Minister for Immigration and Citizenship v SZGIZ

[2013] HCATrans 315

[2013] HCATrans 315

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S137 of 2013

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Applicant

and

SZGIZ

Respondent

Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 DECEMBER 2013, AT 11.21 AM

Copyright in the High Court of Australia

MR G.R. KENNETT, SC:   May it please the Court, I appear with MR P.M. KNOWLES, for the applicant.  (instructed by DLA Piper Australia)

MR S.E.J. PRINCE:   May it please, your Honours, I appear for the respondent.  (instructed by Parish Patience Immigration Lawyers)

FRENCH CJ:   Yes, Mr Kennett.

MR KENNETT:   Your Honours, this case presents an issue concerning the construction of section 48A of the Migration Act which erects a bar to what one can perhaps loosely term repeat protection visa applications.  The issue, we say, is one of considerable importance to the administration of the Act because of the number of other applications whose fate depends on it and the potential that it creates for further visa applications to be made by persons previously thought to be barred from doing that.  In that connection we rely on the affidavit of Ms Larkins, which is at pages 108 to 109 of the application book.

The issue is also of some potential broader interest in that it involves questions about the significance of inclusive language in a statutory definition and the proper approach to take when construing a provision of an Act in which a defined term is used.  Finally, there is, as we note in paragraph 24 of our outline at page 105 of the application book, now some conflict amongst the Federal Court authorities as to how this particular section works.

As to the first of those considerations, I should inform the Court that the significance of this matter to the administration of the Act may be very much diminished, indeed, possibly eliminated, by two pieces of legislation currently before the Parliament.  One of those is behind tab 10 in the bundle of material which we have given the Court.  At page 3, that is, Arabic 3 rather than Roman, of that one sees in clauses 4 and following the proposed repeal of the provisions which provide for protection visas to be granted on the basis of what is commonly termed complementary protection grounds.

One might also note in the same piece of legislation clause 20 on page 5, which makes it clear that there is no grandfathering of that proposed amendment; indeed, the converse is intended to apply to applications for visas already on foot.  The consequence if that is enacted would seem to be that any application for a visa invoking only so‑called complementary protection claims would either be invalid or at least doomed to fail and that would obviously very much reduce the practical significance of the constructional issue which lies at the heart of this case.

FRENCH CJ:   To cases pending up to the time that that law came into effect, if it comes into effect.

MR KENNETT:   Yes.

GAGELER J:   Where would the amendment to section 48A leave your construction point?  Would it still arise on 48A as amended?

MR KENNETT:   It would still arise on 48A as amended by this Bill, your Honour, but there is another Bill which has only been introduced – I should say the first Bill that I have just shown your Honours I understand has been passed by the House of Representatives has not yet reached the Senate.  We have given to the Court officer a few moments ago – I hope it has reached your Honours – copies of the Migration Amendment Bill 2013, the number is blank, a rather more prosaic short title than the other piece of legislation has, and in that Bill, Schedule 2, which begins on page 13, would make some particular amendments to section 48A directed at reversing the effect of the Full Court decision in this very case.

FRENCH CJ:   The first problem is we are in an area of speculation, are we not?

MR KENNETT:   We are, your Honour.  I thought it was ‑ ‑ ‑

FRENCH CJ:   I have never been sure that it is appropriate to have regard to what might become the law in determining a special leave application.

MR KENNETT:   I wanted to inform the Court of those matters simply by way of acknowledging that while the issue is of very great importance to the Minister and the Department now as we speak, there is some possibility – one cannot say what possibility – that that proposition will cease to be correct at some point in the coming months.  That is all that one can say about it and I simply leave it there.

The facts of the present case are very simple.  The respondent made an application for a protection visa in March of 2005, claiming that he was owed protection obligations under the Refugees Convention.  At that time section 36 of the Act was in the form which one can see, among other places, extracted in the judgment of the federal magistrate at page 19 of the application book, paragraph 17. 

The application was refused and the refusal was upheld by the Tribunal.  Essentially, the respondent was not believed on his claims.  In October of 2012 he lodged a new application for a protection visa.  At that time section 36 had been amended and was now in the form that appears behind tab 1 in our bundle of materials at pages 50 and following, and the crucial difference, of course, is that at page 51 subsection (2) now includes the complementary protection criterion as a means of satisfying subsection (2).

