Muradzi v Minister for Immigration and Citizenship

[2010] HCATrans 312

[2010] HCATrans 312

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M99 of 2010

B e t w e e n -

TATENDA MURADZI

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Summons for directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 15 NOVEMBER 2010, AT 10.16 AM

Copyright in the High Court of Australia

MR A. BONNICI:   May it please, your Honour, I appear for the plaintiff.  (instructed by Lily Ong)

MR W.S. MOSLEY:   If your Honour pleases, I appear for the defendant.  (instructed by DLA Phillips Fox)

HIS HONOUR:   Mr Bonnici, it is suggested that it is open to me to remit the matter to another court for determination of any factual dispute.  Do you accept that I have power, in this case, to remit?

MR BONNICI:   Yes, I do.

HIS HONOUR:   Why should I not remit?

MR BONNICI:   The reasons are ‑ ‑ ‑

HIS HONOUR:   Do you mind coming to the ‑ ‑ ‑

MR BONNICI:   I am sorry, could I settle myself in with my documents.

HIS HONOUR:   Yes, of course, Mr Bonnici.

MR BONNICI:   Thank you, your Honour.  One of the matters that makes me very apprehensive about your Honour making the order that your Honour suggested is that there is a case - I have researched any case law that might be on the matter and of course this particular group of visas was brought in on 1 September, I think, 2007.  In fact, the only case I could find was a Federal Magistrates Court decision in the matter of Dharmesh v Minister for Immigration.  I have a copy of it here for your Honour.

HIS HONOUR:   Thank you.  Yes.

MR BONNICI:   If I can take your Honour to paragraph – it is a very short decision and the thing that causes a fair bit of apprehension, your Honour, is paragraph 10.  Shall I read it for your Honour?

HIS HONOUR:   No, I have it, thank you.  Yes, I have read that. 

MR BONNICI:   Your Honour, the word that worries me there is “hypothetically”.

HIS HONOUR:   Yes.

MR BONNICI:   My fear is that the plaintiff falls between two chairs and this Court refers it back to the Magistrates Court and the Magistrates Court says “Well, we really don’t have power in this case” which will leave the plaintiff hanging in space.  Now, that is one of the issues that causes me great concern.  The other issue, your Honour, is that there is a very important – very narrow, but very important principle involved here.  It is whether the provisions of a particular item as far as lodging applications is in fact one that has to be followed in the sense that it is – that is what happens, your Honour, being last on the list, one does not get the chance of – in this case, your Honour, the applicant plaintiff went to lodge her application by way of the internet, your Honour, but she could not ‑ ‑ ‑

HIS HONOUR:   Could not get on and, therefore, faxed it.  Yes.

MR BONNICI:   Could not get on at all.  In fact, that very day was the last day for her visa and what she did was, in fact, send a facsimile transmission which was not accepted by the Department because they said it was not an internet application, nor at the particular post office, and I would submit, with respect, that, in fact, the particular paragraph was misconstrued.  It was not, in fact, mandatory that the application should be served on – should be lodged in one of those three ways.  They were just facilitating the lodgement of the application but it was not mandatory.  Once the application is with the Department then that application has been lodged, I submit, with respect.  This is the issue here.

The complication is that before the lodgement of this application there was, of course, the question of the application for refugee status where the applicant’s sister was sent to Australia by her mother because of incidents that occurred in Zimbabwe to her.  In fact, the two sisters then applied for refugee status.  But, as time went by, on the 15th, being the final day, and not having heard any results as far as the review of the delegate’s refusal, the applicant sought then to safeguard her position as far as the substantive visa was concerned.  Now, these are all matters that are interrelated and in the light of that statement by the federal magistrate that it is hypothetical, I could not take the risk of having it – of agreeing to have it transferred, your Honour.

HIS HONOUR:   Yes.

MR BONNICI:   Secondly, your Honour, there are a number of these applications, thousands of them that are dealt with every year and unless there are clear directions by the court, and of course preferably the High Court of Australia which is the ultimate arbiter, then these matters of this nature are going to keep on recurring.  These are basically the reasons why I think it should remain in this Court and not be transferred to the Magistrates Court.

HIS HONOUR:   Yes.

MR BONNICI:   Thank you, your Honour.

HIS HONOUR:   Thank you, Mr Bonnici.  Yes, Mr Mosley.  Can you explain to me, first, Mr Mosley, how it is that the Magistrates Court would have jurisdiction, or more accurately, why the Magistrates Court jurisdiction would not be taken away?

