‑ ‑ ‑

GUMMOW J:   And if that involves taking some point at appellate level that was not taken at the first level, that is, perhaps, a point to be taken into account when granting leave, but it does not really say it is wrong to seek the leave from the court and it is then for the court to take a view of the matter.

MR RITTER:   What we say in answer to that is that in looking at the matter the court excluded some relevant considerations in the mix of factors that it needed to look at.

GUMMOW J:   Then it comes down to the question of the exercise of a particular discretion in a particular case and that ordinarily would not be a special leave point.

MR RITTER:   That is so, but what we say is that those particular matters bring with them the conduct of the Commonwealth Minister and the role of the model litigant and so it is not merely a matter as to the exercise of discretion, but it is as to, in looking at the exercise of that discretion, whether important matters of principle were omitted.

In following through that sequence, then, we say the first point is the leave point and then the second point is whether the first notice was properly characterised as invalid and if the court was wrong with that, that left, at this stage, undisturbed Justice Nicholson’s view about the second notice and that we would urge, if leave were granted, the High Court to adopt that.

GUMMOW J:   Is there anything in Bhardwaj that touches this, in the reasoning in Bhardwaj?

MR RITTER:   Not specifically, your Honours.  As you know, factually, Bhardwaj is somewhat different because it concerns the proceedings of the Immigration Review Tribunal and not an administrative action such as the issue of a notice under section 107.  What Bhardwaj, we would submit, in effect, decides is that if a first administrative decision lacks jurisdiction, then there is nothing to prevent a body like the IRT from correcting that and fulfilling its duty to make a decision.  We say that that is not this particular case.

KIRBY J:   That is on an assumption that the first decision was invalid for all purposes, is it not?

MR RITTER:   Correct.

KIRBY J:   Why does that not apply in this case then?

MR RITTER:   We say that the first notice issue was not invalid for all purposes.

KIRBY J:   That is why Bhardwaj was drawn to your attention.  What is the point of distinction?  Both are administrative donees of power, so what is the point of distinction in this case?

MR RITTER:   The point of distinction in this case is twofold.  Firstly, it involves the actions of the Minister as opposed to a tribunal, but more importantly, it involves the issue of a statutory ‑ ‑ ‑

KIRBY J:   That would not matter, does it?  That is not a relevant point of difference.  They are both receptacles of statutory power.

MR RITTER:   Yes.

GUMMOW J:   That is right, is it not?  It is a distinction without a difference, I think.

MR RITTER:   All right.  Well, we say what the distinction ‑ ‑ ‑

KIRBY J:   What is your second one?

MR RITTER:   The second one, and more fundamental, is that here we have involved the construction of section 107 of the Act and the question of whether the correct approach of construction was adopted in looking at the phrase “particulars of non‑compliance” within section 107A and that there is, therefore, a particular and different point about this case from Bhardwaj, particularly ‑ ‑ ‑

KIRBY J:   The Minister was relying on his own failure to give particulars to suggest that his first notice was invalid for all purposes.

MR RITTER:   Yes.

KIRBY J:   I mean there seems to have been a certain, shall we say, vigour in pursuing your client.

MR RITTER:   There certainly is, to the extent that the Minister, in the corporate sense, at least, has involved twists and turns in the way in which he has approached my client.  What we say is that those twists and turns ought to have properly been taken into account by the Full Court in consideration of the leave question. 

GUMMOW J:   Well, yes.  I thought we had passed on from the leave question.

KIRBY J:   It is very hard to ask us to review a Full Court’s decision to grant leave or not.  I mean, we just cannot be doing that.  You may have your sense of disquiet about it but it is the ultra‑discretionary decision just as we are now being involved in it ourselves.

MR RITTER:   Yes.  If I could just complete my submissions on that point, it would be that the fundamental point here is whether the role of the Minister as a model litigant and the twists and turns that we have discussed make some change to whether it is just a discretionary decision or whether there is some point of principle at issue in the matter.

KIRBY J:   Has this Court ever said – I mean I know that we expect the Crown in criminal cases to be a model litigant and, with respect, the Crown normally is, but has this Court ever said that the Minister must be a model litigant?  I have seen lots of evidence to the contrary over the years.  Ministers in federal and State, all parties, all points of view – some of them seem to err and stray from the path of model litigants.

MR RITTER:   Well, certainly the Attorney himself in issuing the model litigant direction has said so.

KIRBY J:   I think there are a lot of things said in the old days about Attorneys‑General that do not apply any more and this Court has said that.

MR RITTER:   Yes, but it also, in that direction, has cited previous High Court authority, and in looking at the direction at page 51 of the applicant’s materials it refers to Melbourne Steamship Limited v Moorhead (1912) 15 CLR 133.

KIRBY J:   That is a long while ago, Mr Ritter.