The actual application is not in the material but the Full Court describes it as being based on complementary protection grounds, which is to say – and this is not disputed – the claims advanced in the application were limited to an assertion that the respondent came within paragraph (aa) and the application was described by his advisers as being made under that paragraph.  The question that arises is whether that 2012 application is subject to the disqualification in section 48A(1) which your Honours can see again behind tab 1 at page 71.

The phrase “application for a protection visa”, which is defined for the purposes of this section by subsection (2) over the page, appears twice in subsection (1).  In paragraph (a) it refers to the earlier application which triggers the subsection and in the last part of subsection (1) the same phrase refers to the new application that is precluded by the subsection.  The term is defined in the same way for both purposes and, thus, as we apprehend the same meaning in both places.

The way that the Full Court approached the interaction between subsection (1) and the definition can be seen in paragraph 29 of their Honours reasons on page 77 of the application book, and that was by inserting into the text of subsection (1) what their Honours conceived to be the relevant words of the definition in subsection (2).  The way that their Honours – we do not quibble with the approach of reading in the definition in that way, but to read in only part of the definition as their Honours did leads, in our submission, to an error of a fundamental kind.

Their Honours at paragraph 32 quoted your Honour Justice Gageler, saying that the task of statutory construction has to begin and end with the text, but – sorry, that is paragraph 34 – but their Honours’ approach, we submit, is at odds with the text, firstly, or perhaps most fundamentally, in that it is not sufficient to insert part of the definition of a phrase into the operative provision in order to construe that provision. 

The whole of the definition must be read in, including, we would say, all of its alternatives and especially including its chapeau, and here, as we have emphasised in writing, the chapeau is expressed in inclusive rather than exhaustive language, meaning that what needs to be read in or inserted into subsection (1) is the ordinary meaning of the phrase plus the contents of the various specific paragraphs in the definition.

Now, the Full Court rejected our argument to the effect that that was a matter of significance.  The reasons why their Honours did that appear at pages 89 to 90 of the application book, paragraphs 67 to 72.  We have taken issue with that in writing and we make four points about it in summary.  Firstly, contrary to what seems to be their Honours central proposition at paragraph 69, the phrase “application for a protection visa” does have a fairly clear and easily identified ordinary meaning.  It is a phrase used in several other sections of the Act, including, for example, section 48B behind tab 1 at page 72, section 50 at page 74, section 501E which is also in there at pages 328 to 329.

In those contexts the legislature has not bothered to define the phrase for the purposes of those provisions, which reflects what we would say is a correct understanding that even though the thing that it describes is a purely statutory event or phenomenon, its meaning considered on its own is, nevertheless, tolerably clear; tolerably clear especially given that there is a detailed statutory process for applications, so one can see what that means, and given that section 36 expressly establishes a class of visas to be known as protection visas – that is page 50 behind tab 1.  So one can see fairly clearly what a protection visa is in the context of the Act.  So there is contrary to their Honours’ proposition, we would say, an ordinary meaning that can be easily given to this phrase.

Secondly, if one leaps through the definitions in section 5 of the Act, one sees that many of them, perhaps most, use the word “means” but a handful of them use the word “includes”.  Examples are the definition of “enter” on page 10 and the definition of “detain” on page 9, and it is to be presumed, we would say, that those differences in language reflect a thought process that they are deliberate differences.

Thirdly, this is not a case, we would say, where the use of inclusive language has no significance because the matters included in the definition do not go beyond what the concept would already include.  Paragraphs (a), (b) and (c) of the definition in their terms refer to applications for earlier forms of recognition as a refugee which predate the creation of protection visas and which would not be within the ordinary meaning that the phrase would have.

Fourthly, we would say that the legislative history is significant here.  The original text of section 48A as inserted in 1995 is behind tab 5 in the bundle of materials at page 9, and it begins at about point 3 on page 9.  If one looks at that, one sees the inclusive language that remains in the definition, but one also sees that the only specifics included are paragraphs (a), (b) and (c), the older forms of application for recognition predating the creation of the protection visa as a class. 

