Minister for Immigration and Citizenship v Li and Anor

[2012] HCATrans 295

[2012] HCATrans 295

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B34 of 2012

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Applicant

and

XIUJUAN LI

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

FRENCH CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 NOVEMBER 2012, AT 10.34 AM

Copyright in the High Court of Australia

MR G.R. KENNETT, SC:   May it please the Court, I appear with my friend, MS A.L. WHEATLEY, for the applicant.  (instructed by Clayton Utz Lawyers)

MR L. BOCCABELLA:   May it please the Court, I appear with my learned friend, MR W.J. MARKWELL.  (instructed by A.J. Torbey & Associates)

FRENCH CJ:   Thank you, and there is a submitting appearance for the second respondent.  Yes, Mr Kennett.

MR KENNETT:   Your Honours, the case raises issues concerning the role played in the Migration Act by sections 353(1) and 357A(3).  Those provisions can be found behind tab 1 in the Minister’s bundle of authorities at pages 137 and 141 respectively.  I wish to advance today five propositions in support of a grant of special leave:  firstly, that the position of the majority in the Full Court in this case is in direct conflict with that of an earlier Full Court in SZMOK v The Minister; secondly, that the basis on which the majority declined to follow SZMOK, with respect, does not withstand scrutiny; and thirdly, and therefore, that there is a direct conflict between authorities at intermediate appellate level which is itself a strong ground for the grant of special leave.  Fourthly ‑ ‑ ‑

FRENCH CJ:   The core of this goes to whether or not the terms “fair” and “just” have substantive content.

MR KENNETT:   Yes, whether they erect a substantive requirement.  My fourth proposition is that what the Full Court in SZMOK said about equivalent provisions to the ones in issue here was consistent with what was said by this Court in Eshetu and was correct; and finally, that the reasoning, or the effect of the reasoning of the Full Court in this case is to erect those provisions into substantive requirements.  The decision cannot be explained on a more limited basis such as that the provisions are merely declaratory of the extent to which a requirement of procedural fairness resides in the Act.

Could I go in relation to my first proposition to the judgment of the Full Court in SZMOK which is behind tab 4 in the bundle of authorities and just note on the first page in the last paragraph the ground upon which the federal magistrate in that matter had granted relief.  The Minister appealed and, relevantly to the present issues, their Honours on the Full Court discussed the role played by sections 420 and 422B(3) of the Act which are directly equivalent to the provisions here in issue at paragraphs 13 and following.  At paragraph 14 their Honours noted that provisions such as section 420 are intended to be facultative, not restrictive.  Reference was made to what had been said in Eshetu’s Case.  Then in paragraph 15, which we place reliance on, it is noted that section 422B(1), which is the restriction of procedural fairness obligations:

has not been repealed by 422B(3).  Accordingly, s 422B(1) continues to exclude common law procedural fairness –

and then their Honours say that –

Section 422B(3) may be understood as an exhortative provision in the same way as s 420(1) –

Thus their Honours say, those two provisions should not be understood as creating additional requirements or, as his Honour has put it:

a procedural requirement over and beyond what is expressly provided for in Div 4.

FRENCH CJ:   What do you say to the proposition that Eshetu was decided in a different context where there were specific constraints on certain grounds of review?

MR KENNETT:   Well, I was going to come to that, your Honour.  It is true that a lot of the discussion in Eshetu on this issue, which essentially endorses what Justice Lindgren had said in an earlier Federal Court matter, is concerned with the relationship between section 420 and section 467.  But we would say that the conclusions that are drawn about section 420 are relevant not only to that specific relationship but to the role that is played by section 420; in other words, consistent with the proposition – supportive of the proposition that it is not a section which imposes requirements that go to the validity of an exercise of the tribunal’s power.

