Minister for Immigration and Border Protection v Singh & Anor

[2017] HCATrans 79

[2017] HCATrans 079

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M151 of 2016

B e t w e e n -

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Applicant

and

MOHINDER PAL SINGH

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 7 APRIL 2017, AT 10.42 AM

Copyright in the High Court of Australia

MR G.T. JOHNSON, SC:  May it please your Honours, I appear with my learned friend, MR R.C. KNOWLES, for the applicant.  (instructed by Clayton Utz Lawyers)

MR P.R.D. GRAY, QC:  May it please the Court, I appear with MR A. ALEKSOV, for Mr Singh.  (instructed by Ravi James Lawyers)

NETTLE J:   Mr Johnson.

MR JOHNSON:   Yes, thank you, your Honours.  Your Honours, the special leave question that we have formulated in the summary of argument attempts to distil the various circumstances of the case which we say give rise to this being an appropriate matter for special leave.  What I was proposing to do, your Honours, was to adopt the following structure, if it suits your Honours.

Firstly, just to quickly run through that question; secondly, to refer to some concessions or statements of purpose that were made below which enlighten the discussion; thirdly, to refer to what we say is the general importance; fourthly, to quickly visit section 476 of the Migration Act and indicate to your Honours why we say that what the Full Court has done has gone beyond or it would require the Circuit Court to go beyond its authority under that provision.

NETTLE J:   Mr Johnson, was section 476(2)(a) drawn to the attention of the Full Court of the Federal Court?  I ask because I cannot see it referred to in the reasons for judgment.

MR JOHNSON:   Your Honour, I am sure that it was.  I think all of 476 was there.  Section 476(2)(a) specifically refers to the inability of the Circuit Court to review a primary decision, and that was an idea that was at the very heart of the Full Court’s judgment in Prodduturi that the Full Court spent so much time looking at.

NETTLE J:   Yes.

MR JOHNSON:   So although they might not refer to the provision in specie, as it were, frankly one could not read Prodduturi without appreciating that there was a limitation upon the ‑ ‑ ‑

GORDON J:   Is your complaint really that the Full Court of the Federal Court focused on a power to grant a remedy divorced from the jurisdiction in which that power might be granted or exercised?

MR JOHNSON:   Yes, that is the territory that we are in, your Honour.

GORDON J:   The “territory”, or is that it?

MR JOHNSON:   That is the main point, your Honour.  There are also some questions of hypotheticality involved. 

GORDON J:   I wonder about that.  If you are right in your contention that they are focused on power to grant a remedy divorced from the jurisdiction ‑ ‑ ‑

MR JOHNSON:   That is right.

GORDON J:   ‑ ‑ ‑ then why does any question of utility or ‑ ‑ ‑

NETTLE J:   Hypotheticality.

GORDON J:   ‑ ‑ ‑ hypotheticality arise?  They have either got jurisdiction or they have not.

MR JOHNSON:   Well, I see the force in that, but assuming for the moment that the court did have jurisdiction and the question then came to its exercise of power under, say, section 16 of the Federal Circuit Court Act ‑ that is the power that they have got to grant declarations – then one would run into the issue as to whether or not it was appropriate to grant relief in relation to a controversy which is not present in circumstances which might not ever arise; the circumstance whereby the applicant later applies for another visa, the delegate takes the view that that application is precluded by section 48, effectively rejects any argument that the applicant makes to the effect that the prior application was not his.  That is a future controversy.  There are all sorts of uncertainties which we have attempted to highlight in the summary of argument.

EDELMAN J:   Was that issue not dealt with in M61?

MR JOHNSON:   M61 is very different, your Honour, because in M61 what we had was a present controversy.  What happened in M61, very shortly stated, was that the High Court was dealing with a case where the Minister had a power – a non‑compellable power – to, in effect, allow the plaintiff to make an application for a prescribed class of visa and there was a reviewer’s recommendation, which the Court ultimately found to involve an error of law, and the circumstance was that the Minister would be taking into account the recommendation in the course of deciding how to exercise his non‑compellable powers.