None of those as a matter of ordinary language would be said to be applications for protection visas, so that the work that the original provision was doing was wholly inclusive.  The language of the chapeau was therefore clearly, we would say, intended simply to add those specific matters to an underlying meaning that the phrase has.  That language is unchanged and we would submit that its meaning is not altered as a result of other things being included in the list underneath it. 

The forerunner of the current paragraph (aa) which was of significance in this case was two paragraphs numbered (aa) and (bb) that were inserted in 2001.  The provision inserting them is behind tab 6.  It is clause 4 of the Bill on page 3.  The insertion of that pair of paragraphs was an attempt to overcome the effect of the decision of the Full Court of the Federal Court in Dranichnikov which we discuss in paragraph 7 of the reply submissions, page 121 of the book.

In that case, Mrs Dranichnikov had applied for a visa on the basis that her husband was a refugee and the Minister argued that that was an application for a protection visa, thus engaged the section and prevented her making an application of her own, but at the relevant time visas for spouses were not provided for as part of the class of protection visas in section 36.  They were only provided for in the regulations, so that the Minister’s argument in that case failed and the insertion of paragraphs (aa) and (bb) which later transmogrified into the (aa) that we see in the current version was part of an attempt to overcome that result by confirming that an application by either an putative refugee or by a spouse was to be regarded as an application for a protection visa and to be so regarded at both stages of subsection (1) that I referred to earlier.

To the extent that the specific examples contained in the definition now overlap with what would otherwise be the ordinary meaning, we would say that they are to be regarded in the light of that history as simply attempting to confirm that meaning.  As we note in paragraph 21 on page 104, there have been a number of decisions in the Federal Court since 2001 either holding or assuming that following those 2001 amendments a person who previously applied as a spouse cannot make a second application based on their own claims and vice versa.

GAGELER J:   Now, Mr Kennett, footnote 17 mentions a case, SZRKF.  I have not looked at that but was that a Full Court decision?  There is a reference to special leave having been refused, the second‑last issue.

MR KENNETT:   Yes, I see.  We apprehend not, your Honour, because it is listed as FCA, so probably – well, it would appear a single judge exercising the appellate jurisdiction.

GAGELER J:   So there is no conflict of Full Court authority?

MR KENNETT:   Well, we include in that list Soondur, that is the first case, which was a decision of the Full Court, 122 FCR.

GAGELER J:   That is in respect of section 48A in a different form, is it not?

MR KENNETT:   That is section 48A following the 2001 amendments, as I understand it.  So not in exactly the same form that we now see, but nevertheless in a similar form that have the inclusive chapeau followed by a series of specific examples which might be thought to cover a great deal of the ground that the ordinary meaning – perhaps all of the ground that the ordinary meaning would otherwise have, so not this exact version but the version following the 2001 amendments.

FRENCH CJ:   Can you just tease out for me a little this concept of ordinary meaning?  Have you encapsulated anywhere what you say the ordinary meaning is?

MR KENNETT:   We say that the ordinary meaning is an application for a visa of the class established by section 36.  We say that because section 36 says that there is a class of visas called protection visas.

FRENCH CJ:   Well, it is a statutory meaning, in other words.

MR KENNETT:   It is a statutory meaning.  I call it ‑ ‑ ‑

FRENCH CJ:   It is a meaning defined by statute.

MR KENNETT:   I call it the ordinary meaning, your Honour, because it is the meaning that the phrase would, we say, have in the absence of a definition.  If one had not defined it, one had to work out what it meant from the context and the language used, that would be the meaning that one would come up with in light of those aspects of the statute, we would say.

Your Honours, I have so far been addressing what we say is the basic error in the Full Court’s reasoning.  If one accepts, however, that the Full Court was correct in only reading in one paragraph of the definition, the conclusion that their Honours express at paragraph 32, that “further” must mean “an application relying upon the same criterion” is also, we would say, textually unsustainable.  Three reasons are given for that conclusion.  First, the definition is said by their Honours at paragraph 35 to work by reference to an application that relies on one of those specified criteria.  That, we submit, is a wrong understanding because ‑ ‑ ‑

FRENCH CJ:   Well, anyway, you are getting into questions of specific error and argument now, are you not?