MR RITTER:   It is a long while ago.  Certainly, the Federal Court has more recently emphasised the point and has done so in cases which we refer to in our outline of authorities, including, what we would say is a particularly relevant point here, that the Commonwealth should not take advantage of their own defects in the course of litigation.  We say there is a classic case of that here where they are trying to say because we made substantial errors in the issue of the first notice, we can now rely on that for the first time on appeal and say it is not valid.

KIRBY J:   Well, it is worse than that.  It is you having shown the defects of our second notice, we suddenly remember that we made terrible mistakes in our first notice and, therefore, we are going to rely on them.

MR RITTER:   Precisely.

KIRBY J:   I mean that is what gave me the sense of disquiet that I earlier mentioned.  It certainly is not a model litigant and it is, at least, potentially a little bit oppressive to an ordinary citizen facing all the power of the Commonwealth to have the Minister do this.  That is your first point, but unfortunately it is a point that goes to the leave issue and one feels disquiet about reopening the leave question.

MR RITTER:   Yes, which is why we also emphasise the substantive issue as to whether the first notice was invalid and whether the court approached that in the correct way.  We say that the court ought to have looked at it from the perspective of what was the purpose in providing the particulars of non‑compliance within the construction of the Migration Act.

GUMMOW J:   Are you saying the first notice was valid?

MR RITTER:   We are saying that it was not invalid, or at least the purpose is ‑ ‑ ‑

GUMMOW J:   You cannot say that.  It is like the curate’s egg.  It is either valid or invalid.  There are some absolutes in life, and that is one of them.

MR RITTER:   Well, we say then it was valid.  If we are forced to choose ‑ ‑ ‑

GUMMOW J:   Yes, choose now.

MR RITTER:   ‑ ‑ ‑ we say it is valid.

GUMMOW J:   Yes.

MR RITTER:   But we would say that the important thing is that ‑ ‑ ‑

GUMMOW J:   But you are shifting ground, too.

MR RITTER:   No, with respect, we have not argued in these proceedings that it was invalid.

KIRBY J:   You are going with the flow.  That is what you would say.  But what is the consequence of its being valid for you?  Do you win the battle, but lose the war?

MR RITTER:   No, we win the war as well.

KIRBY J:   Why?

MR RITTER:   We say that you cannot issue a second notice based on the same facts and circumstances as a first notice when there has been, in particular, no decision made with respect to the first notice.

KIRBY J:   But is not the first notice fatal for you?  Is not the first notice enough to have you removed?

MR RITTER:   We would say, no, for two reasons.  Firstly, there has been no decision made on the first notice.  We would say now if there was an attempt to make a decision on the first notice, it would be invalid because there has been no decision made within a reasonable time of the issue of the first notice and that is because now it was issued in September 1994 and we are now many years down the track.

KIRBY J:   Is there a requirement in the statute to make the decision within a reasonable time or you import that, there being no time limit in the statute?

MR RITTER:   The latter, your Honour.

KIRBY J:   Yes.

MR RITTER:   That proposition appeared to be accepted by counsel for the Minister at first instance.

KIRBY J:   Has that issue been determined by the Federal Court, or not?

MR RITTER:   No.

KIRBY J:   So your case would be your latter‑day attempt to rely on the invalidity of your own action in your first decision, having faced the problem of your second, fails; therefore, you are fixed with your first and you did not act on the first within a reasonable time, therefore, you cannot act on it now and, therefore, we win though the Minister could then give a fresh notice and you would then be facing a fresh decision on a fresh notice, would you not?

MR RITTER:   Our submission would be the Minister could only do that if there was another instance of non‑compliance.  We would say that now the Minister cannot issue a third notice which relies on the same facts and circumstances as the first notice and the second notice.

KIRBY J:   Well, that is your case, is it not?  It is either good or bad.

MR RITTER:   That is our case.

KIRBY J:   Yes, all right.

MR RITTER:   Yes.

GUMMOW J:   Yes, is there anything more you want to say?

MR RITTER:   No, if the Court wants to hear from Mr MacLiver, perhaps I will save it at this stage.

GUMMOW J:   Yes.  Yes, Mr MacLiver.

MR MacLIVER:   Yes, thank you, your Honour.

KIRBY J:   Do you accept that you have to be a model litigant, or can you just be down there in the scrum with the rest of them?

MR MacLIVER:   No, your Honour, we would accept that the Minister should be a model litigant.

KIRBY J:   It is an odd thing that now you are coming back after all this time, having supported your first notice and failing there, now to say that the first notice is invalid for your own defaults.

MR MacLIVER:   It is unusual, your Honour.

KIRBY J:   It certainly is.

MR MacLIVER:   There is no doubt about it but, with respect, supposing, for example, that the Minister had not issued the second notice but had made its decision as it did and then the applicant then sought to review that decision on the basis that the first notice was not a valid notice because, he being a person to whom subsection 115(3) applies, the notice could only address matters dealing with the former section 20, that is, matters that were false in a material particular.  As their Honours on the Court of Appeal found, the provisions in 101, 103 and 104 were considerably wider than the old section 20 and, your Honours, with respect, we would submit that if no second notice had been issued and the applicant had chosen to attack the decision on the basis that the first notice was invalid, he would clearly have succeeded.

