Mohamed v MIAC & Anor

[2007] HCATrans 815

[2007] HCATrans 815

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M82 of 2007

B e t w e e n -

WAGDY GALAL MAHMOUD MOHAMED

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2007, AT 3.01 PM

Copyright in the High Court of Australia

MR C.G. FAIRFIELD:   May it please the Court, I appear for the applicant in this matter.  (instructed by Erskine Rodan & Associates)

MR C.J. HORAN:  If the Court pleases, I appear for the first respondent.  (instructed by Clayton Utz)

HAYNE J:   Yes, and there is a submitting appearance for the second respondent, I think.  Yes, Mr Fairfield.

MR FAIRFIELD:   May it please the Court.  Before I deal with the legal arguments that we say arise from the special leave question I wish to first of all deal with whether or not this is a suitable vehicle in which to consider those matters.  In her Honour Justice Bennett’s judgment at paragraph 6, which is application book 44, her Honour noted that:

The appellant appears by Counsel and the parties agree that the sole issue in this appeal from the Federal Magistrate’s decision is –

and in effect if I may call it, it was the construction point.  But at paragraph 12 of her Honour’s judgment, her Honour notes:

The appellant accepts that –

and I interpolate the appellant’s construction argument is not accepted –

the Tribunal was bound by the Migration Act 1958 (Cth) (‘the Act’) and the Regulations to affirm the decision of the Delegate and it would be futile to remit the matter to the Tribunal.

Now, her Honour decided the construction point adversely to the appellant.

HAYNE J:   The construction point is, what does a statutory declaration mean, is that a way of describing it?

MR FAIRFIELD:   Yes, your Honour.  In this application the applicant does not seek to agitate that issue.  The sole issue that is agitated is the relevant principle to be applied when there is a finding of jurisdictional error as to whether or not it is futile to remit.  Now, in my respectful submission, there are five reasons why notwithstanding what happened at the hearing and notwithstanding the judgment, why this is a suitable vehicle to agitate the special leave question.

First, in the circumstances, the approach of counsel at the hearing ought not to preclude the applicant from obtaining special leave in this case.  The backward‑looking approach adopted by the majority in Giretti’s Case, which is in effect, would the decision have been any different but for the error, that approach has been adopted in a number of migration cases, and therefore it is not surprising that at the hearing before her Honour counsel did not advocate any alternative test.

The judgment in Lee, Full Court judgment upon which the applicant now relies, was published six days after the hearing before her Honour, and as counsel put it at footnote 11 in our outline at application book 60:

Its possible significance –

that is the significance of Lee –

not coming to counsel’s attention until after the judgment in Minister for Immigration & Citizenship v Ejeuyitsu –

that is the Full Court.  So there are sound reasons why counsel who appeared at the hearing did not seek to agitate whether or not there was a different principle that applied.

Secondly, your Honour, the decision, of course, whether or not to grant constitutional relief is ultimately a matter for the court and involves questions of law and does not ultimately depend upon the view of the parties in the matter.

Finally, in relation to this point, in any event, when one looks at her Honour’s judgment at application book 48, paragraph 24, in my respectful submission, her Honour looked at the futility point by reference to the material that was before the Tribunal and in light of her construction of the provision and not upon the submissions put to her by counsel on the appeal.

HAYNE J:   Assume that to be so, is this a case in which, because of the nature of the material before the Tribunal, the Tribunal was bound, because it did not have a relevant form of statutory declaration, to refuse the relief which the applicant sought in the Tribunal?

MR FAIRFIELD:   Can I answer your Honour’s question this way.

HAYNE J:   Categorical perhaps and, yes, can I challenge the question.

MR FAIRFIELD:   In light of the errors that were conceded by the first respondent the result before the Tribunal could not have been different in view of the material that was before the Tribunal, but we say, your Honour, that is not the correct question that needs to be answered.

HAYNE J:   In light of SZBYR in this Court, why is that not the correct question?

MR FAIRFIELD:   Your Honour, because we say that in SZBYR, in Aala and in SAAP this Court has indicated that constitutional relief may be refused if an applicant could not satisfy the relevant statutory requirement.  We say that does not resolve the controversy about whether one assesses that by looking to the future as to what may happen upon the rehearing or whether one assesses it by looking at what happened in the past.

HAYNE J:   But do you say that on a rehearing the applicant would be entitled to remedy the deficiency found in the form of statutory declaration?

MR FAIRFIELD:   Yes, your Honour.  One speculates about what might happen at a rehearing or a reconsideration.  In my submission, it inevitably contemplates a grant of certiorari because once the Tribunal has reviewed the decision of the delegate, made its decision, handed down its decision it has, in effect, exercised its statutory power.  In the normal case it would only be upon the declaration of invalidity by a reviewing court or a grant of certiorari that the Tribunal could then consider or reconsider the matter.  In those circumstances it would be open to the Tribunal to get any information it considered relevant and it would be open to the applicant to provide what material he wished to provide to the Tribunal.  Indeed, Justice Rares in Tran’s Case took that view, and we have referred to that in our outline, your Honour.