MR KENNETT:   I am, yes.

FRENCH CJ:   As distinct from the question whether this warrants a grant of special leave.  Perhaps we might hear from your opponent.

MR KENNETT:   If the Court pleases.

FRENCH CJ:   Yes.

MR PRINCE:   Thank you, your Honours.  The issues that my friend has just identified to your Honours really raise no issue of principle of the approach to be taken to statutory construction.  Rather, it is the result applying those normal principles to the outcome.  The point that there was some departure by the Full Court from the normal principles, for example, with reading definitions into operative pieces of legislation does not have any foundation because the Full Court dealt with the fact that they were not reading the word “includes” in at the point where they dealt with that matter. 

They were reading in the relevant parts of the Act definition to test a proposition relative to the case that was before them which they were perfectly entitled to do and the Full Court went on later on to explain why it was that the word “includes” made no difference to being read into that definition in the present case.  So that that first point about the way in which the definition is to be read really depends on the second point which is the approach to the word “includes”. 

Again, in my submission, the Full Court simply applied well‑known existing approaches to whether or not the word “includes” is to be read as an extension of a definition or effectively to be an encapsulation of a definition.  There is nothing controversial about that principle of law.  The way in which their Honours in the Full Court applied that test in this case, again, is unexceptional.  Ultimately, the Minister came up against a question of what else could “protection visa” mean other than what is in section 48A(2)?  The answer there was the same as the answer to your Honour the Chief Justice and it does not take the matter any further.

That is because if that is to be the approach and there is some residual meaning to section 48A(2) and the introductory words, then the provision in 48A(2)(aa) would be otiose, and one just would not read it in that way.  That would be to labour the word “includes” to reach a result which just is not consistent with the full text of what is defined in 48A(2).  It is unsurprising that the Full Court took the view that the inclusion of the definition in section 48A(2) was of critical importance and had that definition not been there then the result might have been different.

I will not deal with the legislation that has been introduced to the Parliament, but one could easily anticipate in any event a section which was in much simpler terms, definition section or no definition at all, which would possibly support my friend’s construction that there was an intention here to exclude any type of protection visa application as that title had been used in the Act over any period of time.  But that is not the approach that the legislature had taken. 

The Full Court were quite right to rely on the fact that that had not been the approach taken by the Parliament and the Parliament had provided itself by repeal and replacement in the 2011 legislation a new definition which encapsulated the new form of section 36(2) and it is consistent obviously with all of the policy of that section for the reasons that are outlined in our written submissions. 

Ultimately, there is no reason to read into section 48A(2) a more expansive effect than it bears on the face of the Act and as considered by the Full Court in order to exclude people from a simple consideration under a statutory process which the Parliament clearly intended to be applied to give effect to Australia’s international obligations in relation to people who had not been assessed as against those international obligations and prior to their removal from Australia potentially in breach of those international obligations.  It was the intention of the Parliament to create a transparent statutory process for dealing with that and there is no reason for excluding the closed group of people, against whom my client may be a part of, from that consideration as it stands. 

My learned friend put some store in the terms of the amendments which were brought in 2001, said to overturn or seek to overturn the approach of the Federal Court in Dranichnikov.  In my submission, that does not assist him on the facts of this case and this is not an appropriate vehicle to deal with that hypothetical situation, for this reason. 

Behind tab 7 your Honours have of the applicant’s bundle, there is a second reading speech of the Migration Legislation Amendment Bill (No 6).  If your Honours would turn to page 30423, which is a penultimate page in the tab, your Honours will see where the then Minister dealt with the purposes of the amendments to which my friend makes reference and upon which he relies, and the third‑last paragraph in the first column on that page makes it plain that the mischief to which the section was directed as it stood then was to prevent people making deliberate choices not to make an application on a particular basis in circumstances where they could have done so but did not and made a forensic choice to leave themselves the opportunity to make an application later.

That is plainly not the situation that my client was in and on no view is that correct.  Indeed, the hypothetical example given by the Full Court, which is relied on heavily by the Minister, is not in that category either because the hypothetical example posited involves a situation where the person could not have made a family claim at the time that she made her protection visa claim because her family was not in the country at the time that it was made.

