MZXOT v MIAC

[2007] HCATrans 631

[2007] HCATrans 631

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M36 of 2007

B e t w e e n -

MZXOT

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 1 NOVEMBER 2007, AT 9.58 AM

Copyright in the High Court of Australia

MS L.G. DE FERRARI:  If the Court pleases, I appear for the plaintiff.  (instructed by Victoria Legal Aid (Civil Law Section))

MR. S.P. DONAGHUE:  If the Court pleases, I appear for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Ms De Ferrari.

MS DE FERRARI:   Your Honour, a proposed case stated was filed yesterday.

HIS HONOUR:   Yes, I have looked at that.

MS DE FERRARI:    The paragraphs 1 to 26 are agreed.  There are some slight differences on proposed form of the questions and that will be the task for your Honour having heard the parties as to those proposed forms.  I think there has actually been a – if I can let my learned friend hand up the documents.

HIS HONOUR:   I have draft questions submitted on behalf of the defendants by fax last afternoon.  Is that the document I should look at.

MR DONAGHUE:   No.  After that I had a discussion with Ms Mortimer and there is a further version.  There are still some differences.  Thank you, your Honour.

HIS HONOUR:   Yes.  You have this, do you, Ms De Ferrari?

MS DE FERRARI:    I do.

HIS HONOUR:   Yes.

MR DONAGHUE:   If your Honour has looked at that other document, I can perhaps explain that the difference between the two versions is in the opening parts of questions 1, 2 and 3 in that the questions focus a little more precisely now, we say, on what the impugned provisions in this litigation are.  There really four, sections 476, 476A and 476B and 484.  The previous draft had some definitional provisions sort of tied up in the way that the question was formulated.

HIS HONOUR:   Is there any halfway house, that is, are the provisions impugned either wholly invalid or not invalid?  Is there any halfway house in the sense of whether any of those provisions in a particular operation is said to be invalid?

MR DONAGHUE:   I think the answer to that, your Honour, is that that may well be a possibility because it seems to us at least that these provisions in short compass are provisions that in the case of 476 and 476A define the jurisdiction.  They define the jurisdiction of other Federal Courts.  So, 476 gives the Federal Magistrates Court the same jurisdiction of this Court subject to certain exceptions.  Section 476A generally excludes the jurisdiction of the Federal Court subject to certain exceptions and 484 excludes the jurisdiction of all courts other than this Court and the two Federal Courts.  So I think both parties will ultimately submit that the answer to question 1 is in accordance with what I am about to say, you end up with a position that this Court is the only court with jurisdiction in relation to certain provisions. 

Now, from that platform of construction, one then gets to the constitutional questions and it seems to us that if any court other than this Court has jurisdiction in relation to decisions of this kind, that that would probably be the end of the constitutional argument.  I say that because the impediment to this Court’s constitutional role or role at the apex of the appellate structure would, we would think, not be impaired if the Court has the option of sending it anywhere rather than keeping it.  That said, it is not apparent to us how one would choose between invalidating one part of this structure rather than another.  If Parliament is free to define the jurisdiction of the Federal Magistrates Court, it is probably also free to do so in relation to the Federal Court.

HIS HONOUR:   So if question 2 went forward in the form you propose, simply asking whether the sections are valid rather than some question framed with an “in whole” or “in part” or “in the operation identified in question 1” or some such qualification, you would be content to have it go forward without any such qualification?

MR DONAGHUE:   Yes, we would be.

HIS HONOUR:   Yes. 

MR DONAGHUE:   So the two areas of debate are the same as they were in the draft that was faxed to the Court earlier, being the concluding words of question 1 where my friends wish the question to be phrased in language that refers to whether or not the application to this Court “must be determined by this Court and by no other Australian court”.  The other area of this agreement is what is my friend’s question 3A?  The objections are linked but I am happy to address your Honour on that now or if you would prefer to hear from my friend first.

HIS HONOUR:   Why do you wish to take out 3A?

MR DONAGHUE:   For this reason, your Honour.  There are two reasons.  The premise of the question is that the answer to question 1 is yes.  So as a matter of construction of these provisions this Court is the only court with jurisdiction.  But the question then seeks to ask, can this Court “decline to hear” the matter “on the basis that another court is a more appropriate court”?  So the question as framed asks this Court to make an assessment of the appropriateness of other courts divorced from the conclusion that has been reached as to the jurisdiction that has been conferred upon those courts. 

I accept it does it as a step towards trying to have those jurisdictional provisions declared invalid, but it does seem to us that it would be difficult to say the least for this Court to reach a conclusion about the appropriateness of other courts in circumstances where it is well accepted that the jurisdiction of the Federal Court is capable of definition by Parliament under sections 71 and 72 of the Constitution. That is our first objection.

