Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 & Ors
[2021] HCATrans 217
[2021] HCATrans 217
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S74 of 2021
B e t w e e n -
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Applicant
and
CBW20
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
AUSTRALIAN HUMAN RIGHTS COMMISSION
Third Respondent
Application for special leave to appeal
KIEFEL CJ
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA BY VIDEO CONNECTION TO BRISBANE
ON FRIDAY, 10 DECEMBER 2021, AT 11.30 AM
Copyright in the High Court of Australia
____________________
KIEFEL CJ: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.
MR S.B. LLOYD, SC appears with MR B.D. KAPLAN for the applicant. (instructed by the Australian Government Solicitor)
MR J.K. KIRK, SC appears with MR J.B. KING for the first respondent. (instructed by Legal Aid NSW)
KIEFEL CJ: There are submitting appearances for the second and third respondents. Yes, Mr Lloyd.
MR LLOYD: Thank you, your Honour. The central issue in this application arises in a context where the Minister granted a temporary safe haven visa to the first respondent wrongly understanding the respondent to be an unauthorised maritime arrival. The understanding that the first respondent was a UMA was correct save for one thing, the invalidity of the proclamation of Ashmore Reef as a port under the Migration Act. If Ashmore Reef had have been validly proclaimed as a port, the respondent would have been a UMA.
It is uncontroversial that the respondent was never and is not a UMA. It is also uncontroversial that this error can be characterised as an error of law. Further, the Minister does not contend that the misunderstanding as to the respondent being a UMA was irrelevant to the decision to grant the visa, that is, it is an error of law that was a material error of law. What the Minister does contend is that the error in the port proclamation and its consequential impact upon the perception of the respondent as a UMA was not a jurisdictional error in the Minister’s exercise of power under section 195A of the Migration Act.
EDELMAN J: Mr Lloyd, your submission then basically comes down to the fact that you say that you have sighted that rare beast of a non‑jurisdictional error of law going to a decision‑maker’s state of mind that is material and, indeed, in this case, said to be fundamental.
MR LLOYD: Yes, that is what we say. We say that – if I can put it this way. In the court below, the first respondent argued that any error of law that was material was a jurisdictional error, and the Full Court characterised the error in this as “fundamental” in paragraph 57, and as “important” at paragraph 59, to the exercise of power. It was given those labels because the error was material to the outcome of the Minister’s decision.
It may be true that errors of law – jurisdictional and non-jurisdictional errors – that are not material will not justify a grant of relief. However, we wish to contend that that does not mean that all errors of law that are material are jurisdictional.
If I can take the Court to the decision of the Federal Court in Snedden. Does the Court have that handy – 230 FCR 82. There are just three passages I would like to take the Court to. The first passage is in paragraph 153, which is on page 109 of the report – 28 of the PDF, if your Honours are using that. In that case – if I just read the first bit of that:
Mr Snedden’s second basis for contending that any error involving Australia’s international obligations under the Geneva Convention was jurisdictional is, in essence, that any error involving a consideration which is legal and material is thereby jurisdictional. The short answer to that submission is that once it is found that the Minister was not bound to take this consideration into account in the exercise of his discretion . . . any error relating to it will not be a jurisdictional error.
That idea is discussed in further detail in paragraphs 163 and 164, which I will not read, but we embrace that. That was on point and the Full Federal Court was taken to that proposition. We say that proposition is correct. That was a case where there was an error which could have been an error of law – it was at least treated as an error of law which informed the Minister’s discretion ‑ ‑ ‑
EDELMAN J: Mr Lloyd, this is an entirely different statute, is it not?
MR LLOYD: It is, yes.
EDELMAN J: The question of whether an error of law is jurisdictional is ultimately a question of expression or implication from the relevant statute.
MR LLOYD: Yes. We say whether or not an error of law is jurisdictional turns on whether the error of law pertains to – and when I say we say it, I mean this Court has said it – if I just use the language from the joint judgment in Wei:
Jurisdictional error . . . consists of a material breach of an express or implied condition of the valid exercise of a decision‑making power conferred by –
an Act or the Act. What we say is that means there has to be material breach of an express or implied condition, not of any law, and so here there is a material breach. There is a misunderstanding as to the validity of a proclamation, which is, we accept, an error of law, but it is not one which is an express or implied condition on the valid exercise of section 195A.
EDELMAN J: So, would your answer be any different, Mr Lloyd, if the error of law made by the Minister had involved, for example, in the consideration of section 195A, the character provisions in section 501?
MR LLOYD: I would probably need to know more, but probably not, your Honour, no, because the question of the character provision is something which the Minister does not have to take into account. What we say is under section 195A there are effectively two conditions. One is the person has to be in detention under section 189. This person was in detention under 189 as found by the Tribunal, and that is at the application book on page 7, I think, at paragraph 11. Then the second condition is the critical condition about what the Minister thinks is in the public interest. That was described in M79 by Justice Gageler at 127 as the sole criterion for the exercise of discretionary power. He said that:
the Minister thinks that [the grant of the visa] is in the public interest -
Something similar was said by a majority of the Court in Plaintiff S4 at paragraph 36. So, an error in understanding what was meant by the public interest is one thing, but we say that that – there is no assertion here that the public interest, that that test was misconstrued.