So that was a case which was truly in relation to a decision‑making process that was ongoing and extant.  This is different.  In this case the applicant is only reviewing the application – the application the Circuit Court had was only to review the Tribunal’s decision.  The applicant, in the Federal Court, was not seeking any mandamus against the Tribunal, was not seeking certiorari in aid of mandamus, but was seeking prohibition to try to stop the Tribunal’s decision from being relied upon in the context of section 48 that it would be the delegate’s decision rather than the Tribunal decision that would be looked at in that respect and if the prohibition was futile then one could not have certiorari in aid of that anyway.

The purpose of the applicant was to seek to garner some issue estoppel or some basis upon which the decision‑maker might, as he put it, self‑correct in the event that there was a later visa application and in the event that the decision‑maker, then looking at the matter under section 48, was inclined to regard the application as invalid.

So M61 20(10)(e) was concerned with present circumstances.  Relief was granted, which had the effect of declaring invalid a recommendation which might otherwise have been taken into account by the Minister in making decisions effectively under consideration.  This is very different.  This is much removed.  That itself is a ground of distinction, quite apart from the fact that this Court’s jurisdiction under 75(v) plainly is not circumscribed in that same way that the courts below were circumscribed under section 476.

GORDON J:   So one wonders why there was not an application under 75(v).  Why is this not like SZFDE?

MR JOHNSON:   SZFDE came here from the Federal Court.

GORDON J:   I know it did, but in terms of 75(v) power in terms of challenge on the fraud of the decision‑maker being the delegate rather than the Tribunal, given your argument about jurisdiction.

MR JOHNSON:   The applicant could have commenced a proceeding in this Court with respect to the delegate’s decision; that is correct.  Also, your Honours, if down the track – that is the point we have made in our submissions – section 48 is deployed against the present respondent and in the way that he fears and if he then wishes to test that in a court and to argue, in effect, that this visa application was not his, then he can do that.  He can not only come here but he can go to the Circuit Court because that would be a refusal by the Minister to decide on the merits that further visa application.  So it would be a migration decision, and it would not be a primary decision because it would only go to validity, not to the merits, so at that point he could have his day in court.

But what this judgment does is to force the Circuit Court into an exercise which is not necessary to review the Tribunal decision, which is quite remote from the Tribunal decision.

GORDON J:   On the way you put it, it has nothing to do with the Tribunal decision ‑ ‑ ‑

MR JOHNSON:   That is right.

GORDON J:   ‑ ‑ ‑ it has got to do with the delegate’s decision.

MR JOHNSON:   Either the delegate’s decision – that is, the decision the delegate has already made – or some possible future decision in relation to a visa application not yet made, to the effect that it is precluded under section 48.  And that is hypothetical in many ways:  firstly, the visa application might not be made; secondly, one cannot gainsay what the decision‑maker’s attitude is going to be towards it; thirdly, there are various features of section 48 which condition its operation.  So that if, for instance, the visa application was made offshore, it would not come into play at all, or if the applicant was granted a visa pursuant to a non‑compulsive power or otherwise, a substantive visa, it would not come into play at all.

NETTLE J:   Can I just come back to this hypothetical point?

MR JOHNSON:   Yes.

NETTLE J:   Is your concern that it is possible, although you would contend against it, that it is held that there is jurisdiction in the Federal Circuit Court to make a declaration of the kind that it is purported to do, but you would still wish to say that it has no effect upon the validity of the decision of the delegate?  Is that the hypotheticality?

MR JOHNSON:   No effect upon the validity of the decision of the delegate ‑ ‑ ‑

NETTLE J:   Yes.

MR JOHNSON:   ‑ ‑ ‑ or of the Tribunal.

NETTLE J:   And therefore to grant the declaration is hypothetical because it does not resolve the issue.  Is that the way it is put?