The other one is perhaps more fundamental which is that what the question raises is that whether there is an implied power in this Court to decline to hear a matter in circumstances where the jurisdiction of the court has been regularly engaged; not to dismiss it or remit it, but just to decline to hear it.  As far as we are aware, there is not any decision of this Court that suggests that there is power of that kind.  So the Court would be hearing debate about the existence or otherwise of that question in circumstances where no one is actually suggesting that the Court should exercise that power.  Certainly the defendant is not and the plaintiff having brought the application in this Court presumably would not wish this Court to refuse to hear it if the Court were of the view that it could not be sent elsewhere.

So it is not clear that there would be a sharp debate between the parties as to whether or not there is any such power.  Really we say that what our friends are doing with question 3A is seeking to have a debate about whether or not there is such a power – potentially itself a large question – as a stepping stone to invalidity by saying, “You should strike down these sections because they prevent the Court from exercising a power we do not want the Court to exercise”.  That seems to us as being what it boils down to.  It is, put in that way, a rather hypothetical issue in terms of the matters that we say should be engaging the Court’s attention in this case.  It is a matter that the question of whether the Court can or cannot protect itself, if you like, by refusing to hear cases regularly within its jurisdiction is one that is potentially of some importance and should await a case in which it squarely arises as a matter that the Court needs to determine.  That is how we put it.

HIS HONOUR:   On your draft questions, understanding there to be a debate about 3A in the plaintiff’s proposal, is there any reason not to amalgamate questions 2 and 3 as you propound them, that is, to have 2 as A, B and C?

MR DONAGHUE:   No, your Honour, there is not.  There was a difference in the earlier draft as to which provisions were being challenged and we did not apprehend why that was so, but last night that changed, so they could now be amalgamated.

HIS HONOUR:   Yes.  Is there any circumstance which you would submit it would be appropriate for the Full Court to embark on what is presently question 5 in your draft of the proposed questions?

MR DONAGHUE:   Yes, if the Court were to conclude in answer to question 1, “yes”, so that this Court as a matter of statutory construction was the only court with jurisdiction, and then to answer all of the constitutional questions, “no”.

HIS HONOUR:   Why should the Full Court embark upon the decision of the particular issue?  Why should it not be dealt with by a single justice subject to whatever rights of appeal are then open?

MR DONAGHUE:   I do not have specific instructions on this, but I think it likely that we would have no objection to that if the Court was so minded.  I think we put the question in this way because in Bodruddaza that the Court decided recently a question of this kind was determined by the Full Court at the end of the constitutional matter.

HIS HONOUR:   Bodruddaza was a case where there was no lively factual dispute and the compass within which the allegation of jurisdictional error existed was very small.

MR DONAGHUE:   It is very narrow here as well, your Honour.  As we understand it, in the context of a delegate decision.....section 57, but it is the equivalent of.....and the question is whether one particular paragraph in the delegate’s reasons was the reasonable part of the reason for the decision.  If it was, then there was a breach of section 57 and a jurisdictional error will be made out.  If not, then as we – but that is the matter that we would be content either way if the matter was to be left for a single judge.

HIS HONOUR:   Yes, thank you.  Now, Ms De Ferrari, can we deal first with the question of question 3A?

MS DE FERRARI:   Yes, your Honour.

HIS HONOUR:   What does it add and is it a live question?

MS DE FERRARI:   It adds this, your Honour.  The plaintiff wishes to rely on a line of authorities in the US Supreme Court where, although that court did not have to face the constitutional invalidity question, it declined to hear matters that were in its original jurisdiction, effectively on a forum non conveniens basis, with another court assumed to have jurisdiction and being a more appropriate court to hear it, the State Supreme Courts in those cases. 

Now, in this case, were it not for provisions of the Judiciary Act that are engaged by taking away jurisdiction of the Supreme Courts, then it is the case that there would be at least a Supreme Court that would have non‑federal jurisdiction to deal with the matter.  That goes back a long way, your Honour, to Baxter v Commissioners for Taxation as to the non‑federal jurisdiction of the Supreme Courts.

HIS HONOUR:   The Supreme Courts, if they had and were to exercise that jurisdiction, would be exercising federal jurisdiction, would they not?

MS DE FERRARI:   One would assume that if the provisions that are attacked and for the court to say those Supreme Courts do not have any jurisdiction in respect of migration decisions, then if those Supreme Courts would have jurisdiction in respect of the issues and the parties and are courts below this Court, then this Court might well think it appropriate to say, well, this should really be determined by the Supreme Court as a more appropriate court than this Court. 

Is it a live issue?  Your Honour, we are forced in this Court and only this Court to commence it and raise in a sense the constitutional questions by the legislation of the defendant.  I think one way in which the argument by the defendant was being put is effectively, it is not open to us as the plaintiff to put arguments in respect of jurisdiction properly being invoked in this Court not being exercised but that fails to recognise that we are saying that should be the case provided that there is a more appropriate court.

