MIAC v SZLFX; MIAC v SZKTI & Anor

[2008] HCATrans 389

[2008] HCATrans 389

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S341 of 2008

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Applicant

and

SZLFX

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Office of the Registry
  Sydney  No S309 of 2008

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Applicant

and

SZKTI

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Applications for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 2008, AT 2.39 PM

Copyright in the High Court of Australia

__________________

MR S.B. LLOYD, SC:   May it please the Court, I appear in both matters with my learned friend, MR G.T. JOHNSON.  (instructed by Sparke Helmore Lawyers and DLA Phillips Fox Lawyers)

MR G.C. LINDSAY, SC:   May it please the court, on the first of the two matters I appear with MR L.J. KARP, for the first respondent.  (instructed by Christopher Levingston & Associates)

MR R.P.L. LANCASTER:   May it please the Court, I appear with MR S.J. FREE for the first respondent in the second matter.  (instructed by Gilbert & Tobin Lawyers)

GUMMOW J:   There is a submitting appearance for the Tribunal, which is the second respondent in each application.  Yes, Mr Lloyd.

MR LLOYD:   May it please the Court.  Central to both judgments in these cases is the construction of section 424 of the Migration Act.  The Full Court in SZLFX approved and applied the reasons of the Full Court in SZKTI.  In SZKTI the court considered that the Minister had failed to provide – as their Honours put it – any plausible alternative legal meaning to section 424.  I propose to begin to go to the heart of the issue and advance what we say is the correct construction of section 424, which we say is not only plausible, but preferable having regard to the ‑ ‑ ‑

KIRBY J:   You read an affidavit of Wan Shum affirmed 19 September 2008?

MR LLOYD:   I do, your Honour, and also there is another affidavit as well.

KIRBY J:   Juliet Carrington, sworn 14 October 2008.

MR LLOYD:    In both matters.

GUMMOW J:   This is designed to show ‑ ‑ ‑

KIRBY J:   Lots of affectation.

GUMMOW J:   Yes.

MR LLOYD:   Well, it shows at least that there are dozens of cases currently that are known to be affected and potentially a great deal more, given that this is an area where people backdate, as it were, emerge again and we suspect there will be many cases where someone will say, “In my case the Tribunal asked someone for some information some years ago and they did not do that”.  So it affects at least dozens of cases and potentially a higher ‑ ‑ ‑

KIRBY J:   I think I read that you agreed to pay the costs of the respondents, whatever the outcome, and in one you said you would not seek to disturb the orders for costs in their favour below.  Is that a common situation that you will ‑ ‑ ‑

MR LLOYD:   I believe it is common to both of the matters.

GUMMOW J:   Well, it is page 91 in application 309 and 77 in the other one.  Justice Kirby is right, though, is he not?  Page 77 is not the same terms as 91?

KIRBY J:   We have to watch the Commonwealth on these things.

MR LLOYD:   Page 68 at about line 38. 

GUMMOW J:   Yes, so there is a consistency between 68 and 77.  Anyhow, you say page 68 controls?

MR LLOYD:   Well, I think page 77 is the respondent’s summary of argument, not our summary of argument.

GUMMOW J:   I am sorry, you are quite right. 

KIRBY J:   But the theme of this is sort of just a procedural type of decision and it is a minutia, if ever there was one, in the Act.  Why should we not just let the court that normally has the last word on these things, the Federal Court of Australia, determine this matter?  It has determined it, it has been affirmed by a second Full Court and they had the power to vary it if they do not agree.  They did not.  They said it was right as far as they were concerned and then if your client – the Minister – does not like it he can seek to have the matter corrected in the Parliament.

MR LLOYD:   Well, your Honour ‑ ‑ ‑

KIRBY J:   The Court has so much to do, Mr Lloyd.  I feel very sorry for the colleagues I am leaving behind - all these burdens.