MR JOHNSON:   Yes, yes.  And if one becomes forward‑thinking, if one forgets about the delegate’s decision that has already been made and one forgets about the Tribunal decision and one focuses instead upon this

spectre of section 48 coming into play in the future, well then it is all premature and hypothetical and that is a fight that can be had later.

NETTLE J:   I doubt you would get odds on of it not occurring.  It is as likely as day follows night, is it not?

MR JOHNSON:   I think that is right.  So, your Honours, those are the main issues.  The ‑ ‑ ‑

NETTLE J:   I understand.  Thank you.  We might hear from Mr Gray.

MR GRAY:   Your Honours, I want to address, by reference to three broad questions, and I will be spending most of my time on the first question, and it is obviously the one that is engaging the most attention of the Bench, and it is:  what are the implications of section 476 itself, its terms and its limitations?  In short, did the Federal Circuit Court lack jurisdiction to grant a declaration, for example a declaration of invalidity of the underlying application for a visa, by reason of the limited conferral of jurisdiction in 476?

The other two questions are easier to deal with.  They are:  is there otherwise a lack of jurisdiction by reason that the claim for such a declaration does not relate to a real controversy but to a hypothetical scenario?  The third question is:  would the grant of such a declaration be futile?  As I say, I will deal mostly with the first question and I will proceed to that now.

Section 476 of the Migration Act is available to your Honours at page 164 of the application book.  Your Honours will see ‑ and there has also been recently examined by the Court in SZSSJ ‑ that the provision confers jurisdiction in subsection (1) of 476, subject to the limitations in subsection (2) of section 476.  In that case I just mentioned, SZSSJ ‑ your Honours might have that available to you but I do not need you to turn to it, I will just make some submissions referable to it – at paragraph 60 the Court held that the context – I am paraphrasing, your Honours – in which the words “in relation to” in 476(1) fell to be considered was that a migration decision included a privative clause decision or a purported privative clause decision and that section 474(1) rendered a privative clause decision incapable of being called into question in any court other than on grounds of jurisdictional error.

Pausing there, for present purposes we do not understand there to be any dispute that this would include calling into question – that is, a permissible ground – for calling into question a decision would include calling into question a decision on grounds of that decision being affected by fraud, although the term “jurisdictional error” has not been always attached to such circumstances. 

An appropriate analysis will often be that, as a result of a relevant act of fraud, the effective exercise of discretion remains constructively unexercised and that that is an acceptable and orthodox species of jurisdictional error.  This point is explained in the reply submissions on behalf of Mr Singh to the Federal Court which your Honours have available to you, in particular at pages 116 to 118 of the application book.

Returning then to the Court’s decision in SZSSJ and returning to what is said at paragraph 60, the Court said that, in that context, the words “in relation to” in 476 (1) are not words of expansion but are words that connect the relief sought to the relevant decision.  It is accepted by us, your Honours, that the Court was explaining that a connection between relief and such a decision is required, and we accept that a connection with a decision referred to and excluded by subsection (2) of 476 would not be sufficient.  We do not accept, however, your Honours, that only relief that directly disturbs the particular decision or action founded directly upon it comes within the exegesis of 476 by the Court in SZSSJ. 

NETTLE J:   Mr Gray, I do not take you to dispute that the point is arguable, do you?

MR GRAY:   I do not dispute that the point is arguable.  I want to say a few things more as to why there is insufficient doubt to disturb the Full Court’s decision on the point, your Honour, if I may.

NETTLE J:   Certainly.

