Min for Imm v Israelian

[2000] HCATrans 31

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M64 of 1999

B e t w e e n -

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Applicant

and

OGANES ISRAELIAN

Respondent

Office of the Registry
  Melbourne  No M132 of 1999

B e t w e e n -

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Applicant

and

FATHIA MOHAMMED YUSUF

Respondent

Applications for special leave to appeal

McHUGH J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 FEBRUARY 2000, AT 12.46 PM

Copyright in the High Court of Australia

______________

MR R.R.S. TRACEY, QC:   If the Court pleases, in each of those matters I appear with my learned friend, MR A.L. CAVANOUGH, QC, for the applicant.  (instructed by the Australian Government Solicitor)

MR B.A. KEON-COHEN, QC:   If the Court pleases, in each of those matters I appear with my learned friend, MR J.A. GIBSON, for the respondent.  (instructed by Armstrong Ross and instructed by Victorian Legal Aid)

McHUGH J:   Yes.

MR TRACEY:   If the Court pleases, what these matters have in common is that they both raise issues of construction under the Migration Act as to the relationship of sections 430 and 476(1)(a).  Each of was ‑ ‑ ‑

KIRBY J:   I suppose this issue is coming up in almost all or at least many cases that are coming before the Federal Court.

MR TRACEY:   It would seem so, your Honour, and you will have seen that the Full Court in Xu adverted to just that.

KIRBY J:   It is not very attractive as a proposition for this Court to accept a view unless it be the proper construction of the statute that would have the inevitable effect

of increasing the burden on this Court, but I suppose you are entitled to say that if that is the will of the Parliament then that is what must be upheld by the law.

MR TRACEY:   Your Honour, in that respect we say this is indistinguishable with the issue that the Court dealt with in Eshetu which related to the interrelationship of section 420 and 476.  The Court recognised the likely consequence for it of a decision consistent with the Minister’s Case but nonetheless held that a proper construction as considered by the Court should prevail and we say that the same applies here.

McHUGH J:   Yes.  Well, I think we might call on Mr Keon‑Cohen first.

MR TRACEY:   If the Court pleases.

McHUGH J:   Yes, Mr Keon‑Cohen.

KIRBY J:   It cannot be disputed, can it?  This is a very important question.  It affects a lot of cases.  It is coming up in many cases in the Federal Court and whether it is right or wrong it is, therefore, something which this Court should pass upon.

MR KEON-COHEN:   If your Honour pleases, I do not dispute that an important issue is raised.  What I do take issue with my learned friend is that there is a legal conflict below that should attract special leave.  The reality of the situation, your Honour, as we now stand here today, as we look at the authorities, is that there are many, many Full Courts leading to the proposition set out in Yusuf, a unanimous judgment by a strong Full Federal Court.  We count 13 Full Court decisions that have come to that view.  We count many, many decisions of single instance justices of the Federal Court that have taken the same view.

Standing against that, your Honour, is the reasoning of two justices, Justices Giles and Whitlam, in Xu and, your Honour, their reasoning, as they themselves say, was obiter.  It was not necessary for the determination of the appeal before them.  That proposition has now been supported and stated by Mr Justice Burchett in a recent case handed down last week, Montes‑Granados, and in that circumstance, your Honour, we submit that there is no vehicle for special leave revealed by Yusuf or Israelian on what is undoubtedly an important point.

Your Honour, as I look at the grounds raised in both cases, as best I can read them and they do change through the documentation, they come down to five points.  The first is the point that your Honour Justice Kirby has adverted to, the relationship between 430 and 476(1)(a).  The justices in Xu, whom my learned friend doubtless relies on, indicated that that was a bare question of statutory construction only.  That is at para 19 of Xu.  Mr Tracey in his grounds tries to elevate a bare question of statutory construction to a question of principles of statutory construction.  That is the word he uses.

CALLINAN J:   But the construction is likely to have a bearing upon many, many cases, is it not?