MR LLOYD:   Well, your Honour, any change of the law would not be able to deal with the question of the other cases which are covered by the same problem and the potential many more cases.  I think Mr Wan’s affidavit suggested just in one random week there were three cases and given that these cases go back potentially many years - on Monday I have an appeal, your Honour, where the person is challenging a decision from 1999.  There was a seven‑year delay and the case is about – there is a jurisdictional error and the question is whether or not a seven‑year delay is too long.

These matters potentially, especially because this is such a commonplace occurrence for the Tribunal to ask a person for information it is critical to that, and also critical on an ongoing basis, your Honour, because the Tribunal – especially the Refugee Review Tribunal – has been set at least a target of making decisions in 90 days, having this kind of requirement where it has to send out these notices which have to provide a certain amount of time for what, in many cases, are very trivial.  I am not saying they necessarily are in these cases, but in many cases they are very trivial inquiries.

KIRBY J:   Very fact detailed cases and I suppose you can say that this is a tribunal, it is not a court and this is a very sensible type of procedure, expedites the proceedings and has the determination made quickly which is in the interests of both the applicant and the community.  The only question is whether what the Full Court has said is wrong.

MR LLOYD:   Indeed.  I do say that, your Honour, and I accept that if the Court today does not think that the construction of 424 we advance is plausible then the result is clear, but if ‑ ‑ ‑

KIRBY J:   Well, it needs to be more than plausible.  You have to show a case of arguable error.

MR LLOYD:   Indeed, I hope to persuade the Court that it is in fact wrong, but I do not have to get that high.  It has to be reasonably arguable and in my submission it is well more than reasonably arguable.

HEYDON J:   You draw a distinction between what I might call a formal invitation that falls within subsection (2) and something less formal which is permissible under section 424(1).  What is the difference in principle?

MR LLOYD:   If I can put the Minister’s construction in this way, your Honour.  The Minister contends that section 424 is just one of several provisions that confer power to obtain information.  Under section 424(1) there is a general power which is, we say, unconfined both as to the nature of information and as to the means of information; as to the means or methods of how you get it.

Subsection (2) provides one particular method, a formal invitation method and the importance of that – and this is clear from, in particular, the second reading speech – that this is a mechanism that was brought in in 1999 to allow the Tribunal to send out a formal notice which says, “We want this information and” in substance “if you do not respond within time you could lose your hearing”. 

So the purpose of that legislation was designed to encourage early provision of information for efficient work within the Tribunal so that it could all move on quickly and that is what – and I will take the Court to this shortly – the Minister said in the second reading speech at the time.

So to answer your Honour’s question, the point we get from “invite” is that the word to “get” is very broad.  Invite is just one method and it is a method which is directed towards the consequences of non‑response, which is clear from section 424C in combination with 425(2)(c).  If you do not respond – at least if an applicant does not respond – to an invitation within time, the Tribunal is authorised to make a decision without taking any further steps to get that information.  Also, the applicant loses a right to a hearing.  So that was, in our submission, why it was brought in.  It was an additional step. 

Now, one area we say the decision of the Full Court has it wrong is they have failed to appreciate that there are these other powers of obtaining information and that the legislative history shows that – and I should say two decisions of this Court - the decision of SAAP, your Honour Justice Gummow went through the history of sections 424, 424A, 424B and noted that they work simultaneously with the powers that the Tribunal also has, simultaneously the powers under section 56 of the Act to obtain information.  Those powers under section 56 of the Act are not constrained in the same way as the power in section 424(2). 

In fact, section 59(2) of the Act more or less in terms says when the Minister invites someone – well, it says there is a mechanism, I should say, under section 56(2) for the Minister to invite someone to an interview.  That is in a context where there is no necessary hearing at that primary stage.  Section 59(2) makes it clear, however, that the existence of that formal process at that stage does not preclude the Minister from just obtaining information.  It goes back to a general word like “obtain” ‑ ‑ ‑

GUMMOW J:   Section 424(1) has two elements to it.  The first element I would have thought is no more than a statement of the common law where the Executive can ask anybody anything.  They do not need to tell them, but they can be asked.  But the bite in 424(1) is the second sentence: 

if the Tribunal gets such information, the Tribunal must have regard to that -

Then on top of that you say there is the formality requirement which can have adverse consequences for those appearing before the Tribunal if there is no response to the formal invitation.