KIEFEL CJ: Mr Lloyd, would it be wrong to say that the Full Court, in effect, held that there was an implied condition that the Minister’s state of mind be formed on the basis on a correct understanding of the law?
MR LLOYD: I think that it is fair to say that that is what the Full Court found at paragraph 55. That is one way of reading it. But we say that, if that is – if the proposition is that there is a jurisdictional error - if you make an error of law in understanding correctly any legal principle that happens to be relevant to any non‑mandatory consideration, then the difference between jurisdictional error and non‑jurisdictional error falls away because ‑ ‑ ‑
EDELMAN J: But that is not what the Full Court said. The Full Court is concerned with errors of law or a correct understanding of law in the application of the test which involves a consideration of the public interest and, in the consideration of the public interest, the Minister has misapplied principles of law.
MR LLOYD: Well, he has not misapplied principles of law that govern the jurisdiction of the decision‑making.
EDELMAN J: But that is the very question to answer.
MR LLOYD: Well, we wish to have a grant of special leave so that we can contest that what is a jurisdictional error, in terms of what was said in Wei, is one which goes to a constraint on power and if, as said in Snedden, a consideration is taken into account which is a non‑mandatory consideration, something that you could take into account but you do not have to - it is clear that being a UMA is no part of a requirement for a grant of 195A, so anything that leads to that is no part of a requirement - that is just an error of law and it does not constrain the power of the Minister under section 195A.
It is a broad power, and any error of law made by him in that respect does not, we say, go to jurisdiction and we ought to have an opportunity to advance that position. We say that there is plenty of authority for that and it is consistent with other, what might be called analogous ideas, in this sense that - in a sense, there is a question as to whether or not Minister Morrison, who was the one who granted the temporary safe haven visa was…..likely go behind the validity of the port proclamation made by Minister Ruddock several years earlier.
There is authority in our submissions at paragraph 27 which indicate that generally an administrative decision‑maker is not required to go behind an administrative decision made earlier in the chain of events, unless it is invalid on its face. There is no suggestion here that the port proclamation was invalid on its face. Similarly, this Court in Kainhofer has said the same thing in the extradition context, that a magistrate undertaking a section 19 hearing is not required to form a view as to the validity of the Attorney‑General’s section 16 notice under that Act.
Also, in another but still similar context, in Ruddock v Taylor a majority of this Court said that what constitutes reasonable grounds for suspecting a person to be an unlawful non‑citizen must be judged against what was known or reasonably capable of being known at the relevant time. In that case, the officer did not know that the character cancellation was invalid and so Mr Taylor’s detention was lawful, even though there had been an anterior earlier invalidity.
That was a case in which the subject of the earlier decision, that is the visa cancellation, affected the limiting criteria of the later power, which is whether the person was an unlawful non‑citizen, but still, it was not expected – or the later decision was not invalid by reason of the earlier decision.
In the present case, Minister Morrison did not know that the proclamation of Ashmore Reef was invalid, so we say that should not inhibit his ability to think something is in the public interest. It is not a constraint on his power. This case is stronger even than Ruddock v Taylor because in Ruddock v Taylor there was the link between the two. The validity of the cancellation affected whether or not somebody was an unlawful non‑citizen. In this case, whether or not somebody is a UMA has no connection to section 195A, unless the Minister decides to consider that it does.
So, we say special leave should be granted so that the Court can explore whether, on the one hand, all legal errors that are material errors are thereby jurisdictional errors, which is what the first respondent argued below, or whether it is limited to just those errors of law relating to the conditions on the exercise of power.
In the court below – before the court below and by the court, there is reference there to statements of this Court that say that decisions should be made on a correct understanding of the law and, for example, Graham, is such a case and the Full Court refers to that in paragraph 55.
We say that when read in context, “the law” in that expression must be understood as referring to the law which imposes inviolable constraints – inviolable conditions and restraints on the exercise of power. If the first respondent is correct, then this Court – in a case such as Graham – has effectively embraced Anisminic without even saying so.
In our submission, at paragraph 31, we refer to some authorities of the Court that suggest that a reference to “the law” being referred to is, and I quote:
“the law applicable to the decision to be made” –
That was said by Justice Gageler in Probuild – or:
“the law under which the [decision‑maker] acts” –
That is the law that has to be done. In this case, that law is section 195A. The first respondent relies, in their submissions, upon a number of cases which we answer in our reply in paragraphs 8 to 14. I do not have enough time to address them all, but we say they are all cases which, properly understood, are cases where the jurisdictional error that was found was found by reference to a constraint imposed upon the decision‑maker.
If I go to just one of those cases – which is Plaintiff M61 – which is the one which seems to bear the most weight in the first respondent’s submissions, the first thing to note – and I draw attention to paragraph 17 of that decision – that is reported at 243 CLR 319 – is that no party in that case advanced any argument relying upon the privative clause – which is to say, jurisdictional error was not asserted. So, it is not at a case even about jurisdictional error. That is the first point to note and the Court does not refer to jurisdictional error – at least in relation to the vast majority of its analysis.