So if you take away the particular judicial review mechanism and introduce a different judicial review mechanism, the effect of section 420 on the validity of what the tribunal has done is not affected by that.  So, yes, the judicial review context in Eshetu’s Case was different but the context insofar as requirements by which the tribunal was bound was essentially the same.  That is how we would explain the ways in which the Act has moved on since Eshetu’s Case.  Could I also note while I have got SZMOK open, what was said by their Honours in the second half of paragraph 16 and also in paragraph 18 where their Honours say:

the requirement that the tribunal act in a way that is fair and just does not refer to substantive notions of justice or fairness but is more usefully to be compared with the content of the words “justice” and “fairness” in the expressions “natural justice” and “procedural fairness” respectively –

So we take their Honours to be saying there that, to the extent that these provisions have work to do, the work that they do is in giving colour or content to procedural obligations or powers of the tribunal, not to substantive outcomes.  We have noted in the written submissions that SZMOK has been followed in at least one subsequent Full Court decision.

Could I then go to what the majority in the Full Court said in the present case, beginning on page 51 of the application book with paragraph 4 where their Honours place sections 353 and 357A at the heart of the issues in the case?  Then over the page in paragraph 10, their Honours come to SZMOK in the light of an observation by your Honour the Chief Justice and Justice Kiefel in this Court in SZGUR, where these provisions or analogous provisions were described as a requirement imposed on the tribunal.  If I could just detour very briefly to that decision, it is tab 5 in the bundle.  The relevant passage is paragraph 19 on page 601, at the bottom of page 601 of the report where your Honour and Justice Kiefel said that the power that was in issue in that case was:

to be exericised having regard to the requirement imposed on the Tribunal –

Then the two sections are paraphrased.  We would say in relation to that, this is no more than an introductory remark not taken any further in the judgment, not something on which the decision turned, and not picked up by the other Justices in the case and thus not, we would say, a basis upon which one Full Court in the Federal Court ought to part from what had been said about the role played by these provisions by another Full Court. 

Their Honours go on in subsequent paragraphs beginning from about – I should say in paragraph 11 Eshetu is referred to and then in subsequent paragraphs the point is made about the change in the structure of the Act since that case was decided and that is something that your Honour the Chief Justice put to me a minute ago.  I will not dwell on that.

Their Honours draw the two strands together in paragraph 20 on page 56 of the application book where they say that the description given to these provisions in SZMOK gave “insufficient attention to the context, referred to above”, that is, the context of Eshetu and the changes to the judicial review mechanisms in the Act since then.  Then further, and in any event, their Honours say they are “bound by what was said in SZGUR” and, as I have observed, the particular remark in SZGUR was really an introductory one.

I am now moving to – or have moved to my second proposition.  It will be apparent from what I have said that we submit that neither of the reasons given in paragraph 20 and adopted in paragraph 21 in relation to the other provision, neither of the reasons given for not following what the earlier Full Court had done stands up to scrutiny.

FRENCH CJ:   There is a certain element of déjà vu about this.  I seem to remember a string of Federal Court decisions on 420 which were falling on one side or other of the line, probably pre‑Eshetu.

MR KENNETT:   Yes, there was something of an industry of cases where it was argued that the tribunal had failed to follow a procedure it was required to follow by breaching section 420 and Eshetu put a stop to that.  Your Honours, our third proposition is that, in the light of what I have said, there is not in this case an application of a later decision by this Court that overrules the earlier Full Court decision.  There is rather, we would say, a clear and conscious disagreement between two Full Courts as to the correct construction of the Act and that, we would say, is in itself a powerful reason why special leave should be granted.

Our fourth proposition is that the view that was taken in SZMOK that provisions equivalent to these did not create additional requirements whose breach would result in jurisdictional error is a position which we submit was soundly based on what members of this Court had said in Eshetu’s Case and more generally is correct.  If I could maybe just give your Honours the references to Eshetu’s Case, paragraph 49 – it is in the bundle, but I think I can save some time by just giving your Honours the references.

FRENCH CJ:   There is not much point doing that.  They are not going to go away.