So the focus of the legislation, taking away a valuable right as it does, is to do so in a way which prevents abuse and to do so in a way which prevents circumstances arising where people make those forensic decisions.  It is not addressed to the circumstances of this case where no such forensic decision could have been made in the first application.  In any event ‑ ‑ ‑

FRENCH CJ:   That is because 36(2)(aa) did not exist.

MR PRINCE:   Correct, that is right.  Indeed, 36(2)(aa) is a radical change to the nature of what is meant by a protection visa.  Focus on the title of the section without reference to the substance of the body of the section is apt to mislead because what was a protection visa before that application was inserted is a creature that is obviously different to what it is now because a person who once was excluded from a protection visa, that is a person who did not meet the Refugee Convention, is necessarily now a person who can be included in the definition of a protection visa because section 36(2)(aa) is a true alternative to section 36(2)(a) and it requires that a person is not within section 36(2)(a) in order to be within section 36(2)(aa). 

So that it is now dealing with a substantially different class of people and there is nothing in the legislation to suggest, or in the external materials, to suggest that the intention of the legislation was for that group to not have access to that statutory process of determination simply because they had failed in respect of a fundamentally different application made previously. 

Could I also just address the question of this being a closed group for a moment by reference to the current state of the law and excluding the draft or the Bill and the Bill as passed by the House of Representatives?  First, section 46(4) which is on – your Honours have extracts from the Act reproduced in the bundle provided by my learned friend’s client behind tab 1, page 67.

FRENCH CJ:   Yes.

MR PRINCE:   There already exists provision - your Honours do not have the current state of the application form before you, that would have to be dealt with if special leave were granted but there is currently clearly a power to make regulations to prescribe the way in which an application can be made which necessarily could include requiring all claims which could be made at present under this section to be brought forward. 

That would make it ultimately an application for a protection visa in respect of each of the criterion which are addressed in section 48A(2)(aa) and, accordingly, even further than the closed group that I have identified, namely those people who have never had this opportunity before, there is a mechanism within the legislation for preventing any unintended consequences that might arise from the Full Court’s decision which seems to be the focus of my learned friend’s submissions and which do not arise in this case and for which this case is not an appropriate vehicle.

GAGELER J:   So to understand your basic point, you say that the reasoning of the Full Court in the present case is confined to the narrow class of persons who now claim to be within section 36(2)(aa), a claim that they could only have made from, I think, 18 August 2012, is it?

MR PRINCE:   March 2012, I thought, your Honour.

GAGELER J:   Anyway, some time in 2012.

MR PRINCE:   Some time in 2012, yes.

GAGELER J:   And who had previously claimed to fall within section 36(2)(a).

MR PRINCE:   Yes.

GAGELER J:   Now, I do not think the Minister’s affidavit goes to identifying the number of persons within that narrow class.

MR PRINCE:   It does some way.  It says, I think, there is 190 applications before the federal magistrate.

FRENCH CJ:   It is page 108, it says 194, I think:

seeking review of protection visa applications which were refused on the basis that the application was invalid –

So it does not tell us whether they are people who – or what subset of those are people who did not have the opportunity to make a ‑ ‑ ‑

MR PRINCE:   No, it does not, and – but even assuming that all of them are in that category, there is 194 and 18 applications lodged since 3 July.  That is not, in the scheme of things, an overwhelming class of people.

GAGELER J:   Just following through your submission as to the narrow ambit of the Full Court’s reasoning, if it is so confined, then you say, as I understand it, that there is no conflict between this decision and any previous decision of the Full Court.

MR PRINCE:   Precisely.  These factual circumstances did not arise in those cases in footnote 17, and we have set out why in our written submissions.  It is the extended hypothetical that my learned friend puts in his submissions which sets up the conflict, but that extended hypothetical does not arise from the Full Court’s decision.  The Full Court’s decision was confined in the way that it was, even in the hypothetical example that it gave, and it was focused on the opportunity of applicants to have raised a point in their first application which is then raised in the next application, and the construction of the Full Court is just not attended with sufficient doubt.   It is a well‑reasoned, closely analysed construction of what is a very complex piece of legislation and no issue of principle turns on it and it is open and it is right.  Thank you, your Honours.