MR KEON-COHEN:   It would, your Honour, but, in my submission, the construction is now and always was settled law and that Xu does not upset that stream of settled law.

KIRBY J:   Leave aside what has happened in the Federal Court.  I mean, it is natural once a line of authority has been established that the Federal Court will continue to follow that line of authority.  The question is whether in the face of the instruction of the Parliament it is permissible to take the reasoning which the Federal Court has taken and if that be permissible, well, this Court will hold that; if it not be permissible then the will of the Parliament has been breached.

MR KEON-COHEN:   But, with great respect, your Honour begs the question.  The instruction of the Parliament is to be gleaned by the proper understanding of 430 and 476.

CALLINAN J:   Your argument is that the construction preferred by most Federal Court judges is plainly right; is that correct?

MR KEON-COHEN:   Yes, your Honour.  Yusuf, in our submission ‑ ‑ ‑

CALLINAN J:   And unless you are correct about that argument, then this would be a case which would surely invite a grant of special leave.

MR KEON-COHEN:   Your Honour, I would add two observations going to discretion as to those comments.  First, in Israelian this issue was never agitated in the Full Court below.  Therefore, on normal principles that attract special leave, this Court would be reluctant ‑ ‑ ‑

KIRBY J:   It is a point of law.  It is a point of law.  It is a question of how the Federal Court is approaching its power.  Therefore, as it is established in the Federal Court, there is no real point in arguing it in that court.  The only place to argue it is here.

MR KEON-COHEN:   Well, your Honour, may I respond with a second proposition two both your Honours’ questions.  The second point I would make is to alert the Court to the fact that as of two days ago we learnt that a Full Court of five justices of the Federal Court will sit in Sydney on 28 February and the Chief Justice, Chief Justice Black, will head that court to deal with exactly this issue.  That issue arises in a case called Singh, which I have provided to the Court this morning as one of the list of authorities.  Could I take your Honours to that judgment because it is important and, in my respectful submission, counts against a grant of special leave by this Court.  Singh (1999) FCA 1126, your Honour, is a decision handed on 17 August. Does the Court have these judgments?

KIRBY J:   Yes.

MR KEON-COHEN:   You may have another Singh.  This is FCA 1126 of 17 August.

KIRBY J:   This is Justice Mansfield.

McHUGH J:   No.  I have got 1234.

CALLINAN J:   So have I.

KIRBY J:   The one you want us to look at is the judgment of Justice Mansfield; is that correct?

MR KEON-COHEN:   I beg your pardon, your Honour.

KIRBY J:   The judgment of Justice Mansfield is the one you are referring to?

MR KEON-COHEN:   No, your Honour.  I am referring to a decision of Justice Drummond handed down on 17 August 1999.

McHUGH J:   No, well, I am afraid ‑ ‑ ‑

CALLINAN J:   I do not have it.  Anyway, what is the point of it?

MR KEON-COHEN:   The point of it is this, your Honour, that when one reads his Honour’s reasons it squarely raises the principal issue that my learned friend raises before this Court, 430 and ‑ ‑ ‑

CALLINAN J:   And that is the issue that is going to a court of five in the Federal Court; is that what you are saying?

MR KEON-COHEN:   It will be heard by a court of five.  Now, in my submission, in that circumstance it would be inappropriate for this Court to then receive this matter and also argue the point in the months ahead.

KIRBY J:   What, are you asking us to postpone this application until after the decision in the Full Court is available?

MR KEON-COHEN:   No, your Honour.  I am asking this Court to dismiss both applications.

KIRBY J:   Why would we do that?  If there is an arguable special leave point, it is true that it may be helpful for this Court to have the decision of the bench of five justices of the Federal Court, but it is hardly a reason to dismiss the application.  If their Honours, for example, came to a view that the cause being proffered by the applicant in this application is correct, then the applicant will have lost the opportunity of advancing that view.

