MIMIA v Nystrom

[2005] HCATrans 1045

[2005] HCATrans 1045

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M95 of 2005

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Applicant

and

STEFAN NYSTROM

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 DECEMBER 2005, AT 11.02 AM

Copyright in the High Court of Australia

MR A.L. CAVANOUGH, QC:  If the Court pleases, I appear with my learned friend, MR S.P. DONAGHUE, on behalf of the applicant Minister.  (instructed by Australian Government Solicitor)

MS L.G. DE FERRARI:   If the Court pleases, I appear for the respondent.  (instructed by Victoria Legal Aid)

HAYNE J:   As Justice McHugh has been heard to say, Ms De Ferrari, do not sit down yet.  We might be assisted by hearing from you first.

MS DE FERRARI:   Yes, your Honour.  Your Honour, in respect of the first and second question, the respondent submits that what the majority decided was an application of the principle in Peko-Wallsend.  They did that by an analysis of section 34, section 501 and section 501F(3) of the Act.  It is not suggested that Justice Emmett in dissent applied any different principle.  The issue is simply one whether the application of that principle to these particular facts is something that raises a special question for this Court.

HAYNE J:   Does the majority opinion depend in any relevant respect upon applying notions of absorption to what is an aliens power question rather than an immigration power question?

MS DE FERRARI:   No, your Honour, they do not.  They look at the nature of the visa in question.  Now, the visa was enacted on that basis because of questions about absorbed person status that have been known to this Court for many, many years.  But that is a statutory visa, and the majority’s decision depended on the fact that that statutory visa that was provided for in the Act, and whether that was intended to be cancelled by section 501 or whether it would be the machinery provision, if I can put it that way, in section 501(3) that would cancel that visa.  It was irrelevant for consideration for the Minister to consider the existence of that visa and the fact that that visa would be cancelled by the decision she was making.

Your Honour, that was the basis on which the majority decided, and that was the sole basis on which the majority, and Justice Emmett in dissent, diverged.  There is no broader issue than that in this case, in my submission.  Everything else that is sought to be agitated by the applicant Minister goes to matters that were obiter dicta by the majority.

In respect of what is said about section 201 or, if I can put it more broadly, Division 9 of Part 2, as their Honours themselves noted, it was not the subject of argument in the courts below.  It was an observation that they made.  It was purely in the nature of obiter dicta ‑ ‑ ‑

HAYNE J:   What is put as proposed ground 4 in the Minister’s draft notice may raise very separate questions, Ms De Ferrari.  For the moment I think if you leave aside from consideration draft ground 4, which seems to be an attempt to appeal against reasons rather than orders, and if you were to focus on the substance of the questions rather than the manner of expression of the reasons which is agitated by that proposed ground.

MS DE FERRARI:   Yes, your Honour.  I believe that in respect of the operation of Division 9 of Part 2 that is intended to be encapsulated in proposed ground 3, that is the Full Court erred in holding that the cancellation power is unavailable or restricted in cases of criminal conduct of people who, like the respondent, have been in Australia for such a long time.  In that respect, your Honours, my submission is it is clearly obiter dicta by the court, and if the ‑ ‑ ‑

HAYNE J:   If leave were to be granted and ground 3 were to be pressed, would that raise any question requiring service of 78Bs?  That is, would it engage any of the debates that were more than touched on in Patterson, at least in the joint judgment of Justice Gummow and I, at 207 CLR 391, particularly 472 and 473 where we referred to the difficulty about application of notions of absorption in connection with the aliens power. Does ground 3 raise those issues?

MS DE FERRARI:   In my submission, no, your Honour, for this reason.  What their Honours were concerned there by way of obiter was the fact that one applies a well-recognised principle of statutory construction, namely that if the powers in that division are not applicable, in this case to the applicant – and may I say at that point that their Honours assumed that they would not be applicable, but another problem with respect to that ground is that there is no finding that they are not applicable, but assuming that those provisions would not be applicable, that is the respondent could not be deported, and deportation is only under those provisions, then one would read the more general provision in section 501 as not intended to overcome the specific provisions that the Parliament had enacted about criminal deportations and, therefore, one would read the specific as prevailing over the general power in section 501.  In my submission, it raises no constitutional issues.  It simply is a question of statutory construction of the Act.  Your Honours, I am mindful your Honours said not to consider ground 4 for the moment ‑ ‑ ‑

HAYNE J:   I think only for myself, Ms De Ferrari, but Mr Cavanough will need to explain to me for my edification why ground 4 is a proper ground of appeal.  Perhaps you might have an opportunity to come to that if later we were to reach that stage.

MS DE FERRARI:   Yes, your Honour.  Well, may I repeat the submission that was made in written submissions, that is that if it is intended as a coy way of making an allegation of bias then it should either be made as an allegation of bias, an actual one and not in this way.  As regards the fact, as is said in the reply, that the Minister would be disobeying the orders of the Federal Court because of what is said in those paragraphs, that the applicant Minister characterises strong views, in my submission, they are obiter.  None of them were expressed as binding on the Minister or, put another way, of saying, “Well, if you find in any way against that then that will be disobeying the orders of the court”.