MR MOSLEY:   Yes, your Honour.  It is our submission that of course the matter should be remitted, as we have said in our written submissions.  Does your Honour have that book of authorities as yet?  No, I am sorry – I will hand it to the ‑ ‑ ‑

HIS HONOUR:   I have that, yes.  Does Mr Bonnici have a copy of that?  He does now.

MR BONNICI:   I am getting one now.

HIS HONOUR:   Yes, thank you.

MR MOSLEY:   We submit that the decision that is made is a privative clause decision and that is defined in section 474(2) of the Act and that is at tab 1.2 of the book of authorities.  Your Honour will see the definition of a “privative clause decision”.  It means:

a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

It is not a decision referred to in subsection (4) or (5).  Then if I could take your Honour to section 476(4) which defines the jurisdiction of the Federal Magistrates Court and your Honour will see that the jurisdiction in 476(1) states that:

Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

Then there is an exclusionary provision in 476(2):

The Federal Magistrates Court has no jurisdiction in relation to the following decisions:

(a)      a primary decision –

and the definition of a “primary decision” – I go back a step – (2)(b), (c) and (d) are obviously not relevant and my learned friend in his written submissions says it is a primary decision.  It is not a primary decision, in our submission, because that is defined as:

a privative clause decision or purported privative clause decision:

(a)      that is reviewable under –

relevantly in this case, Part 5, which is reviewable by the Migration Review Tribunal - whether or not it was reviewed and in this case it is not reviewable by the Migration Review Tribunal, and behind one of the other tabs here is the definition of a migration review – sorry it is section 338, it is behind the second tab which is 1.1, I think.  Does your Honour have it?

HIS HONOUR:   Yes.

MR MOSLEY:   Section 338 which defines decisions that are reviewable by the Migration Review Tribunal and a decision to refuse – I am sorry, a decision that an application is valid is not a reviewable decision either under section 338 or under the only regulation referred to, regulation 4.02, which is also in our list of materials behind section 338.  So in those circumstances, your Honour, going back to the Federal Magistrates Court’s jurisdiction, it has jurisdiction - unless excluded it has the same jurisdiction as has the High Court.

In those circumstances, one then goes to the position of the High Court, which is defined in section 476B, which is also behind the third tab and that says that the High Court fundamentally cannot remit a matter to the Federal Magistrates Court “that relates to a migration decision” – sorry, other than to “the Federal Magistrates Court” and then in subsection (2):

The High Court must not remit a matter, or any part of a matter, that relates to a migration decision to the Federal Magistrates Court unless that court has jurisdiction in relation to the matter, or that part of the matter, under section 476.

It is our submission that this Court therefore has the ability under 476B(3) to remit the matter – I am sorry, it has the ability to remit the matter to the Federal Magistrates Court.  That is, in essence, the way we put it.  I can understand my learned friend refers to that decision of Dharmesh but the federal magistrate in that case was not asked to consider the issue.  The matter before him was a review of a decision of the Tribunal.

HIS HONOUR:   But do I understand the position of the Minister to be that the Minister submits that the Federal Magistrates Court has jurisdiction and that the possibility of falling between two stools, to which Mr Bonnici referred, does not arise because the Federal Magistrates Court has jurisdiction?

MR MOSLEY:   That is right, your Honour, that is what we would submit.

HIS HONOUR:   I assume that that is a submission that would be repeated in the Federal Magistrates Court.

MR MOSLEY:   Yes, your Honour.

HIS HONOUR:   If the matter were to be remitted.  Now, Mr Bonnici also says this is a particular point of statutory construction that is important and affects other cases.  Is this matter one in which the only issue between the parties would be an issue of the construction of the “how do you serve” or “how do you make your visa application?”

MR MOSLEY:   No, it would not be, your Honour.

HIS HONOUR:   What other issues – not seeking to confine your statement of issues, but what other issues do you presently see as arising between the parties?

MR MOSLEY:   Well, there were two reasons really given by the delegate for the invalidity of the application.  The first one was that the matter was section 48 barred and what that means is that if you are section 48 barred – and I can take your Honour to the sections, but you can only apply for a visa of a particular class in circumstances set out – if I take your Honour first, I think, to section 46(1)(d) which sets out when an application for visa is valid.

HIS HONOUR:   Yes.  It is not prevented by 48 – which part of 48 did the delegate say was engaged in this matter?

MR MOSLEY:   If one then goes to section 48, which is also in the list of materials ‑ ‑ ‑

HIS HONOUR:   Yes, well, I have 48.