McHUGH J:   Well, for instance, if I remember rightly, we granted leave in the BT Case and we certainly heard argument notwithstanding the fact that a bench of five had been constituted in the Federal Court by the Esso Case.  Now, admittedly BT came from New South Wales whereas the other case was in the federal system, but the fact that they are going to sit five judges is not really decisive against the grant of special leave, Mr Keon‑Cohen.

MR KEON-COHEN:   Well, I mention it to the Court.

McHUGH J:   Yes.

MR KEON-COHEN:   In our submission, it is a factor in the Court’s considerations of a discretionary kind.  Your Honour Justice Kirby suggests should we not adjourn the determination of this application.  Your Honour, we would accept that as an alternative approach but we nevertheless fall back to the primary submission that there is no plain error of law revealed in Yusuf or Israelian which would ‑ ‑ ‑

KIRBY J:   Well, it is obviously something that has agitated the Full Court of the Federal Court to sit a bench of five.

MR KEON-COHEN:   It is agitated in that way, your Honour, because in Singh the issue is squarely presented and the court has determined to deal with it that way.  In these cases, in both of them, in our submission, there is no error of law revealed.

CALLINAN J:   Which way did Justice Drummond decide the matter in Singh?

MR KEON-COHEN:   He decided – he set aside the matter, your Honour.

CALLINAN J:   So that he favoured ‑ ‑ ‑

MR KEON-COHEN:   He set aside the matter in favour of the applicant where the applicant had been refused ‑ ‑ ‑

CALLINAN J:   Regarding himself as bound by the numerous decisions of the Full Federal Court I take it.

MR KEON-COHEN:   That is correct, your Honour, following the Yusuf line.  Now, your Honour, the ‑ ‑ ‑

McHUGH J:   You just might resume your seat for a moment, Mr Keon‑Cohen.  Mr Tracey, having regard to what we have been told about this matter of Singh, why would not the best course be to adjourn these present applications of yours?

MR TRACEY:   A number of reasons, your Honour.  Firstly, I cannot tell your Honours and I do not think my friend would so assert that the factual basis of Singh is equivalent to the factual basis of these two cases.  The second reason, your Honour, is that one might expect that the party who loses in Singh is going to make an application for special leave which will give rise to the same issues in due course in any event.  The third reason is if your Honours proceed to grant special leave today in these matters, it could always be revoked at a later stage prior to hearing depending upon what happens in Singh.

KIRBY J:   I think the first argument about the facts is really not much to the point and the second one takes a somewhat dispassionate view about the fate of these particular applicants who have their entitlement to have the matter determined and the third, it does seem more appropriate as it is so proximate -  I mean, it is only a matter of weeks away that the Full Court constituted by five is going to sit - it seems unlikely that although there would be factual differences that the Full Court would not be addressing the key legal proposition which underlies all of these cases and that that will provide a good vehicle or it may provide a more appropriate vehicle than this particular application because we would then have the ‑ ‑ ‑

MR TRACEY:   Well, the difficulty with that, your Honour ‑ ‑ ‑

KIRBY J:   ‑ ‑ ‑ review of all the cases to date by a bench of five.

MR TRACEY:   Your Honour, at minimum we would be seeking that in the event – and this, of course, is purely hypothetical – that the Minister’s appeal in Singh is dismissed by this Full Court, we would in due course, one imagines, be instructed to seek special leave in respect of that matter.

KIRBY J:   Well, that may be so, but what will you have lost in this application?  You could have these applications listed on the same day, if you are still discontented.

MR TRACEY:   Well, we would have lost nothing, your Honour.  All I want to guard against ‑ ‑ ‑

KIRBY J:   It is not like you to be so pessimistic, Mr Tracey.  You might win.

MR TRACEY:   All I want to guard against in the alternative is that the Minister will be shut out when he might otherwise have been granted special leave in respect of these two matters from having them dealt with by this Court in due course if the need arises and nothing ‑ ‑ ‑

McHUGH J:   I mean, you say that if you win in Singh, you would still want to press on with the special leave applications ‑ ‑ ‑

MR TRACEY:   Precisely.  Precisely, your Honour.