HAYNE J:   But why would the Tribunal be able to get any information it wanted that would supplement or supplant what for present purposes must be assumed to be a deficient or inadequate form of statutory declaration?  The statutory declaration with which we are concerned is in support of the application for visa, is it not?

MR FAIRFIELD:   Yes, your Honour.

HAYNE J:   The Tribunal is reviewing that decision, is that right?

MR FAIRFIELD:   Yes, your Honour.

HAYNE J:   On the basis of the material that the delegate of the Minister had, the delegate was bound, was he or she not, to decline or to refuse to grant the visa because the application was not supported in the manner required by the regulations.  Is that right?

MR FAIRFIELD:   No, with respect, your Honour.

HAYNE J:   Where is the error in that?  That is what I do not understand?

MR FAIRFIELD:   The Tribunal is not limited to the material that is before the delegate when it makes its decision.  It is reviewing the matter de novo and it is up to the applicant.  The applicant may provide further statutory declaration material.  The Tribunal might decide to instigate a further inquiry because the application would be reviewed again in the light of the fact that the previous exercise of power would have been declared to have been invalid if certiorari was granted.

HAYNE J:   The point I am struggling with appears at page 44 of the application book in the first three lines:

A delegate of the Minister concluded that the appellant had not established that he suffered domestic violence because the requirement of Div 1.5 were not satisfied.

I interpolate, those requirements were not satisfied because there was not a requisite form of statutory declaration, was there?

MR FAIRFIELD:   I think that is correct, your Honour, yes.

HAYNE J:   Does it not follow that the delegate concluded that he, that is the applicant, had not met the requirements for the grant of a visa?

MR FAIRFIELD:   That is correct, your Honour.

HAYNE J:   Why does it follow that on review, whether in the Tribunal or judicial review in the courts, we make any assumption other than that there was an application for a visa that did not meet statutory requirements?  That is the nub of the point that troubles me at the moment.

MR FAIRFIELD:   Your Honour, in the ordinary course when an applicant applies to the Tribunal to review the decision of the delegate the applicant provides to the Tribunal further material in support of the application.  The Tribunal is reviewing the matter de novo and is standing in the shoes of the delegate.  That would still be the case if the matter was remitted.

CRENNAN J:   Did not the applicant here accept in the Federal Court that the statutory declarations before the delegate and before the Tribunal were not in accordance with the regulations?

MR FAIRFIELD:   Yes, your Honour.

CRENNAN J:   I am not sure how that fits with your argument that there would be stages subsequent to the delegate’s determination where curative declarations or supplementary declarations could be put into evidence.

MR FAIRFIELD:   Your Honour, before the Tribunal applicants quite frequently provide a number of statutory declarations.

CRENNAN J:   I understand that, but on this occasion that did not happen.

MR FAIRFIELD:   Correct, your Honour, but if the relevant test is to speculate about what might happen if the matter was reconsidered by the Tribunal, as a matter of law that could only happen if the decision is quashed.  The matter then goes back to the Tribunal and it again would be open for the applicant to provide further material and it would essentially be a matter for the Tribunal as to how the matter proceeded.  

CRENNAN J:   I understand that point.  I was just directing your attention back to the fact that the applicant here now accepted before the Federal Court that there had been no attempt before the Tribunal to deal with what were agreed to be deficiencies in the declarations before the delegate.

MR FAIRFIELD:   They were dealt with in this sense, your Honour.  The applicant provided further statutory declarations to the Tribunal.  That was how it was dealt with, your Honour, but because the Tribunal was conducting the matter de novo, the Tribunal was able to consider that material and thereby to determine whether or not the relevant criteria had been satisfied.  We say that process would still apply upon remitter.  Upon remitter the Tribunal would not be limited.  It could still look at any material that it wished to look at, including ‑ ‑ ‑

CRENNAN J:   Yes, I do understand that.

MR FAIRFIELD:   If your Honour pleases.  I was just dealing with whether this is a suitable vehicle, your Honour, and I was pointing out that in the circumstances of this case the approach taken by counsel at the hearing ought not to preclude the applicant from continuing.  Of course, the second reason why this is a suitable vehicle is her Honour does look at the issue of utility in her judgment.  She does so in paragraph 24 at application book 48 and her Honour takes the view that “were the matter to go back to the Tribunal”, and I interpolate there, that could only happen upon speculating upon an invalidity of this decision, so her Honour is beginning by speculating about what might happen if the decision was quashed and sent back, but then goes on to find that on the material that was before the Tribunal the applicant could not succeed. 