MR MOSLEY:   Your Honour is ahead of me there.  Section 48 says this:

A non‑citizen in the migration zone who:

(a)      does not hold a substantive visa -

and that raises the issue of the date of the application being made to the Minister or to the Department, because the chronology shows that the last substantive visa that the applicant held was a student visa which expired on 15 March.  Now, there is a dispute – or I foreshadow a dispute – over when the application was made, so that is the first issue.

HIS HONOUR:   Yes, and that is a factual issue, is it, about when the fax was sent?

MR MOSLEY:   That is right, your Honour.

HIS HONOUR:   Yes.

MR MOSLEY:   It bears – if you look at the material and your Honour will have seen this – on the top of it, on what I might call loosely the fax header, a time and a date but of course that is information, as I understand it, that is printed off the sending fax, whereas the Department has stamped it as received on 16 March, the day after, at 12.30.

HIS HONOUR:   Yes.  There may be a factual dispute between the parties about whose systems more accurately reflect what happened when.

MR MOSLEY:   The time of receipt, yes.  I do not have any instructions about that.

HIS HONOUR:   Or the time of dispatch.

MR MOSLEY:   Or the time of dispatch, yes.

HIS HONOUR:   And which is relevant.

MR MOSLEY:   Overlaid over all that, of course, your Honour, is that – and I hear what your Honour says, but is the provisions of the Act starting at section 46 which set out – and if I could take your Honour back to that now – and there are authorities on this in the Federal Court, I think:

Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:

and we have set this out –

(b)      it satisfies the criteria –

and what I did not put in the submissions and should have and I draw your Honour’s attention to subsection (3) which rather reinforces what is said – 46(3) and (4):

The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.

(4)      Without limiting subsection (3), the regulations may also prescribe:

(a)      the circumstances that must exist for an application for a visa of a specified class to be a valid application; and

(b)how an application for a visa of a specified class must be made; and ‑ ‑ ‑

HIS HONOUR:   Yes.  Now, there would be a lively question of construction I would have thought, Mr Mosley, about whether (4)(b) “how an application for a visa . . . must be made” is a species of a genus described in (3), “criteria that must be satisfied for an application . . . to be a valid application”.

MR MOSLEY:   Yes, and then you go to the regulations.  Your Honour will see we have set those out and then you go to the schedules which set out the three ways in which an application may be made.

HIS HONOUR:   I know the regulations say things about how you do it.

MR MOSLEY:   Yes.

HIS HONOUR:   You do it on the net or you do it by delivery or by courier and, as I say, there may be a lively question of construction about whether the method of transmission of a document which is admittedly received into the hands of the relevant processing arm of the Minister is, in fact, received and whether the manner of its receipt is a condition for validity of the application.  Those are questions about which I express not the slightest opinion.

MR MOSLEY:   Yes, your Honour.

HIS HONOUR:   They are matters for another day.  It comes to this, does it not, Mr Mosley?  There is power.  There is a lively question of fact about what was sent when and how, whether it matters whether it was sent in one way rather than the other and what consequences then follow.

MR MOSLEY:   Yes, that is right.  There is also one other matter which I was going to come to, but my learned instructor points out the issue of the time limits, the enlargement of time.  The application in this Court is out of time under 486A(1) - your Honour will have seen that - by a couple of months.

HIS HONOUR:   What is the attitude of the Minister to those questions of time?

MR MOSLEY:   Well, if your Honour was disposed to remit to the Federal Magistrates Court, then I suppose that is a matter that we would want to argue because one of the matters obviously that is the issue of delay and the issue of prospect of success are matters that are taken into account, particularly prospect of success, in this case, in assessing whether time ought be enlarged.

HIS HONOUR:   But again, that raises the substantive issue, does it not, of does it matter?

MR MOSLEY:   Yes, it does, the matters are linked.

HIS HONOUR:   You are starting to chase your tail at that point, are you not ‑ ‑ ‑

MR MOSLEY:   One is.

HIS HONOUR:   ‑ ‑ ‑ in the sense that you are having a debate about the validity of the application, well why not just debate the validity of the application rather than dress it up as a “this application has no chance” type debate.

MR MOSLEY:   Yes, that is true, your Honour.  It is a bit like an application for final judgment, I suppose.  One sometimes gets heavily into the ‑ ‑ ‑

HIS HONOUR:   I know there are cases in which it is important that summary judgment be sought, but there are also cases where “let’s get to the heart of the issue” is perhaps a preferable course.  Which this is is a matter that the parties will judge for themselves.

MR MOSLEY:   Yes, I do not put it as matter in which – in the Marks‑type situation – Justice McHugh’s decision that is often cited to the Court.

HIS HONOUR:   Yes.