MR KENNETT:   That is true, your Honour.  Perhaps, your Honours, just a couple of the principal ones.  At page 628 of the report behind tab 3, paragraph 49, the Chief Justice and Justice McHugh referred approvingly to what Justice Lindgren had said in Sun Zhan Qui and referred also to Qantas Airways Ltd v Gubbins and said that provisions of this kind are “intended to be facultative, not restrictive”.  Then at paragraph 106 and following, which begins at page 642 in the report, Justice Gummow agrees with what Justice Lindgren had said and at paragraph 109 sets out a long passage from his Honour’s judgment. 

This, as your Honour the Chief Justice noted, was in the context of a conversation between section 420 and section 476 and that conversation is no longer taking place, but the first of the considerations mentioned by Justice Lindgren in that passage quoted on page 643 is, we submit, still present and still very powerful.  Other members of the court also endorsed what Justice Lindgren had said in that case and that is, as I say, still applicable to section 420 and applicable by analogy to section 353(1) which is the provision relating to the Migration Review Tribunal.

We would also submit that section 357A(3), if it is given more than exhortatory force, would come into direct conflict with subsection (1) of the same section and would impose a standard which is impossibly diffuse and whose application would draw a court in judicial review directly into the merits of procedural decisions.  So the proper reading of that provision is that, as the court held in SZMOK, it should not be read as creating additional or freestanding obligations.

The last of my propositions is that it is necessary to note – or begins with a necessity to note and deal with what the majority said at page 58 of the application book in paragraph 28 of their Honours’ reasons.  “where the MRT behaves in this fashion”, their Honours say, and this fashion is a reference back to the previous paragraph which is in turn the conclusion of a discussion of some other cases, a reference to the tribunal failing in this way to offer an opportunity to be heard and thereby failing “to discharge its core statutory function of reviewing the decision of the Minister or his delegate”.

Their Honours say that where the Tribunal behaves in that way, it has also not met the requirement of being fair, in 353, and failed to act in a way that is fair and just, under section 375A(3).  Their Honours then go on to say that it may be that these provisions add nothing to the general law ground of a denial of procedural fairness and that on reflection that is the better way to view the prescriptions in these provisions.  Then their Honours say that:

Even if these sections are only declaratory, they are not, in our respectful submission, thereby to be consigned to the status of aspirational statements, as opposed to requirements.  It is just that, as with the general law error ground, neither can have any particular content divorced from the circumstances of a parts of a particular case or the statutory context in which they appear.

We would seek to say two things about that passage.  Firstly, if the issue is really an issue of general law procedural fairness, then it is necessary to explain how that can stand with the express provision in section 357A(1) which generally excludes that doctrine and codifies the procedural fairness obligations of the tribunal.

The second thing that we would say is that, if this present matter is properly understood, there was no denial of procedural fairness on any normal understanding of that concept and no arguable breach of any explicit statutory procedural requirement.  As we have emphasised in the written

submissions, the respondent here was given every opportunity to seek to convince the tribunal that she met the criteria for grant of the visa.  She conceded through her adviser that she did not meet the criteria.  She thought that she soon would meet the criteria and asked the tribunal to delay its decision.

FRENCH CJ:   The criterion was having a relevant assessment?

MR KENNETT:   Having a relevant assessment, yes.  She did not have one.  She accepted that she did not have one, but she thought that if things went well in other spheres she would soon have one, so if she asked the tribunal to delay its decision, which the tribunal refused to do.  The tribunal made a decision which was unarguably correct on the facts as they stood at the time it was made.  The conclusion that that refusal to delay amounts to jurisdictional error, we submit cannot be explained in terms of a failure to conduct a review, nor can it be explained in terms of a failure to give a hearing.  Whatever it did, it did not deny the respondent a chance to be heard.