MR LLOYD:   That is so, but perhaps I should have said that critical to our construction are the words at the beginning of subsection (2) “Without limiting” the first.  So you have this very general power.  We would say if you put aside subsection (2) then the general power would allow you to ask anyone anything by any method.  Subsection (2) as construed by the courts below limits the means by which you can do that and we say that that is a limitation.  On our construction there is, in fact, no limitation.  It is just a tool which allows you to engage the consequences of 424C and 425(2)(c).

At the same time the Tribunal is able to seek information not by using the formal invitation technique and if it does so then the potential adverse consequences to an applicant are not engaged.  So we would say the consequence of someone that is say endeavouring to engage section 424(2), but failing for some reason to comply with one of the formal requirements, is that the Tribunal would not be empowered to remove the person’s hearing.

If they purported to make a decision without giving the person a hearing in those circumstances there would then be a jurisdictional error.  But if the person as in these two cases got a hearing and other requirements were met then there is, in my submission, no error and that that construction is one which accords with the language of “Without limiting” in section 424.  It accords with and gives meaning to the differences between the broad concept of getting information as opposed to the more formal process of inviting information.

It recognises the structure - which not only did your Honour Justice Gummow say it in SAAP, but in the Full Court in NAFF indicated that there is a range of the powers under section 56 to obtain information all available to the Tribunal as well.  It shows that section 424(2) is simply an additional mechanism which has specific consequences.  The consequences are in terms of those laid out in section 424C and 425(2)(c).

Our construction is also consistent with the legislative history in that prior to these provisions coming in the situation was the Tribunal had no power to just go off and get information by itself because it was expressly limited to matters on the papers that were provided under section 418 and 423, but that was ‑ ‑ ‑

GUMMOW J:   This point seems to have emerged in the Full Court, did it?  I am looking at page 55 of S309.

MR LLOYD:   Page 55?

GUMMOW J:   Yes, in S309, paragraph 4 of the judgment.

MR LLOYD:   His Honour Justice Rares considered the idea and then referred it to an Order 80 referral.  So one sees at that time in 1998 a situation where previously there was no – or at least the Tribunal’s power to obtain information was limited to a review of certain papers and then there was an amendment which conferred the general power in 424(1) and an ability to get information and with the specific intention of having this mechanism of efficiency to bring forward decisions if there is non‑response. 

If I can just hand up the second reading speech to your Honour and over on the second page of the second reading speech in the second column there is a paragraph which begins – the third paragraph down:

The bill also includes certain safeguards for applicants by introducing a code of procedure for both the Migration Review Tribunal and the Refugee Review Tribunal which is similar to that already applying to decisions made by the department.  This code includes such matters as the giving of prescribed notice of the timing for a hearing –

that is at section 425 and related sections –

and a requirement that applicants be given access to, and time to comment on, adverse material relevant to them.

That is section 424A –

In addition, the bill contains a number of measures to allow for more flexible processes -

So this was the intention of Parliament or at least of the government accepted by Parliament –

in both tribunals.  These include:

.enabling the tribunals to use telephone or other media to conduct personal hearings or to require other witnesses to appear before them; and

.allowing tribunals to proceed to a decision without delay, if an applicant does not respond to a notice to attend a hearing or provide comment.

Now that, we say, is the main function of the 424(2) and (3) and 424B procedures.  It is to provide a mechanism for a quick decision if the applicant is not even responding to requests for information.

GUMMOW J:   Yes, Mr Lloyd, we will be helped at this stage if we hear from one or other of your opponents.

MR LLOYD:   Thank you, your Honour.