It was also a case in which the Minister directed his officers to carry out an assessment and review the process to ensure that Australia met its international obligations. One sees that, first of all, in the last two sentences of paragraph 36. There is a reference there to what the Minister has directed to be done. There is a lengthy discussion as to the Minister’s announcements and the various manuals – I will skip over that because of time constraints. In paragraph 62, in the third sentence, it says:
the assessment and review were made in consequence of a ministerial direction -
which is the point that I was just making. That is expanded upon in the last seven lines of paragraph 69:
What is presently important is that what the Department did, in conducting assessments and obtaining reviews, was done in consequence of a ministerial decision that those steps be taken. In requiring those steps to be taken, the Minister did not seek to (and did not) delegate any power. But the fact that the steps were taken in consequence of a ministerial decision is important.
Then in paragraph 70, from the last line on that page to the end of the paragraph, one sees that the direction was given effect to – was given in order to protect Australia’s international obligations. The last sentence in particular emphasises that the assessors were required to make an assessment, and then going finally to paragraph 88, starting at the second sentence:
Exercise of that power on the footing that Australia owed protection obligations to the plaintiff would be pointless unless that determination was made according to the criteria and principles identified in the Migration Act, as construed and applied by the courts of Australia. For the purposes of the Minister considering the exercise of power under s 46A, what the RSA Manual and the IMR Manual both referred to as “Australian legislation and relevant case law” had, therefore, to be treated as binding upon those who made the assessments –
So, in the passage which is relied upon by my friends and by the Full Court, which is the last sentence of paragraph 78 about correctly applying the correct principles, that was because those laws were made binding in the direction. They were constraints upon the exercise of power. That is entirely consistent with the case we wish to advance.
Now, the final thing I wanted to say in relation to public importance is apart from the fact that this principle applies in every context in which jurisdictional error is critical, which is everywhere where there is a privative clause and everywhere where the ADJR Act does not exist, such as the Extradition Act, it is also a situation where, on my instructions, there are 1,844 persons who are in the same circumstances as this first respondent in the sense that they have passed through Ashmore Reef and been granted a temporary safe haven visa.
Now, the grant of that visa, while it has the negative aspect, from their perspective, of meaning the section 91K bar applies to them, or applied to them, also has a positive, quite significant….. So, taking away these visas means that they will lose something of value. A temporary safe haven visa is a substantive visa. Being a substantive visa, when they were granted a substantive visa, that amounts to immigration clearance and becoming immigration cleared means that they become, under the Act, under section 72 of the Act, eligible non-citizens, which means that they are then eligible to be granted bridging visas.
So, of those 1,844 there will be a number of them who will be on bridging visas, being persons who, unlike this particular first respondent is not a refugee - they are probably here on bridging visas. If the CBW20 decision is valid, all of those bridging visas will be invalid, or at least they are liable to be invalid, and that then puts them at risk being re‑detained because the Minister will then be under a duty under section 189 to re‑detain them.
We say it is an important question that affects many people, and it should be referred to the Full Court for consideration because there is a difference between Snedden and this Full Court as to where the line is
drawn between jurisdictional error and there should be a referral. May it please ‑ ‑ ‑
EDELMAN J: Mr Lloyd, all those people that you were just speaking of a moment ago could all be granted section 195A visas, could they not?
MR LLOYD: Well, they could be, if the Minister personally does that.
EDELMAN J: Yes.
MR LLOYD: I am not saying there is no ability for them to be granted visas, in the same way as this particular first respondent has already been granted a type of protection visa. So, yes, there are ways of resolving it administratively, but insofar as - that still requires them to be re‑detained under 195A. They cannot be granted it apart from that, because they will not be eligible non‑citizens. So, the only way for them to do it I think now is for them to be detained.
So, there are significant repercussions to the decision. But we say that the point of law is an important point which the Court should consider and if need be, say that Snedden is wrong – or distinguish it, if that is the case. But at the moment, there are two cases which seem to say opposite things. May it please the Court.
KIEFEL CJ: Mr Lloyd, just before you finish, what do you say about the notice of contention, which I think takes up the Human Rights Commission argument, which I take to be something approaching an ultra vires argument?
MR LLOYD: Yes. I mean obviously we will say that that is wrong to the extent that it is important, but another reason for the grant of special leave. In the Full Court below - it was argued fully before the Full Court below, who I think neither summarised it, nor rely upon it. But we cannot say that it has been resolved. But it is not a reason for not granting special leave, we say. It is a matter which – if that is the correct position, then my client should know that that is the correct position, as opposed to thinking that there is some discretion there.
KIEFEL CJ: Yes, thank you. The Court will adjourn briefly to determine what course it will take.
AT 11.53 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.56 AM:
KIEFEL CJ: We need not trouble you, Mr Kirk.
In our view, there are insufficient prospects of success in this matter to warrant the grant of special leave. Special leave is refused with costs.
The Court will now adjourn.
AT 11.56 AM THE MATTER WAS CONCLUDED
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