The decision below can only be explained, we would submit, on the basis that there is some additional substantive requirement arising from section 353 or section 357A(3), and it is the breach of that additional substantive obligation that is the source of the jurisdictional error.  That is, if these provisions were doing no more than restating general notions of procedural fairness, they would not do the work that needed to be done to explain the actual decision in this case.  That point serves to confirm, we would submit, that this judgment is in direct conflict with the earlier judgment in SZMOK which we submit was correct, and also in conflict with what was said by members of this Court in Eshetu.

Your Honours, there is also an issue in the written submissions concerning what standard should be applied to the notion of unreasonableness.  I do not propose to address that, but to let the written submissions speak for themselves.

FRENCH CJ:   Thank you, Mr Bennett.  Yes, Mr Boccabella.

MR BOCCABELLA:   Your Honours, the difficulty with the applicant’s case is the proposition that these tribunals do not have to apply natural justice and do not have to apply procedural fairness.  At the end of the day, your Honours, the Migration Act was amended in 2007 to specifically require that the tribunals do in fact behave in a way that is just and fair, and I submit indeed the way it was described in the decision of SZMOK that that is exactly what it is meant to do; in other words, to reinstate general provisions of procedural fairness and natural justice. 

Your Honours, it is convenient to look at the applicant’s book of authorities, and if I could take you to tab 1 on page 141 where I submit it is all very clear where it refers to the conduct of review.  Now, bearing in mind of course that subparagraph (3) was inserted as an amendment, and I will take you to what the Minister in the explanatory ‑ ‑ ‑

FRENCH CJ:   Are you taking us to section 357A of the Migration Act

MR BOCCABELLA:   Yes, subparagraph (3).  Your Honours, under a provision under a bold heading which says “Exhaustive statement of natural justice hearing rule”, I submit that it is not an abolition of the rules of natural justice; it is an exhaustive statement of the natural justice hearing rule.

FRENCH CJ:   I suppose the question we are concerned with today is not necessarily what is the correct answer but whether there is an important question of principle that is raised by the approach that has been taken by the Full Court in this case.  One of the important points made by Mr Kennett is there appears to be a conflict between Full Courts and also a tension between what the Full Court said in this case and what was said by the High Court, albeit in somewhat different statutory circumstances in Eshetu.  So the question is not necessarily was the Full Court right, but does the decision raise a question of principle which warrants the grant of special leave.

MR BOCCABELLA:   Yes.  Your Honour, could I quickly then take you to Eshetu?  First of all, could I take you to page 621 – and I am for convenience looking at the applicant’s application book in tab 3 – and that sets out section 476 as it stood at that time.  Now, you will see that the difficulty that the applicant had in Eshetu was that he had to construct an argument which somehow repackaged or indeed panel beated an argument of natural justice into that general provision about being just, fair and quick, because this provision on page 621 specifically took away the breach of the rules of natural justice, and then under subsection (1)(a) the applicant in Eshetu – or the respondents sought to argue that the procedures were not being followed, which inevitably was a very difficult argument.  Then if one goes to page 643 where his Honour Justice Lindgren gave a very powerful and logical set of full facts which ‑ ‑ ‑

FRENCH CJ:   This is the quotation from the passage in the judgment of Justice Gummow?

MR BOCCABELLA:   Yes, that is right.  Each one of those four points disappears once section 476 goes away.  If we go through them quickly one by one - and particularly with the enactment of the amendment in 357A, his Honour Justice Lindgren correctly pointed out that these may be inconsistent.  Well, that inconsistency is resolved by the amendment because it says justice and fairness are exhaustive statements.  So if there is a conflict between being economical, informal and quick, and just or fair, what the amendment says, just and fair prevails, so that argument is not there. 

The procedural issue again is only a point when one is trying to panel beat one’s argument into alleging it is a lack of procedure and not of natural justice.  Of course the third point is pointing out that natural justice arguments cannot be raised and what his Honour there was really saying, you cannot really do them collaterally, and of course the fourth point follows as well.  So, your Honours, important as the decision of Eshetu was, it is now of historical significance and need not bother this Court as an important principle as far as applying the principles of natural justice today.