MR LINDSAY:  In our submission, the short point is whether the reasoning of the Full Court in the other case - the SZKTI Case – paragraphs 43 and 47 are or ought to be reviewed by the Court.  In our submission in circumstances where some nine judges of the Federal Court have come to the same view or substantially the same view the Court could have confidence that there is no need for this Court to ‑ ‑ ‑

KIRBY J:   But the Minister has shown by the affidavits that have been read without apparent objection that there is significant inconvenience in undoing, unscrambling the eggs that have already been put on the table.  It is easy for courts to say well they can amend the Act if they want to and it is often not quite so easy.  The proposition which is advanced for the Minister does have an attraction of a certain simplicity and informality in the procedures of the Tribunal which might help to remove the sort of delays that we often see in this Court that have attended these proceedings and, fourthly, they have offered to pay your costs and not to disturb the proceedings below.  I think it is very ungracious that you are resisting coming up to the High Court for a pleasant day in Canberra in the autumn.  Well, you had better go back to construing the section.

MR LINDSAY:   Well, I was not sure whether some response was necessary or appropriate, but in our submission at the end of the day it does come back to a matter of construction.  The construction that is advanced by the Minister sets at nought the word “must” in subsection (3) and in our submission that is a significant factor.  There are really three points if you like that emerge for consideration on construction.  One is what is intended by the word “must” in subsection (3).  The Minister’s construction really just circumvents that altogether.  The second point is whether there is any particular significance in the words “Without limiting” the generality of subsection (1) that appear in subsection (2).  In our submission subsection (2) does not limit subsection (1).  It does not limit the capacity of the Tribunal to get relevant information.  It provides for or governs the means by which information may be obtained.

GUMMOW J:   Subsection (3) is a method of service provision, is it not?

MR LINDSAY:   Yes, but subsection (3) ties in with subsection (2).  Subsection (2) says that “the Tribunal may invite” and then if there is to be ‑ ‑ ‑

GUMMOW J:   And if so, there is a prescribed method of service which has two possibilities.

MR LINDSAY:   The subsection (2), if it is invoked, has to be exercised in a particular way and that particular way is governed by subsection (3).  But the Minister’s case is that even though something in the nature of imperative language is used there it can circumvent the subsection entirely and set it at nought, and that is what we are submitting in relation to that.  The point of difference between us if one is just looking at this particular section is that we submit that subsection (1) is directed to the getting of information that the Tribunal considers relevant.  That is what my friend describes as subject matter.  But the way my friend, if you like, imports a

conflict between subsection (1) and subsection (2) is that he submits that subsection (1) speaks both to subject matter and to means.

This has been considered by the Federal Court in the three cases to which reference has been made and in our submission the reasoning which one finds in paragraph 43 of the first of the decisions is correct.  The reason why that is correct, in our submission, is aided by what appears in paragraph 47 of that judgment because on my friend’s construction of the section it would be possible for the Minister to engage in what might be called “cold calling” of evidence where somebody without any warning is simply called up and asked for information and not given any background. 

The purpose, in our submission, of the section and in particular subsections (2) and (3) is to ensure that if there is to be any calling up of a prospective witness it is done in some formal way with a sense of notice, otherwise the process could be abused and be unfair and we submit that the nature of the procedural fairness requirements of the Act are inconsistent with that.  But ultimately one gets back to the view that is taken of about two or three issues.

GUMMOW J:   It would not be fair and just to trap people in the way you are suggesting, would it?

MR LINDSAY:   No, in our submission, it would not.

GUMMOW J:   Well, that would defy section 422B(3).  Why should we construe the Act on the basis that there is a likelihood that the Tribunal will act inconsistently?

MR LLOYD:   I should perhaps make clear, your Honour, that that version of the Act, 422B(3) was not in the Act at that exact point in time of this case, your Honour.

GUMMOW J:   But it is now?

MR LLOYD:   It is now, yes, your Honour.

MR LINDSAY:   I am grateful for that, but the short point really is there are about three or so points on the construction of the particular section.  They have been considered by nine judges of the Federal Court and, in our submission, there is no necessity for this Court to review them.

GUMMOW J:   Mr Lancaster. 

MR LANCASTER:   Thank you, your Honour.  Your Honours, can I make two points in an attempt to make good the proposition that there is not enough arguability in the proper construction of 424(2) to warrant the grant.  The words “Without limiting subsection (1)” in subsection (2), in my submission, simply mean that the general power in subsection (1), namely to “get any information that it considers relevant” is not restricted by the identification in subsection (2) of one specific aspect of that power, namely to “invite a person to give additional information.”