So although her Honour begins by applying the forward approach, speculating about what might happen if the decision was quashed upon remitter, her Honour confines that question to the material that was just before the Tribunal and does not speculate about what might happen in the future in terms of any further material that might be provided.

Of course, this is a case where, if the forward approach is adopted, the result may well have been very different.  The deficiencies in the statutory declarations that were identified were largely technical.  The applicant had provided statutory declarations under a Victorian Act, not under a Commonwealth Act.  They could easily be remedied if the matter were remitted to the Tribunal.  So this is not a case where one can say that looking forward the result would be the same as looking back.

Can I turn, your Honours, now to look at the special leave question itself.  Your Honour, we say that in fact the Federal Court has identified and applied two principles in determining whether or not it would be futile to send the matter back to the Tribunal.  The first or backward‑looking test is, in effect, asking but for this error would the result have been the same?  The second forward‑looking test is to ask, if the matter was remitted, would the same result inevitably follow?  The majority judgment in Giretti’s Case, Justices Lindgren and Jenkinson, and Justice Merkel in his strong dissenting judgment, each took comfort from Stead’s Case and read into Stead’s Case those two different principles.

The Full Federal Court in Lee regarded Justice Merkel’s judgment in Giretti as highly persuasive and, in our respectful submission, the approach in Lee’s Case is correct.  The correct approach is to ask, if this matter was to be remitted to the decision‑maker, would the same result inevitably follow?  That is the correct test.  In our submission, her Honour Justice Bennett did not apply that test; rather, her Honour applied the backward test.

Giretti’s Case, of course, was not a migration case and it was not an administrative law case.  It was a case on appeal on the making of a sequestration order where Justice Merkel in his dissenting judgment extended the reasoning to administrative law.  His Honour did that at pages 176 and 178 in Giretti.  Moreover, Giretti has been applied in the migration context.

The first respondent has referred in its authorities to Carlos, the first instance judgment of Justice Merkel where his Honour adopted the backward approach but only after referring to Giretti and noting that in Giretti the majority had adopted that backward approach.  Of course, in Lee the Full Court regarded the approach in Giretti as relevant.  Their Honours simply just did not follow it.  So we have two differing views which have potentially differing consequences depending on whether one looks forward or whether one looks back, but that is the legal issue that arises in the case, your Honour.

Your Honour, in my submission, I think this might come back to where I began, in Aala, SAAP and SZBYR there are some observations about refusing constitutional writs on the grounds of discretion where the statutory requirements could not have been satisfied.

HAYNE J:   No, where the decision‑maker was bound by the governing statute to refuse, in this case, the visa.  I have in mind what is said in SZBYR paragraph 29.  I do not take time to get to it, but what I take from SZBYR was the decision‑maker – presently it does not matter whether that is regarded as the Tribunal or the delegate – was the Tribunal or the delegate, on the material that they had before them, bound to refuse the visa?  At the moment the answer seems to be yes.  You say, but if it goes back, the material may differ.  That is the nub of the debate, is it not?

CRENNAN J:   But the big issue is, how do you get the certiorari in the circumstances which Justice Hayne has just described in order to get the remitter?

MR FAIRFIELD:   This issue only arises where there is jurisdictional error and in this case the Minister conceded that this Tribunal had contravened 359A and there had been a jurisdictional error and that is why this issue arose of futility.  Your Honour, in SZBYR reference was made to the Mobil Oil Case, the Canadian case, which was a case where the decision of the board was quashed because of the denial of procedural fairness but the mandamus was not granted because on any view the applicant could not have succeeded because no new oil drilling wells had been drilled.  So as a matter of objective fact, the applicant could not satisfy the statutory requirements.

It may well be that in SZBYR as a matter of objective fact the applicant could not have shown Convention nexus, but we say in a case like this it cannot be said as a matter of objective fact that the applicant could not have satisfied the regulatory requirement if the matter had been remitted.

HAYNE J:   That I think is where the root of the debate lies about the nature of judicial review and, in particular, the applicability of what Justice Brennan said in Attorney‑General v Quin, that the role of the courts in this area is very limited and is concerned only with lawfulness of that which was done, not with the merits.

MR FAIRFIELD:   Just finally, your Honour, if I may.  That certainly does not appear to have been the approach taken by the Full Court in Lee where they were ‑ ‑ ‑

HAYNE J:   Exactly so.

MR FAIRFIELD:   - - - prepared to adopt the forward approach.  May it please the Court.

HAYNE J:   Yes, thank you, Mr Fairfield.  Yes, Mr Horan, what do you say about the matters that we have just been raising with Mr Fairfield?