On the issue of SZMOK, the answer to that point, I submit, is amply addressed on paragraph 18, if I could take you to that, again for convenience using the applicant’s list and tab 4 at page 432.  Bearing in mind, your Honours, that section 422B(1) and 422B(3) are the equivalent of the respective provisions in section 357A, indeed it is best to read that with the previous sentence in paragraph 17:

Thus, s 422B(3) was not intended to qualify or cut down in any way the express statement in s 422B(1) . . . The unequivocal statement in s 422B(1) of the exhaustive nature of Div 4 renders it unarguable that some other requirements of fairness are to be implied.

Then it goes on to say:

However, while the effect of s 422B(1) was to make Div 4 an exhaustive statement of the rule, there was nothing in Div 4 to indicate that any of the procedural powers contained in it were to be used fairly.

Accordingly, as their Honours observed putting it in context:

Accordingly, it was possible that those powers could be exercised used in ways that were not fair.

Now, my learned friend’s argument of course would win possibly in the absence of the amendment that their Honours were talking about in this case, but it does not become a conflict when one reads the next sentence which says:

Section 422B(3) might therefore be understood as restoring fairness and justice as a procedural concept.  In those circumstances, the requirement that the tribunal act in a way that is fair and just does not refer to substantive notions of justice or fairness –

In other words, one cannot argue that the decision is just not just or the decision is just not fair, but as their Honours correctly point out –

but is more usefully to be compared with the content of the words “justice” and “fairness” in the expressions “natural justice” and “procedural fairness” –

So their Honours correctly point that once Parliament enacted that subparagraph (3), it indeed intended to restore procedural fairness and natural justice to all the powers to be exercised in this Division.  Now, one of those powers of course is the power to adjourn and that power is found on page 148 of the first tab, and so obviously if one reads that passage of SZMOK with the power to adjourn under section 363 which is in that Division, what their Honours were saying in SZMOK simply was that that power to adjourn must be exercised in accordance with the general principles of natural justice and procedural fairness, in my submission, not changing the general law in that respect.  So one reads paragraph 18 then with the paragraph referred to by my learned friend on page 58 of the application book, namely paragraph 28, and one can see really there is no difference between SZMOK and this decision of Li, if I could take you to that paragraph 28 where their Honours say:

On reflection, and with the benefit of expressly considering both SZMOK and SZGUR, we consider that this is the better way to view the prescriptions for “fairness” found in s 353 and s 357A(3).  Even if these sections are only declaratory, they are not, in our respectful opinion, thereby to be consigned to the status of aspirational statements, as opposed to requirements.

Indeed, their Honours in SZMOK were not really saying that in paragraph 18.  They were recognising that concepts of natural justice and procedural fairness do apply to the powers to be exercised in that Division.  So it goes on to say:

It is just that, as with the general law error ground, neither can have any particular content divorced from the circumstances of a particular case or the statutory context –

Now, your Honours, therefore it is not a special leave point.  It is a natural progression.  It is a natural evolution of the common law.  The Federal Court is best able to work out these matters.  Your Honour, a couple of points my learned friend raised akin to the world may end if this stands.  My learned friend submitted that this will lead to courts delving into the merits.  Well, of course it will not.  They will simply delve into whether the particular tribunal accorded – or made the decision consistent with the principles of natural justice and fairness and, your Honours, that is what the common law has been doing for a couple of hundred years.  Obviously ‑ ‑ ‑

FRENCH CJ:   To exercise a discretion to adjourn or not to adjourn adversely to somebody does not immediately seem to me to raise an issue of fairness, just because that means that the person is not able to bring a piece of evidence they might otherwise have wanted to bring, a piece of evidence which was not in existence at that time.

MR BOCCABELLA:   Well, your Honour, except if without that piece of evidence the case is doomed to fail.

