Minister for Immigration and Ethnic Affairs v Chaudhary

[1994] HCATrans 68

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney        No S58 of 1994

B e t w e e n -

MINISTER FOR IMMIGRATION
  AND ETHNIC AFFAIRS

Applicant

and

ASHOK KUMAR CHAUDHARY

Respondent

Application for special leave
  to appeal

MASON CJ
DEANE J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 OCTOBER 1994, AT 10.50 AM

Copyright in the High Court of Australia

MR J.J. SPIGELMAN, QC:   If the Court pleases, I appear with MS R.M. HENDERSON, for the Minister.  (instructed by the Australian Government Solicitor)

MR G.T.W. MILLER, QC:   May it please Your Honours, I appear with my learned friend, MR J.R. YOUNG, for the respondent.  (instructed by Newman & Associates)

MASON CJ:   Yes, Mr Spigelman.

MR SPIGELMAN:   Your Honours, the issue here is providing some content to the well known principle in Your Honour the Chief Justice’s judgment in Peko‑Wallsend about when, in what circumstances, a decision-maker is bound to take into account certain considerations.

MASON CJ:   You are not suggesting the judgment is without content, are you?

MR SPIGELMAN:   No, providing detailed content, in the sense that whilst the principle may be applicable and turn only on the circumstances of each particular statute a more general issue has arisen, primarily in the context of the Migration Act but applicable in other areas, in circumstances where such a discretion is to be exercised in accordance with either the public interest or the national interest or something of that character, whether expressly or by reason of construction of the scope, purpose and nature of the legislation in question. 

The issue is this - this is what I meant, Your Honour, by providing some more detailed content - in such circumstances, is it permissible in accordance with the principles of judicial review for a court to provide a check list of matters capable of constituting items of national interest or public interest and, as it were, tick them off and say, “Well, the decision- maker didn’t look at this aspect of the national interest and he didn’t look at that aspect and that is fatal”.  What we say is that where there is a discretion of that character the component parts of the national interest are matters for the decision-maker and not matters of law which is bound to take into account, in the sense of being bound to take into account specific aspects. 

The two that arise in this case, one more prominently than others in the reasoning of the Full Court are, firstly, the question of Australia’s reputation abroad, which is the key to the reasoning below and, secondly, at the end of the judgment, a reference to more specific matters of an economic character, namely the economic benefits of the employment prospects of the applicant.

MASON CJ:   Prima facie that seems to be an important question but what about the circumstances of this case?  This arose, originally, in May 1989, when an application for permanent residence was made.  It was dealt with in July.  The matter really has been hanging fire ever since then.  It has been backwards and forwards, through the courts, back to the decision-makers, to the Immigration Review Tribunal.  Is it not really time that all this came to an end?

MR SPIGELMAN:   Yes, Your Honour, and that would be true of every such case, in a sense.  Whilst this one has gone twice to the courts - but any immigration case would have similar aspects to it by the time it reached Your Honours - we say this:  there is a general principle involved and this is a suitable vehicle.  The circumstances of the individual applicant were matters of significance for the Federal Court.  They made that perfectly clear.

MASON CJ:   But are you right in saying that any immigration case would go backwards and forwards like this case?  That statement is incredible.

MR SPIGELMAN:   No, the difference in this case is that it has come to the courts twice.  But most immigration cases now have a long process of review by a number of different levels of review.  The difference in this case is ‑ ‑ ‑

MASON CJ:   I thought the new regime was going to simplify everything.

MR SPIGELMAN:   But it has created a different form of internal review, as I understand it, Your Honour.  This is a case under the pre-1989 Act, as Your Honours know, and that, in itself, is a matter that goes to the suitability of this as a vehicle.  We appreciate that.

DEANE J:   But there is another aspect of this, is there not, and that is that the decision-maker failed to take account of the fact that the condition in 6A(1)(d) was satisfied and it seems to me, I must confess, on a prima facie impression, that the court below was quite right in treating that as a failure to take account of an obviously relevant circumstance.

MR SPIGELMAN:   What the decision-maker said was:  once one satisfies the trigger for permanent resident status, any one of the paragraphs in 6A(1), then one does not have to satisfy twice.

DEANE J:   No, not one does not have to satisfy it twice, one does not have to take account of the fact that under the statute the application could be put on another basis and is put on another basis.