MR GRAY:   Your Honours, my learned friend, Mr Johnson, said a number of times that 476(1) in effect confers jurisdiction only to review the relevant migration decisions; that is the privative court decision.  That is not what SZSSJ says.  A connection is required but relief does not have to be limited to relief that reviews the decision, and this is clear from the next paragraph, paragraph 61, in SZSSJ, wherein the Court held that:

the Federal Circuit Court . . . is jurisdiction in any matter in which relief –

of the kind referred to in section 75(v) of the Constitution:

is sought on a ground that [the] decision is affected by jurisdictional error . . . jurisdiction is in a matter in which –

relief of that kind is sought.  And that is a familiar concept to the Court; there is not any reason to read into that statement some sort of limitation that is not there, and we say that does not in any way preclude the availability of associated declaratory relief provided there is a sufficient nexus with the constitutional relief that is sought.

Now I will come to the facts of this case, your Honours, and I will endeavour to persuade your Honours that there was indeed a nexus with relief sought, on grounds of jurisdictional error, to disturb the decision of the Migration Review Tribunal in this case, and therefore that the declaratory relief that was sought was well within jurisdiction conferred by section 476(1) and not taken away by section 476(2). 

The relevant facts include the following, your Honours.  The Tribunal affirmed the decision of the delegate, which was a decision to refuse – I emphasise that word “refuse” – Mr Singh’s application for a visa.  The Tribunal’s affirmation carried with it a confirmation of the legal effect of the anterior decision.  Now, that anterior decision was a refusal and the affirmation, in effect, confirmed the refusal. 

As your Honours, I think, well know, the concept of a refusal under the Migration Act is a very significant one.  There is a distinction in the Act between a refusal of an application for a visa and a decision that no valid application for a visa has been made.  Your Honours have section 47 of the Migration Act at page 162 of the application book.  In particular, we rely on section 47(1), (3) and (4).  They make it very plain that that distinction is of the utmost importance.

Section 65 of the Act is not reproduced in the book but it is entirely consistent with section 47 in that the primary duty of a Minister to grant or refuse a visa is introduced by the words “After considering a valid application for a visa”.  If it is not a valid application under section 47, the Minister is not to consider it but to reach a decision that it is invalid, and that is the end of the matter.  So there is never in those circumstances a refusal.

Now why is this important, Mr Johnson has already addressed.  It is important because it triggers, amongst other things, section 48.  Section 48 is what the Court should be relevantly concerned with here.  My learned friend has advanced to the Court that this is a matter of future potential impact but not a matter of present importance.  With great respect to him, we submit he is wrong, and I will endeavour to demonstrate that now.

The refusal of an application for a visa certainly carries important consequences, and they are adverse to Mr Singh’s interests, and Mr Johnson did not dispute that, but in particular what he said was – this is a matter of future concern only as adverse consequences may or may not happen in the future.  However, return to the Act to make it clear that once a refusal has occurred, a person who is taken to be the applicant in relation to that visa application has a present status under the Act.  There is a positive bar – a prevention – on that person making an application.  I ask your Honours to turn to section 47, at page 162A. 

NETTLE J:   This really all goes to his ground 2, does it not?  That is the hypothetical ground.

MR GRAY:   His ground 2, your Honour.

NETTLE J:   Ground 2, hypothetical.

MR GRAY:   No, it also goes – it largely goes to that but it is relevant to setting the scene in relation to 476 as well.

NETTLE J:   All right.

MR GRAY:   But your Honour is right; it goes mainly to the hypothetical ground.  While I am on that I will just finish it off, if I may.

NETTLE J:   Certainly.

MR GRAY:   Section 47 is reproduced at pages 162 and 162A, and your Honours will see there that – I beg your pardon.  Section 48, I should say, is reproduced at pages 162 to 162A of the application book, introduced by the words in subsection (1):

A non‑citizen in the migration zone who ‑

I ask your Honours to go to paragraph (b)(i):

after last entering Australia:

(i)     was refused a visa ‑

And the words following the two roman numeral subsections are:

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section ‑

I will skip the next words:

but not for a visa of any other class.

In section 46(1) this is referred to as prevention.  Section 46(1) is on page 160.  Subsection (1):

Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:

. . .