FRENCH CJ:   That may be so, but it is a question of whether it is fair or not, whether the exercise of the discretion was in some way unfair.  If one is talking about a straight importation of the rules of natural justice, there is no breach of the hearing rule.  There is no issue of bias or apprehended bias.  What else is there?

MR BOCCABELLA:   Your Honours, it was conceded by my learned friend although, to put it in context, the concession was not clearly that in all cases the refusal of adjournment is of course a breach of the rules of natural justice but it was, I submit, conceded and their Honours recognised that in I think paragraph 7 which I may turn up in a moment, whereby it is in accordance with longstanding common law principles which are referred to by their Honours in Bhardwaj that a refusal of adjournment in some cases would lead to a denial of natural justice.  Now, if an applicant necessary to meet the time of decision criteria does not have the appropriate certificate because of circumstance in effect beyond that applicant’s control, in other words, another body has made an error and they are waiting on that, then it would be unfair, I submit, not to allow the adjournment to take place.  Now, it would obviously if there was a strong hurdle but I submit the hurdle in this case is amply met.

FRENCH CJ:   Anyway, your answer basically is the Full Court got it right?

MR BOCCABELLA:   Of course, and there is no point because whether an adjournment amounts to a breach of the rules of natural justice is to be determined by the courts from time to time and their Honours Justice Gaudron and I think Justice Kirby as part of – no, not Justice Kirby because they are in the minority – but her Honour Justice Gaudron in

Bhardwaj amply pointed that out, that an adjournment can be a basis for finding a breach of the rules of natural justice.

Your Honours, I should take you to that point if you would bear with me for a moment, on page 107 of the application book, where their Honours Justices Greenwood and Logan representing the plurality judgment went through those issues and observed of course that an adjournment can indeed be a basis for denying natural justice, and on page 105 of this book I set out the argument that there almost had to be in this particular case six separate factors which led to the adjournment not being granted unfairly:  the Trades Recognition Authority had wrongly determined the fresh skill assessment; its own guidelines had been breached; the first respondent actually lodged an application for review; the TRA had simply made some what appeared to be arithmetical errors of failing to read some of the material; the MRT ought to adjourn and wait until the outcome – nothing turned on waiting a short period; there was no reason to expect an inordinate delay.

So one could not just get up in any court and say we need an adjournment, we have not got this.  But, your Honours, there would be many cases, even in the most well‑equipped set of chambers or indeed solicitors, where an error has been made, where a document has to be procured which can easily be procured, where people wait.  Now, I submit in those cases obviously with appropriate safeguards for costs and all those sorts of things that ordinarily a court would grant an adjournment in those circumstances unless there was some special injustice, and there would be no reason why they would not do so here. 

But these judgments are best left to the Federal Court.  They have almost become an expert court in this area of law.  They see these matters all the time and, your Honours, they seem to have addressed the issue comprehensively, looked at the authorities and indeed, to put my learned friend’s concession in as neutral a light as possible, the failure to adjourn can amount to procedural fairness in some cases.  Your Honours, unless I can assist you any further, those are my submissions.

FRENCH CJ:   Thank you, Mr Boccabella.  We will not need to hear from you in reply, Mr Kennett.  There will be a grant of special leave in this matter.  Half a day to a day?

MR KENNETT:   Yes, your Honour.

MR BOCCABELLA:   Yes, your Honour.

FRENCH CJ:   Yes, thank you.  The Court will now adjourn.

MR BOCCABELLA:   Your Honours, the applicants agreed to pay the respondent’s costs of this application and the other application.  I would therefore seek an order for costs of this application.

MR KENNETT:   I do not know whether an order is necessary.  The undertaking is there in the written outline.

FRENCH CJ:   Yes, I think the undertaking should suffice.  The Court will adjourn to reconstitute.

AT 11.12 AM THE MATTER WAS CONCLUDED