MR MOSLEY:   That it is way out of time.  It is two months under the new 486A(1) and a month in respect of the High Court Rules for mandamus.  I also wondered about certiorari in this matter, whether the applicant needs certiorari in order to quash the decision as well.  But that is not a matter for us, I suppose.

HIS HONOUR:   It may be that certiorari to quash is desirable.  I do not know.  But as at present advised, the Minister does not accede to any extension?

MR MOSLEY:   No, I am not in a position ‑ ‑ ‑

HIS HONOUR:   Would wish to debate that fully.

MR MOSLEY:   Yes, I am not in a position to suggest that we would give that up at the present time.

HIS HONOUR:   As I say, Mr Mosley, it occurs to me on reading the matter that it is one where there would be advantage to all concerned to focus on the real debate between the parties, I suspect.

MR MOSLEY:   And ultimately that is no doubt what will happen, apart from a preliminary ‑ ‑ ‑

HIS HONOUR:   I know.  Preliminary skirmishes are wonderful for the lawyers.

MR MOSLEY:   Yes, they are.

HIS HONOUR:   But I just wonder whether the parties might not be better off to get down to the nitty‑gritty of what really divides them.

MR MOSLEY:   Yes, well I assume that would happen fairly speedily in terms of ‑ ‑ ‑

HIS HONOUR:   One would trust so.

MR MOSLEY:   Yes.

HIS HONOUR:   Yes.  I do not think I need trouble you further, Mr Mosley.  Mr Bonnici, the Minister accepting that the Federal Magistrates Court has jurisdiction and there being, at least as we presently understand it, the likelihood of disputed questions of fact, why should I not remit it?

MR BONNICI:   Your Honour, as to the disputed questions of fact, I would submit that there are none because I would submit that the decision itself states that it was received by the Department in Adelaide but it had not been handed to the particular section.  It is not a question of fact that it was received by the Department on the 15th.  It is the fact that it is claimed that the truth had been in the hands of the particular section on the 15th and since it got there on the 16th, that is where the question of construction comes in.

HIS HONOUR:   Yes.

MR BONNICI:   Because it is not on the sole matter as the date.  If your Honour has a look at the provisions they say that in fact it should be with the particular section on the date, not with the Minister’s Department, but it was with the Minister’s Department on the 15th and it is acknowledged in the decision itself.  If your Honour wishes me to take you to the part ‑ ‑ ‑

HIS HONOUR:   No, no.

MR BONNICI:   So all I am stating, your Honour, is that there is no question of fact, no argument on the facts.  It is all on a question of construction as to the construction of paragraph (3)(a).  That matter needs to be addressed today, before tomorrow because there will be other applications of this kind that flow through.  A decision is needed from the High Court, truly because that is it.  There is nowhere else to go.  That is a construction of the paragraph and that is the thing that is very important.  Thank you, your Honour.

HIS HONOUR:   Yes, thank you, Mr Bonnici.

In this matter the Minister accepts, correctly, that the Federal Magistrates Court has jurisdiction in respect of the application that has been made.  The Minister seeks to dispute some of the facts upon which the plaintiff would rely in support of her application.  In these circumstances, I am of opinion that the matter should be remitted to the Federal Magistrates Court.  There will be an order for remitter in the common form to the Federal Magistrates Court.  Mr Mosley?

MR MOSLEY:   We would seek an order for costs, your Honour.  Your Honour will have seen in the affidavit material, in the affidavit particularly of my instructing solicitor ‑ ‑ ‑

HIS HONOUR:   Mr Mosley, can I shortcut this?  Yes, I see that you want the costs.  Yes, I see that you said there should be remitter.

MR MOSLEY:   Yes.

HIS HONOUR:   If, at the end of this process the Minister wins, presumably the Minister will get the costs of today.  If the Minister loses at the end of the day, should the Minister, in those circumstances, have the costs of today?

MR MOSLEY:   Well, only if the Minister were to lose in the Federal Magistrates Court.  Costs have been incurred – which presumably then he would not get costs of today.

HIS HONOUR:   No, he would not.  Should he have them today, Mr Mosley?

MR MOSLEY:   Well, if the matter had been remitted by consent, and my learned friend accepted on your Honour’s first question that the Federal Magistrates Court did have jurisdiction to deal with the matter, then we could have all avoided this exercise today and the costs associated therewith.  That is the point that I would put to your Honour.

HIS HONOUR:   Yes, Mr Mosley.  There will be an order for costs in the ordinary form.

MR MOSLEY:   As your Honour pleases.

HIS HONOUR:   Yes, adjourn the Court.

AT 10.48 AM THE MATTER WAS ADJOURNED