MR HORAN:   Your Honour, the first point is that the case, in my submission, is on all fours with SZBYR and the decision of this Court in that case was inconsistent with the application of what has been described as a forward‑looking approach in a case which is analogous to the present case.  Your Honours will recall that on the facts of that case a court held in different judgments that, even assuming that there had been a failure to comply with section 424A, which is the analogous section to the section with which we are concerned in this case, that the Tribunal would still have refused the application on the basis that the appellant’s claims in that case did not involve a Convention ground and in those circumstances it was a unanimous view that the discretion to grant relief would not be exercised in favour of the appellants.

Significantly, the court based its decision in that regard on the record that had been before the Tribunal and there was no question that the appellants might be able to adduce further evidence on remittal to improve their position by identifying a Convention nexus, either further evidence in support of the ground that had been claimed or to raise some other claim which would fall within the Convention. 

The decision therefore, in my submission, illustrates that at least in some cases the discretion to refuse relief can be exercised by reference to what has been described as a backward‑looking test and, in essence, as your Honour Justice Hayne has pointed out, the conclusion in SZBYR was that in such circumstances, which, I would submit, are analogous to the present, the decision‑maker was bound by the governing statute to refuse the application. 

I should say, perhaps partially in answer to some questions that your Honours were asking my learned friend, that the question in the present case involves what is known as a time of decision criterion and in that respect, as my learned friend points out, if the matter were to be sent back, the Tribunal would be assessing the case according to the material at the time it made the decision.

HAYNE J:   Yes.

MR HORAN:   So that in that regard the question as to whether or not the delegate was bound by the statute to refuse the application assumes less significance than the question as to the position of the Tribunal.  Nevertheless, the decision in SZBYR shows that in circumstances where the error, in this case a failure to comply with section 359A, could not have affected the outcome because of an independent and unimpeachable basis for the decision, that in those circumstances the category in which the discretion may be exercised is attracted whereby the result could not have been any different and the applicant was not deprived of any possibility of a successful outcome.

So, although it may be that there are some cases in particular factual context or particular statutory context where a forward‑looking approach might be applied ‑ ‑ ‑

HAYNE J:   I just wonder whether, dividing the universe into forward‑looking and backward‑looking approaches may not suffer from defects of the same kind as were mentioned in the plurality’s reasons in SZBYR without the difficulties that follow from unbundling a Tribunal’s reasons into impeachable and unimpeachable bits.  It is superimposing a mode of analysis which may not always be entirely helpful, I suspect.

MR HORAN:   With respect, I would adopt those observations in a context where the question ultimately is whether the discretion to grant or refuse relief was properly exercised and there is no ‑ ‑ ‑

HAYNE J:   The root consideration is the limited role of the courts.

MR HORAN:   Yes.

HAYNE J:   Courts are engaged in review of these decisions but on very limited bases and not in relation to the merits.  That may be good policy or bad policy but that is the fact.

MR HORAN:   In this case, your Honour, in my submission, there was no error in the exercise of discretion by the court below and the question that is identified by the applicant in the application, in my submission, does not arise because there is no general rule or question as to what the general rule should be between this dichotomy of forward looking and backward looking.  It is simply a question of, was the discretion properly exercised on the facts of the particular case?  In the present case there is no error shown.  In fact, the approach taken was consistent with a similar approach adopted by all members of this Court in SZBYR.

Just in conclusion on that point in relation to the suitability of this case as a vehicle, in the light of the concession that was made below to which my learned friend has referred, the present case is not a suitable vehicle for consideration of any question of futility and the discretion to refuse relief because it certainly cannot be said in the light of the concession which was made to her Honour Justice Bennett that the discretion to refuse relief miscarried in circumstances where the applicant’s counsel had conceded that if the construction point was not accepted, the court would be bound to refuse relief and that no relief should go.  So in those circumstances it cannot be said that there is any question arising from the exercise of discretion by the court.  If the Court pleases.

HAYNE J:   Thank you, Mr Horan.  Yes, Mr Fairfield.

MR FAIRFIELD:   Just one point, your Honour.  Notwithstanding what is said in SZBYR, there does appear to be some conflict between the views expressed in Giretti and in Lee, intermediate Courts of Appeal, as to which of either of these principles apply and, in my respectful submission, that is a basis why this Court should consider the matter.  If the Court pleases.

HAYNE J:   Yes, thank you, Mr Fairfield.

Having regard to the considerations dealt with by this Court in SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 81 ALJR 1190 at 1197 to 1198, paragraphs 28 to 29, the actual orders made in the courts below are not attended by doubt.

As in SZBYR, this is “a case in which no useful result could ensue on the grant of the relief desired” by the applicant, SZBYR (2007) 81 ALJR 1190 at 1198, paragraph 29, because the decision‑maker, whether that is the tribunal or the delegate of the Minister, was bound by the governing statute to refuse the application the applicant made.

It follows that special leave to appeal must be refused and must be refused with costs.

AT 3.31 PM THE MATTER WAS CONCLUDED