McHUGH J:   ‑ ‑ ‑ in these two cases and, if you lose in Singh, you will be wanting to come up here in the three cases.

MR TRACEY:   Yes, your Honour, so that these matters ‑ ‑ ‑

KIRBY J:   But I remember when I sat in an intermediate court, Mr Tracey, if I was sitting there and I was told that the Full Court of the High Court is going to pass on these matters, you would simply stand down your case and then we would not have the benefit of the bench of five judges.  They would say, “Why should we deal with it?  The High Court is going to deal with it.”

CALLINAN J:   Well, not if we were to make plain that ‑ we would give a grant of special leave but make it plain that we would not hear the matter until after the decision in Singh came down.

MR TRACEY:   We would certainly invite the Court to take that step, your Honour.

CALLINAN J:   The Federal Court therefore being apprised of the fact that we would very much welcome their views on it.

McHUGH J:   Yes.  I think that Mr Keon‑Cohen should resume his argument.  Yes, Mr Keon‑Cohen.

MR KEON-COHEN:   If the Court pleases, there are subsidiary issues which I would remind the Court of in terms of the precise terms of any

grant of special leave that might be made.  In our respectful submission, if you are against me on the major point, in our submission, there is nothing that is left in my learned friend’s case that should attract special leave also and the grant of leave should only be made in respect of the first point that he puts in his various formulated grounds and that point is spelt out at application book page 49 and ‑ ‑ ‑

KIRBY J:   As he wants a test case, do we not normally provide for the cost to be paid, if the Minister wants a test case determined by the Court in these migration matters?  Would he not normally have to pay the costs in either event?

MR KEON-COHEN:   Normally, your Honour, that is so but we would seek to confine the grounds of special leave were it to be sent for hearing on the basis that there is no points other than the 430 or 476 point that warrants it.  For example, the second point of Mr Tracey’s five grounds that I can isolate is the question of 476(3)(e), that is to say my learned friend puts that the vice complained of in these cases, failing to make a finding about a material fact, is properly characterised as a 476(3) ground, that is to say in regard to relevant or irrelevant considerations.  That is barred by the Parliament and is not within jurisdiction under Part VIII and it is not allowable to try to characterise the matter as 476(1)(a) procedural ‑ ‑ ‑

McHUGH J:   Yes, but it is closely tied up.  Eleven years on this Court has persuaded me that you have got to be very careful before you isolate grounds in special leave when there seems to be some relationship between the various grounds relied on.  In the course of argument you do not know where it is going.

MR KEON-COHEN:   Well, your Honour, in our respectful submission, this is a pure question of distinct statutory provisions and distinct grounds provided and my learned friend conflates them ‑ ‑ ‑

CALLINAN J:   The proper construction – no, no, the proper construction of one section or one subsection of the Act is bound to be affected by the construction of other sections or subsections.  It is inevitable.

MR KEON-COHEN:   Well, your Honour, that may be so but one needs to look to the particular sections we are here discussing.  In this section 476 the clause I am speaking of is expressly exempted and it is not a question of statutory construction.  It is a question of looking to the vice complained of and, your Honour, the authorities, the long line of authorities that I have mentioned, I can take you to numerous passages where this point is mentioned and consistently determined ‑ Yusuf is one example, Singh is another – that the failure to make findings of material facts is a procedural matter.  It is not an irrelevant consideration matter which is otherwise barred.  So, in our submission, the analysis of central focus need not spill over into that other ground and to that other problem.

Another ground relied upon by my learned friend is the question of remedy.  Great discussion is presented to this Court or a point is raised before this Court as to whether it is appropriate under 481 of the Act that given a failure to make findings and given an error of procedures found under 476(1)(a) that the appropriate remedy is then to set aside the decision of the Full Federal Court or the decision of the Tribunal and remit the matter for reconsideration or whether the appropriate remedy is in the nature of mandamus to require the decision maker to again formulate his reasons.