FRENCH CJ:   Thank you, Mr Prince.  Yes, Mr Kennett.

MR KENNETT:   Your Honours, firstly, my friend puts it that the Minister came up against the question what does the inclusiveness in the definition add in the light of what is already in the specific paragraphs.  A powerful point but not one upon which the Full Court placed any weight.  Their Honours’ rejection of our submission seems to have been centred on the fact or on the proposition that there was no ordinary meaning because it was an entirely statutory construction.  That is a wrong proposition for reasons I have sought to outline in‑chief.

But to turn to the argument if it were put against us, as we apprehend it would be, there are a number of matters to identify.  Firstly, it may be practically the case that everything or almost everything contained in the ordinary meaning of the phrase is also contained in paragraph (aa), but that is not necessarily so because section 36 may be amended as it has been amended from time to time without corresponding amendments to section 48A.

The inclusiveness that we rely on is at the very least an answer to the argument that my friend advanced in the Federal Magistrates Court which was to look at the detail of the language of paragraph (aa) and say that the description of the criteria there does not match the description of the criteria in the current section 36.  The inclusive language at the very least, we would say, overcomes arguments of that kind.  The further effect that it has, we would say, is that it serves to emphasise that what is being defined here is a single concept including a number of specific instances and not a set of parallel concepts. 

So that the questions, when one puts that into subsection (1), must be firstly, simply, was the earlier application within the concept, the single concept, and is the proposed new application within the single concept?  That denies, we would say, the correctness of the Full Court’s approach which was to disaggregate the concept and ask whether the new application was relying on the same ground as the earlier application.

My friend emphasises that the hypothetical example relied on by the court and the factual situation of his client are not situations where deliberate choices were exercised at the early stage not to rely on a particular ground.  That may be so, but the constructional principle that emerges from their Honour’s reasoning, we submit, is clearly not limited to such cases. 

There is no basis, if one accepts that the section works in the way that their Honours decided that it works, there is no textual basis, we would submit, for limiting it to what one might think were those more deserving classes of case.  It simply applies the bar only if the two visa applications, the old one and the new one, are put on the same ground.

My friend refers to the changes in section 36 and noted that the title of the section – one needed to look past the title of the section.  We do not rely so much on the heading of the section as on the terms of subsection (1), of course.  Subsection (1) establishes a class of visa and tells us that it is to be referred to as a protection visa.  That, we say, is very significant, where references to the concept of a protection visa appear elsewhere in the Act.

Finally, some reference was made to the notion of making – or to a potential to have a requirement that an application be made in respect of all of the criteria which reflects, as we understand it, the understanding on which their Honours in the Full Court proceeded which was that an application for a protection visa could be effectively limited to one or other of the grounds in section 36(2).  We say that is an incorrect understanding, with respect.  It is contrary, firstly, to the terms of paragraphs (a) and (aa) of section 36(2) which make it plain that the decision‑maker cannot find (aa) to be met without having first concluded that paragraph (a) is not met.

It is also inconsistent with section 45 which requires an application to be made for a visa of a class, and it leads to odd consequences.  If one takes, for example, an applicant who claims only to be a refugee who fails on that claim – I see my red light has gone on but I only ‑ ‑ ‑

FRENCH CJ:   Finish the sentence perhaps, Mr Kennett.

MR KENNETT:   I will make it a long sentence.  If the applicant fails on that claim because of the absence of a Convention nexus, say, there might be a strong possibility that he or she would satisfy (aa), the complementary protection ground.  But on their Honours’ analysis, the decision‑maker could properly ignore that possibility, indeed, maybe would be obliged to do so because the application had been framed in a narrow way and refuse the visa.  That seems to us very unlikely to be a result that the courts would uphold and it points to a basic misunderstanding, we would submit in their Honours’ analysis of the section.

FRENCH CJ:   Thank you, Mr Kennett.  The Court will adjourn briefly to consider what course it should take.

AT 12.01 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.04 PM:

FRENCH CJ:   This application raises a question of contested statutory interpretation.  In our opinion, however, it is one which does not raise any question of general importance which would warrant the grant of special leave.  Special leave will be refused with costs.

AT 12.04 PM THE MATTER WAS ADJOURNED