(d)      it is not prevented ‑

that is, if the making of the application for a visa:

is not prevented by any provision of this Act ‑

NETTLE J:   I think, if I may say so, we have got the point that it affects his ability to apply.

MR GRAY:   Thank you.  Now, to not only that, your Honours, we would say that it affects the current status that the putative applicant for a visa has; he cannot apply. 

Now, the matters that Mr Singh sought to agitate before the Circuit Court went to whether it was open to the Tribunal to affirm a refusal of the application, and in this sense they related to the Tribunal’s decision to affirm and, for that reason, the nexus in 476(1) is prima facie made out, subject to subsection (2).  Could I ask your Honours to turn in the application book to page 55, where your Honours will see the amended originating motion?  Final orders sought – there is a range of constitutional relief sought against the Tribunal’s decision, the second respondent’s decision, including at that point mandamus.

Now, my friend has put a lot of emphasis on the fact that mandamus was not pressed in the matter.  The Minister places great emphasis, not only in writing but, in my friend’s oral submissions, on that point.  In the end it is true, mandamus was not pressed in closing submissions.  Your Honours will see that in the final position as put to the Circuit Court at application book 84, paragraphs 78 and 79.  The Circuit Court noted that it thought mandamus was unavailable.  That is at paragraph 86 of the Circuit Court’s judgment.  Strictly speaking, we submit, that is actually not correct.  Section 69 of the Act provides an important clue in this regard.  Section 69 is available to your Honours in the application book at page 162B. 

If it is correct that the application for a visa was not a valid application then there will have been a breach of the provisions referred to in 69(1).  Section 69(1) provides that, in that event:

does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed. 

In our submission, the Tribunal had jurisdiction to consider the fraud issue, the validity of the application and, if persuaded of fraud and the invalidity of the application, to set aside the delegate’s decision within the purview of 69(1).

Now, if it is true that this case turns on the fact that in the end mandamus was not pressed then, your Honours, this case is a poor vehicle to take to Canberra for the issues concerning the true limitations and constraints of section 476 to be tested before the Full High Court.  The reason for that is that it would have been perfectly open for Mr Singh to have retained his claim for mandamus before the Circuit Court, and it is really a peculiar consequence of a decision taken in the running of the case before the Circuit Court that mandamus was not pressed.  If our friends are right and there is some fatal flaw in not having pressed mandamus, this is a one‑off and it is not a suitable vehicle for the true limitations of section 476 to be examined.

The remaining potential obstacle is 476(2)(a).  I have endeavoured to explain why it is that there is a sufficient nexus between the relief sought against the Tribunal’s decision, which was an affirmation of a refusal, and the forward issue concerning the underlying application for a visa.  Section 476(2)(a) withdraws jurisdiction in relation to primary decisions.  We submit that, in a superficial sense, it might be said that, just as the underlying question of the validity of the visa application related to the Tribunal’s affirmation of the refusal, it could be said that it also relates to the primary decision of the delegate to refuse the visa.

Your Honours, in our submission, if it is permissible to claim declaratory relief in relation to the invalidity of the application for a visa under 476(1), 476(2)(a) should not be read in the same broad sense; 476(2)(a) is a provision, in effect, cutting down what is otherwise conferred and such provision should not be read expansively.  We have referred to Shergold v Tanner generally in this way in our submissions.

Your Honours, very briefly on the hypothetical, I have already addressed in essence why we say there is a current status and a current bar, or to use the word in 46, prevention.

NETTLE J:   We follow that submission, thank you. 

MR GRAY:   And on futility, the Full Court was correct to identify that issue estoppels would be of great use in the future.

NETTLE J:   To do with hypotheticality; I think we follow that too.

MR GRAY:   If your Honours please.

NETTLE J:   Anything in reply, Mr Johnson?

MR JOHNSON:   Yes, thank you, your Honours.  Your Honours, firstly, what was ultimately sought by the present respondent in the Federal Court was prohibition against the Tribunal decision being relied upon.  There was a claim for certiorari but no claim for mandamus, and there was a claim for a declaration as to the validity of the visa application.