Your Honour, in our submission, that is not a special leave point, that there is clear line of authority which distinguishes the common law remedies for natural justice or error of law from the statutory discretions vested in the Federal Court on judicial review under section 486 and, in our submission, there is no point here other than a question of statutory construction which has been resolved and, similarly, therefore, we would submit that issue, if this Court is minded to grant special leave, should not be embroiled in the major point.

Fifthly, your Honour, there is a question of whether on judicial review it is appropriate for a Federal Court justice or Full Court to itself objectively make material findings of fact or whether on a proper construction of the Act the proper course is for the court on judicial review to accept such findings of fact as are mandated by the statute or such findings of fact as are found, material facts as are found by the Tribunal itself.  Again, in our submission, not an issue that warrants a grant of special leave and, secondly, in our submission, good authority in Full Courts and single justices for the proposition that the Federal Court on review may itself objectively look to all the materials and without intruding into the merits discern for itself what are material facts and what are not, and that has occurred in almost all the cases that come up with through judicial review and to the Full Court.

There is reference by my learned friend to a discussion by Mr Justice Finkelstein in a case called Comcare relying on statements by Justice Brennan, as he then was, to contrary effect.  The authorities again look to those propositions of Justice Brennan.  Justice Finkelstein looks to that contrary proposition and Justice Finkelstein in Comcare states, “I am bound by authority.  I do not like the line of authority but I am bound it and I find in accordance with authority that a court may itself objectively determine what are material facts and what are not.”

So there is that dispute in that issue but, in my submission, there is not insufficient conflict of authority to warrant the proposition that the issue is so unclear and so uncertain that it warrants a grant of special leave.  Your Honour, a fifth point which appears to be raised in Yusuf but not in Israelian is a question of whether the Tribunal or the fact finder ‑ ‑ ‑

McHUGH J:   Can I just stop you for a moment.  I understood Mr Gibson was appearing in Yusuf but both of you appearing.

MR KEON-COHEN:   We are both instructed, your Honour, and appearing in both matters.

McHUGH J:   In both, yes, thank you.

MR KEON-COHEN:   Your Honour, the final point that Mr Tracey relies upon is a question of whether there is an obligation at law for the decision maker to refer to contrary findings or contrary material in relation to material facts which he is finding.  That again, in our submission, is a very peripheral point which has been the subject of decisions and which should not attract special leave.  Those would be my submissions, your Honour.

McHUGH J:   Yes.  Mr Tracey, if the Court grants leave, is the Minister prepared to pay the costs of the respondent in any event?

MR TRACEY:   Your Honour, I do not have precise instructions ‑ ‑ ‑

KIRBY J:   If we were to - - -

MR TRACEY:   ‑ ‑ ‑ on that but I would be surprised if I were not able to obtain them.  I cannot put it any higher than that at this instance, your Honour.

McHUGH J:   Well, we will make it a condition of the grant of special leave.

There will be a grant of special leave in this matter but the grant is made upon condition that the applicant Minister pays the costs of the respondent of and incidental to the appeal irrespective of the result and that there be no interference with the costs orders in the court below.

MR TRACEY:   If your Honour pleases.

MR KEON-COHEN:   And, if your Honour pleases, is that an order in both matters?

McHUGH J:   In both matters, yes, in both matters.  And we wish to make it plain that the grant of special leave is not intended in any way to make any statement as to whether or not the Full Court should not hear the matter of Singh with a bench of five justices and in the ordinary course it would be most unlikely that these appeals would be heard before the Full Court gave its judgment in the Singh Case.

MR KEON-COHEN:   Your Honour, might I mention just one mention which might be of relevance.  My client, Ms Yusuf, is in custody, which may have an impact on the Court’s program hereafter.

McHUGH J:   Yes.  Well, because of that, Mr Keon‑Cohen, it may be that a proper approach to the Registry to have the matters expedited.

MR KEON-COHEN:   If your Honour pleases.

McHUGH J:   Yes.  Yes, the Court will now adjourn to be reconstituted.

AT 1.12 PM THE MATTER WAS CONCLUDED