MR SPIGELMAN:   Yes, and that is so.  What we say, in that respect, is that it raises the same issue of general principle as is raised by the reputation issue, namely, whether it is from the scope and purpose of the Act or from an express provision such as 6A(1)(d), does such provision mean that the decision-maker is bound to take into account that subject-matter as a subject-matter of national interest, because 6(2) is not qualified by 6A(1)(d), it is simply a qualification for getting into the discretion in 6(2).

TOOHEY J:   But that is not the way that it worked, is it, Mr Spigelman?  I thought that what happened, in effect, is that the decision-maker said, “The present respondent has met the criteria under one head but in the exercise of my discretion I propose not to accede to the application.”.

MR SPIGELMAN:   Yes. 

TOOHEY J:   Your argument seems to be that if there are two bases available it is enough for the decision-maker to say, “Well, the applicant has satisfied the first basis but in the exercise of my discretion I propose to refuse the application and therefore I needn’t turn to the second basis on which the application is put”.  That would be an odd way of going about it, would it not?

MR SPIGELMAN:   Do Your Honours have the Act as in force at that time?  If I could hand Your Honours copies of it.  The various subparagraphs of 6A(1) are simply triggers for the exercise of the discretion.  It was inserted in the Act in order to identify a number of circumstances in which the general discretion which had long existed in the Act could be exercised.  But we say - and this is a matter that we would seek to agitate in the appeal - is from that one does not infer a number of factors that one is bound to take into account when exercising the discretion in 6(2).

TOOHEY J:   It is not so much a matter of the factors to be taken into account, is it, it is that 6 and 6A(1) provides a number of conditions any one of which has to be fulfilled before the discretion is agitated?  But your argument seems to go along these lines, that if the applicant points to one set of conditions or, indeed, if the applicant points to two sets of conditions the decision-maker can say, “Well, yes, the first one, true, has been met but in the exercise of my discretion I’ll not accede to the application, therefore I needn’t turn to the other basis upon which the application is put”.

MR SPIGELMAN:   There is authority in the Federal Court, and this is twofold:  Tang, which is referred to in the judgments below and also Maitan, which indicate that once one satisfies one of the triggers in 6A(1), one does not need to satisfy another trigger. 

TOOHEY J:   I understand that but that is ‑ ‑ ‑

MR SPIGELMAN:   That is the only purpose of 6A(1).

TOOHEY J:   But that is not the way you are putting it, is it?

MR SPIGELMAN:   No, the way I am putting it is that once one gets into 6(2), on any basis, one is not bound, as a matter of law, to look at the subject-matters in paragraphs (a) to (e) or, for that matter, any other subject-matter, that it is an unconfined discretion to be exercised in the national interest.  If one looks at 6A(1)(d) and the terms of it they are simply that, being the holder of a temporary entry permit, he is authorised to work in Australia. 

What the Full Court said was that one infers from that provision that there is an obligation on the decision-maker to take into account, as it were, the economic benefit to Australia from the person’s work experience and capabilities.  Obviously, that is a matter permissible to be taken into account, the issue whether the decision-maker is bound to take it into account, whether by reason of the fact that 6A(1)(d) is a trigger or for any other reason coming from the scope, purpose and nature of the Act. 

Our principal submission is that with respect to the matter that the Full Court inferred from 6A(1)(d), that is not a matter that he is bound to take into account under 6(2).  He could, but he is not bound to.  There are references in the judgment to the applicant’s economic circumstances.  When I say “the judgment”, not the judgment of the court but the decision-maker.  But there are references of that but it is perfectly true there is no section in which he says, “Here are the benefits to Australia from his particular employment”.

DEANE J:   But would you deny that if someone comes through one of the doorways, as you put it, and that is the only doorway, the decision-maker is entitled to disregard the fact that he has come through that doorway?

MR SPIGELMAN:   Not to disregard it but that does not require him, as a matter of law, to look at any particular matter, perhaps outside the doorway.

DEANE J:   I follow that.  Then, the next proposition is if someone comes through two doorways and, depending on which one the decision-maker deals with, he has to take account of the fact that he came through that doorway, how could it conceivably be said that the decision-maker does not have to take account of each doorway through which the applicant comes and upon which he or she relies?

MR SPIGELMAN:   Our submission is, once you are through the doorway the discretion is unconfined.

DEANE J:   Then, I follow, but all I was putting to you is you must really succeed on that before the Court would be justified in granting leave for this particular case to be further strung out.