The remitter to the Minister, which was not an order sought by the respondent for obvious reasons, the respondent thought there was no unperformed duty, but the remitter to the Minister, as is in the orders, must be understood as remitting for consideration according to law the question that was – what was held by the decision, and that is that the Minister erred in not considering the section 34 visa.  That is the extent of which the reasons for decision will be before the Minister.

HAYNE J:   Yes.  Is there anything else you would wish to add, Ms De Ferrari?

MS DE FERRARI:   No, your Honour.

HAYNE J:   Thank you.  Now, Mr Cavanough, at least for my edification, why is ground 4 a proper ground of appeal?  Do you press it?

MR CAVANOUGH:   We do, your Honours, on the basis that there was an order that the matter be remitted to the Minister who determined ‑ ‑ ‑

HAYNE J:   Under what power was that made?  These were 39B proceedings, were they not?

MR CAVANOUGH:   Yes, they were.

HAYNE J:   What is the order?  What is the power to remit?

MR CAVANOUGH:   Yes, that language certainly is the language of the AD(JR) Act and the like which does not obviously appear in 39B, but nonetheless it was in the nature I suppose of a direction, an injunction of the court to determine the matter in accordance with the reasons for decision ‑ ‑ ‑

HAYNE J:   Well, what is it?  The Minister, I know, lost below.  The Minister has some role to play in at least identifying what orders are properly to be made.  Be that as it may, you seek leave to appeal.  Why is ground 4 a proper ground?  Why is it not just either a jury point or an appeal against reasons?

MR CAVANOUGH:   Well, the way we put it, your Honour, is that in the light of the order that was in fact made, rightly or wrongly, with or without power, the order in the normal course would be interpreted as requiring that the matter be redetermined in accordance with the reasons for decision of the court and that would mean in accordance with the various statements, which we identify in our reply as bearing upon what ought to happen on return – those statements having been made, if you like, in respect of an issue which was actually not advanced but an issue that the court specified as to whether remittal would be futile, whether there was any point in granting relief.

In respect of that issue that the court raised, these observations were made.  So it goes directly.  The court was really telling the Minister not only is this not futile for you to reconsider, but when it does come to be reconsidered these are matters that you must bear in mind.

HAYNE J:   Again that raises the base question of what is the power of the court?  The power of the court, relevantly, seemed to be invoked, 39B of the Judiciary Act, to grant relief of the kind found in 75(v).  Is this an order in the nature of mandamus?  What is it?

MR CAVANOUGH:   Yes, it is an order in the nature of mandamus, in my submission, to that extent.

HAYNE J:   Well, mandamus is to determine according to law.

MR CAVANOUGH:   Yes, indeed, your Honour.

HAYNE J:   Is there anything more you want to say about ground 4?

MR CAVANOUGH:   No, your Honour.

HAYNE J:   Just one further matter, Mr Cavanough.  Do you see any issue of validity or any issue calling for the service of 78Bs arising?

MR CAVANOUGH:   No, your Honour, in ‑ ‑ ‑

HAYNE J:   Very well, but parties will no doubt have given close attention to that and not come upon the matter lately discovered on the morning of the hearing.

MR CAVANOUGH:   Understood, your Honour.

HAYNE J:   There will be a grant of leave in the matter – I am sorry, do you want to be – yes, Ms De Ferrari?

MS DE FERRARI:   If the Court would indulge me?  Your Honour asked me about the question of 78B notices in respect of section 201.  The Court would be aware that there were two arguments that were put in both courts below which were never addressed.  It may be that the question of the immigration power with regard to absorbed persons would require that notice in respect of the first ground that was raised, that is the entry permit ceased to be of any ‑ ‑ ‑

HAYNE J:   That would seem to be notice of contention territory, Ms De Ferrari.

MS DE FERRARI:   It would be.

HAYNE J:   If a notice of contention is to be filed it should be filed promptly.

MS DE FERRARI:   Yes, your Honour.

HAYNE J:   But also your side should give close attention to whether that provokes a 78B question.

MS DE FERRARI:   Yes, your Honour.  Your Honour, may I also ask for a special order as to costs, as for paragraph 19 of our submissions.

HAYNE J:   Yes.  What do you say, Mr Cavanough?  This is a matter of general application, is it not?

MR CAVANOUGH:   Yes I have instructions to agree to an order that the orders for costs below not be disturbed as a condition, and indeed that the Minister would be prepared to pay the reasonable costs of the respondent of the appeal in any event.

HAYNE J:   Well, upon condition that the orders for costs made below are not disturbed and the further condition that the Minister agrees to pay the reasonable costs of the respondent of and incidental to the appeal, there will be a grant of special leave confined to grounds to the substance or effect of grounds 1, 2 and 3 of the draft notice of appeal contained with the application book.  As things stand, would counsel agree that it is a one day case?

MR CAVANOUGH:   Yes, your Honour.

MS DE FERRARI:   Yes, your Honour.

HAYNE J:   It will be noted as that.  The Court will adjourn to reconstitute.

AT 11.17 AM THE MATTER WAS CONCLUDED