HEYDON J:   If someone rings up the Tribunal that can be very casual and the problems that Mr Lindsay drew attention to in paragraph 47 of the judgment may flow, but if the Tribunal rings up someone, precisely the opposite applies.  It cannot be informal.  It must be under subsection (2) with ‑ ‑ ‑

MR LANCASTER:   Yes, and one can imagine a legislative policy to make good that proposition.  The Full Court in 309 identified circumstances in which the recipient of an unannounced, unnotified mobile telephone call might not be in a position to (a) respond to it immediately, or (b) give proper consideration of the questions that are asked and the information that is being sought.  On the other hand, your Honour Justice Heydon’s other example of somebody who calls the Tribunal, in that situation one can imagine that the caller will have in mind what it is that is going to be said and will have had an opportunity to reflect on it.  It will be information that is inherently more worthwhile or valuable.

But, your Honours, that seems to us to be a classic example of where Anthony Hordern reasoning should apply with subsections (1) and (2).  Subsection (2) is evidently a specific manifestation of the general power in (1) and subsection (2) ‑ ‑ ‑

GUMMOW J:   Yes, is there any reference to Anthony Hordern in the judgment below?

MR LANCASTER:   In the judgment of the Full Court?

GUMMOW J:   Yes.

HEYDON J:   Page 68 in SZKTI.

MR LANCASTER:   Yes, and their Honours in paragraph 42 of application book 68 set out the famous sentence and, your Honours, it seems ‑ ‑ ‑

GUMMOW J:   After our decision in Nystrom?

MR LANCASTER:   Nystrom is not referred to there, but it is after it, yes.

GUMMOW J:   It is, yes, I know it is after it, yes.  All right.

MR LANCASTER:   So, your Honours, we would submit that subsection (3) is clearly a mandatory requirement of the legislature when the subsection (2) procedure is being undertaken, that being a specific example of the general power.  It should not be subverted or put at nought by an exercise of the general power under subsection (1).

The second point I would wish to make, your Honours, is by reference to the decision in Sok v Minister for Immigration (2008) 249 ALR 651 which my learned friend has in his bundle behind tab 3. That was a case concerning the powers of the Migration Review Tribunal. But can I take your Honours to paragraph [33] which refers to section 359, the equivalent provision to 424, but in respect of the Migration Review Tribunal?

In the second sentence in that paragraph your Honours say, “In particular” footnote 27, which I will come back to, “the tribunal may invite a person to give additional information”.  Footnote 27 refers to section 359(2), the opening words of which are precisely the same as 424(2), namely “Without limiting subsection (1)” and a unanimous Full Court of this Court regarded those words as meaning in particular and that would seem to us, with respect, to be consistent with the construction of 424(2) adopted by the Full Court of the Federal Court, namely those words do not mean something to the effect of in addition to the general power there is a particular power to invite that is regulated in a particular way, but rather on the other hand subsection (2) is a particular power that is conditioned in the mandatory way referred to in subsection (3).

GUMMOW J:   What footnote was that?

MR LANCASTER:   That was footnote 27 in paragraph [33].

GUMMOW J:   Thank you.

MR LANCASTER:   My learned friend in his oral submissions appears to accept what we would regard as the two first necessary steps for the Anthony Hordern submission to be made good, namely, there is a general power in subsection (1) in a specific or limited in subsection (2) and having regard to the mandatory terms of subsection (3) we put the proposition that that should not be controverted by a construction that really gives no effect at all to that mandatory requirement in subsection (3) in the circumstances where an invitation is made.  Those are my submissions.

GUMMOW J:   On the condition as to costs, which is specified on page 68 of the application book in S341 and on page 91 of the application book in S309, there will be a grant of special leave in these two matters.  The appeals will be heard together as a one‑day matter.

AT 3.10 PM THE MATTERS WERE CONCLUDED