MR SPIGELMAN:   Save in this respect, Your Honours:  if one looks at the reasoning of the court on this second aspect of it, it is true that at the end of the judgment they referred to both grounds but in their reasoning it was interrelated with the first; namely, they did not say this would be a separate ground, they said, “Well, the decision-maker didn’t, as it were, have the opportunity of looking at them together”.  So, in that respect, it is not an alternative, though at one point in the judgment they do say “both grounds”.

DEANE J:   What I was putting to you, which you may be able to dispose of, is what if one takes the view that whatever might be said about the main point you want to litigate, that second ground is plainly correct?

MR SPIGELMAN:   If Your Honour regards it as a second ground and not a further particular of the main point and Your Honour finds it plainly correct, then there are two matters and if I can only get up on one of them the Court would not regard this as a suitable vehicle.

DEANE J:   Except why should this particular gentleman have to have his case made the subject of this exercise at this point of time if he correctly succeeded in the Court below?

MR SPIGELMAN:   If he did, Your Honour, on this other ground, and it is another ground rather than a further particular, we say that what the Full Court did was to, as it were, have two particulars of public interest in circumstances where it its general discretion did not permit it to have a check list of public interests.  The first one was that one about Australia’s reputation which, on any view, is of more wide-ranging significance than the second; and the second is more particular to the scheme of the migration legislation.

TOOHEY J: I must say, I did not read the judgment in that way but rather that why the Full Court sent the matter back was simply because of the failure by the decision-maker to have any regard to section 6A(1)(d), whatever the content of that might be, which I accept is a matter, no doubt, for argument. Is that not the basis upon which it went back?

MR SPIGELMAN:   This is the briefest part of Their Honours’ decision and it is not as fully reasoned as the other ground about Australia’s reputation.  But what the decision-maker did was to say, “Once you qualify on one of the gateways you don’t have to qualify on the others and my discretion is unconfined.  Once I get into 6(2) I can take into account anything, including matters which are within the gateways and including matters that are beyond the gateways.”, and he did what Justice Beazley referred to at page 19 of the application book; that is to say:

It seems to me, that in circumstances where the delegate determined that the relevant aspect of the national interest was the cost to the public health system, as she was entitled to do -

That is at lines 6 to 7.  That statement is a statement which, in effect, says, the decision-maker was entitled to say that was the aspect of the national interest, and the other matter, obviously, was the matter of compassion, and did not take into account, as it were, and weigh in the balance, matters of the employment history or skills et cetera of the individual applicant, only the father.  In that respect, we say, the second leg is an application of the principle for which we contend.  What the decision-maker did was to say, once you are through a gateway I can take into account what I like.  That excludes any obligation to take into account the content of other gateways.  If I cannot convince Your Honours that that is simply another application of the general principle, and that the same principle covers both heads, as it were, then I can see the force in the submission that it is not a suitable vehicle by reason of the second ground. 

If Your Honours please, I have made references in our submissions to the differences in approach in the Federal Court on this issue.  I do not believe I should take Your Honours through the details.  I indicated to Your Honours I would read but I do not propose to do so.  We submit there is a difference of approach in the Federal Court on this issue, and the question before Your Honours is whether this is a suitable vehicle to determine.

MASON CJ:   Yes, thank you, Mr Spigelman.  The Court will take a short adjournment to consider what course it will take in this matter.

AT 11.10 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.23 AM

MASON CJ: The Court need not trouble you, Mr Miller. The question sought to be raised in the proposed appeal is one which in an appropriate case might well warrant the grant of special leave. But in the present case, the circumstances are such as to persuade us that it would be unfair and unjust to the respondent and his family to subject them to the further delay in the reconsideration of the case that would be involved in an appeal to this Court. The proceedings now before the Court arose out of an application for permanent residence lodged on 10 May 1989 by the respondent and his family and the decision on that application by an officer of the Department of Immigration. Since then, the matter has travelled backwards and forwards between the courts, the decision-maker and the review authorities. In addition, in this case the decision‑maker did not turn her mind to, or take into account, a further and distinct basis of the application for permanent residence, namely the satisfaction of the conditions specified by section 6A(1)(d) of the Migration Act 1958 (Cth). We are not persuaded that there is a reasonable prospect that the applicant would succeed in establishing that the decision-maker was correct in this last mentioned respect.

That being so, we do not consider that, in the circumstances, this case is a suitable vehicle for the determination of the principal question sought to be raised.  The application is therefore refused.

MR MILLER:   We seek an order for costs.

MASON CJ:   You do not oppose that, Mr Spigelman?  The application is refused with costs.

AT 11.25 AM THE MATTER WAS ADJOURNED SINE DIE