GUMMOW J:   That is his problem, is it not?

MR MacLIVER:   Yes.

KIRBY J:   Yes, but the argument now is that you have to rely on the invalidity of the first notice and that you would be out of time for any decision based upon that notice if it is valid.

MR MacLIVER:   Yes.  I note my learned friend’s submissions in that regard.  However, your Honour, it was ‑ ‑ ‑

GUMMOW J:   You do not assert that it is valid, do you?

MR MacLIVER:   What is that, your Honour?

GUMMOW J:   The first notice.

MR MacLIVER:   No, we assert that it was invalid.

GUMMOW J:   You are not going to be taking any action on the first notice.

MR MacLIVER:   Yes, but at the appeal stage, your Honour, there was a ground of appeal – and this appears at page 48 of the application book – the final ground of appeal which was:

Further or alternatively, if the Second Notice was invalid –

in other words, if the first notice was valid –

his Honour should have held that the decision of the appellant’s delegate to cancel the respondent’s visa was validly made pursuant to the First Notice.

That was a matter that the court, on appeal, did not deal with because it, of course, did not have to because it found that the first notice was invalid, but certainly it was a ground put that if the second notice was invalid and the first notice was valid, then there was a decision made to cancel the visa and that was a valid decision pursuant to the first notice.

GUMMOW J:   Yes.  These notice provisions in this Act are giving rise to endless litigation arising from unfortunate oversights in administration, I am afraid, but anyhow, there we are.  Yes.

MR MacLIVER:   And, your Honours, of course, the decision of the Court of Appeal was prior to the decision of this Court in Bhardwaj and we would submit that the decision of this Court in Bhardwaj lends support to the respondent’s submission that the Full Court on appeal was correct in its decision holding that the first notice was invalid and, therefore, administratively there was nothing to prevent – in fact, it was a proper action on the part of the respondent to issue the second notice which it did properly referring to the matters which the respondent says breached the former section 20.  We would say that that course of action is clearly supported in principle by the decision in Bhardwaj.  If it please, your Honour, those are my submissions.

GUMMOW J:   Yes, thank you, Mr MacLiver.  Yes, Mr Ritter.

MR RITTER:   Your Honours, could I emphasise a couple of matters in reply.  Firstly, my learned friend has referred to the fact that the first notice was said by the Full Court not to relate to the former section 20 of the Act.  We would say that the correct notice of the former section 20 requirements were given within the first notice because the factual particulars of incorrectness were drawn to the applicant’s attention and it was asserted that it was false that the incorrect answers were material because they all related to his prior employment. 

So we would say that, in effect, the requirements of section 20 with respect to those incorrect matters and the materiality of them and also with respect to bogus documents was drawn to the applicant’s attention. We would say, therefore, that what the court did not do was to analyse whether particulars were required from the point of view of what was the purpose of the issue of the first notice and was that purpose satisfied by the information that was given.

We would also say in answer to my learned friend’s point about whether the court could have found that a valid decision was ultimately made on the first notice, we say, with respect, that does not arise because plainly the decision to cancel purported to rely on the second notice and as a matter of fact there was no decision to cancel based on the first notice.

KIRBY J:   No, this was the horns of the dilemma for the Minister.  He had to get rid of the first notice and, therefore, he relied on his own invalidity in making it invalidly.  You say it is valid and, therefore, he is fixed with its consequences.  I think we understand that, but the problem is that all of those questions really arise at the point of whether you will give leave to allow the Minister to argue these points in the Federal Court and, unfortunately for you, the Federal Court gave that leave and that is very much a discretionary decision of practice which would be very rare for this Court to embark upon.

MR RITTER:   We say, though, that independent to that, there is a special leave arguable point about the construction of section 107 and the other sections of the Migration Act which goes beyond the relevance for this case but can have relevance to the other cases which deal with those particular sections of the Migration Act.  If it please the Court, they are our submissions.

GUMMOW J:   Yes.  Well, we hope to see you again, Mr Ritter, but it will not be in this matter, I am afraid.

Despite the persuasive way in which Mr Ritter put the case for the applicant, this Court could not, in the circumstances, enter upon the question of whether the Full Court of the Federal Court of Australia should have given leave to the Minister to appeal to that court.  Once that point is passed, it is not, in our view, demonstrated that the Full Court erred in the ultimate conclusion that it reached.  Accordingly, the application is refused.

Were costs sought?

MR RITTER:   I understand costs have been sought and there is no submission that I can make about that.

GUMMOW J:   Yes.  Refused with costs.

AT 12.07 PM THE MATTER WAS CONCLUDED