In relation to the claim for prohibition, it would not be the Tribunal’s affirmation of the delegate’s decision that would come into play or could come into play in the event that section 48 subsequently needs to be considered in relation to some further application made by the present respondent.  Rather, it would be the delegate’s decision.  In that respect, we refer to paragraph 17 of our submissions, and in particular to the judgment in Kim (2008), which is referred to there.

So prohibition would not aid the present respondent and so certiorari would not be granted in aid of prohibition.  As we have said more than once, mandamus was not sought, even in the Full Court or in the Circuit Court.  The Circuit Court’s judgment at paragraph 4 noted that mandamus was not sought.

NETTLE J:   What do you say about Mr Gray’s point that the Federal Circuit Court has jurisdiction in relation to the Tribunal’s decision which necessarily encompassed the validity of the delegate’s decision and the ‑ ‑ ‑

MR JOHNSON:   We dispute that, your Honour, because the Tribunal’s jurisdiction does not depend upon the validity of the visa application.  The Tribunal’s jurisdiction depends upon there being an application to it under section 347 to review a Part 5 reviewable decision.

NETTLE J:   Could not the Tribunal have said, we refuse to affirm the decision of the delegate because it was made in contravention of the Act upon the basis of an application which was not valid?

MR JOHNSON:   The Tribunal could do that, your Honour, except for the fact that under the provision which delineates its powers, section 349 of the Act, which is at page – we have copies of 349 here, your Honours.  I apologise for it not being in the book.  Under section 349 of the Act, the powers of the Tribunal are set out there in subsection (2).

NETTLE J:   Yes.

MR JOHNSON:   And your Honours will note that the power in (d) to set aside the decision is not simply to set aside the decision, it is to set aside the decision and substitute a new decision.

NETTLE J:   Yes.

MR JOHNSON:   Now, it is true that there are Full Federal Court decisions which assume that the Tribunal can just set aside the decision and not substitute its own, but that is a potential difficulty, that approach to the problem.  It should also be borne in mind that section 69 of the Act, which is in the book, at page 162B, provides that:

Non‑compliance by the Minister with Subdivision AA or AB ‑

If I can just say, your Honour, it is common ground that those include sections 46 and 47 to do with considering valid applications and not considering invalid applications:

in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.

NETTLE J:   But that still brings you back to the point that the Tribunal could say that we refuse to affirm this delegate’s decision because it was made upon the basis of an application which did not comply with the Act.

MR JOHNSON:   If the Tribunal refused to affirm it but did not do anything else – in other words, it left the delegate’s decision on foot – it would be the delegate’s decision which came to be looked at for the purposes of section 48 and not the Tribunal’s decision on review.

NETTLE J:   It could send it back to the delegate, I suppose, to have another think about it, could it not?

MR JOHNSON:   Subject to the point that I made about the way in which the statement of powers for this Tribunal under section 349 does not seem to include a stand alone power to set aside, so that is a difficulty there, your Honours.

NETTLE J:   Thank you, Mr Johnson.

MR JOHNSON:   Thank you, your Honours.

NETTLE J:   In this matter the Court is of the view that the reasons for judgment of the Full Court of the Federal Court of Australia are not attended by sufficient doubt to warrant the grant of special leave to appeal.

MR JOHNSON:   If the Court pleases.

NETTLE J:   Do you seek costs, Mr Gray, or is that covered already with the arrangements in place?

MR GRAY:   It is covered, I think, your Honour.

MR JOHNSON:   Yes, there is an agreement, your Honour, but if your Honour made an order for costs, that would probably assist.

NETTLE J:   Be appropriate?

MR JOHNSON:   Yes.

NETTLE J:   It is ordered that the application be dismissed with costs.  Thank you, gentlemen.

AT 11.20 AM THE MATTER WAS CONCLUDED