Apart from issues of cost and convenience and so on, at a minimum one would think that plaintiffs or persons who have had adverse refugee decisions would find it much more convenient to commence in another court than in the High Court and have matters determined in the High Court.

HIS HONOUR:   It is not immediately apparent to me quite how the argument runs, but it is an argument that your side of the record wants to run in this Court.  I am not going to shut you out from running the argument at this stage.  Dr Donaghue says it is an argument without substance.  That is something that a Full Court may pass upon.  I do not think I should express a view about it by excluding it.

MS DE FERRARI:   No, your Honour.

HIS HONOUR:   If, then, 3 were to have the two parts you propound, is there any reason not to amalgamate questions 2 and 3?  Are the impugned sections invalid because (a), (b), (c) and (d), (c) and (d) coming out of 3?

MS DE FERRARI:   The only issue is whether we have to deal with the effect of section 38(e) of the Judiciary Act, your Honour.

HIS HONOUR:   Yes, and why does that bear on the form of the questions?

MS DE FERRARI:   Because we could succeed on the question as framed there and it would still be the case that effective in the second part of how my learned friend was putting the argument that this Court might not be able to say that there was another court jurisdiction and hence have a factual basis perhaps to sort of say there is a court that is more appropriate to hear the matter.

HIS HONOUR:   As I say, the argument that you propound in this respect is one which I have evidently not grasped entirely for it is not apparent to me instantly how it is that in the face of 38(e) and its qualifications that what seems to be the premise for the argument, namely, that there is some other court which would have jurisdiction, can be made good.  Do I understand you to say that the questions which presently stand as question 3 engage different considerations from those that are engaged in relation to question 2, at least to the extent of the relief falling within section 38(e) of the Judiciary Act?

MS DE FERRARI: Yes, in the sense that the area of debate, as the defendant would see it, is that we are just talking about federal courts, section 71 courts, and we say they are talking about all the courts within the compass of Chapter III, including the State Supreme Courts and that is brought into relief by question 3 and not by question 2, either on the stay or on the remitter because we do not think that it should be limited to the section 71 courts.

HIS HONOUR:   Yes.  What do you say about question 5?

MS DE FERRARI:   Your Honour, there is actually the natural justice way of putting the same argument…..by the section 57 argument, but we are

certainly not averse to have it determined by a single judge.  It would probably add a little bit of time – we think probably a little bit more time than Bodruddaza to the argument.  It certainly would not be an argument that we would just want to rely on written submissions in the Court but we are in the hands of the Court as to the best way in terms of question 5.

HIS HONOUR:   It seemed to me that there may be advantage in confining what goes into the Full Court to the constitutional issues which the party, on your side of the record, seeks to agitate, leaving the underlying questions for separate determination at a later stage, according to the outcome of the constitutional fights.

MS DE FERRARI:   Yes, your Honour.  At the end of the day the plaintiff aspect of the constitutional case is that really this is a kind of decision and a kind of bread and butter jurisdictional error that should be heard by the Federal Magistrates Court.

HIS HONOUR:   Yes.  I heard such statements made as long ago as the early 1970s by then Chief Justice Barwick when diversity jurisdiction was engaged.  That simply reveals my age, Ms De Ferrari.

MS DE FERRARI:   Yes, your Honour.

HIS HONOUR:   Dr Donaghue, is there anything you want to say in answer to what has been put?  Given that the plaintiff’s side of the record wants to run this argument about 3A, should I shut them out from doing so?  I know you say the point is one that is not good.

MR DONAGHUE:  I was trying to put the submission – perhaps I did not put it well – by reference to saying it may be that the Court will not have the benefit of a sharp distinction of or difference of views in relation to this power because at the moment I am not sure what attitude the defendant will take but I can imagine we may ultimately submit that the court has such a power.  The plaintiff will submit the same and so ‑ ‑ ‑

HIS HONOUR:   Well, be it so.

MR DONAGHUE:  Yes.  But, no, I do not suggest that your Honour should shut them out in light of what your Honour has said.  In my submission, there remains a problem of construction in reconciling question 1 and question 3 because the submissions that my friend has made seem to be premised on the idea that there might be another court and yet the court seems to have answered in question 1 that there is no other court and I do not understand that but if my friends submit that that can be dealt with ‑ ‑ ‑

HIS HONOUR:   If that is the argument that that side of the record wishes to advance, and it is, as I say, an argument I have not yet grasped perhaps with the clarity I should but that is my fault, no one else’s.

MR DONAGHUE:  Your Honour, the final point I would make is that if your Honour is only referring to constitutional questions in the large part of the facts that we have agreed in the case stated probably do not need to be referred to the Full Court.

HIS HONOUR:   I understand that, but the factual circumstances that generate the dispute are, I suspect, better put before the Court than not.

MR DONAGHUE:  I have no objection to them going forward.

HIS HONOUR:   Yes.  Ms De Ferrari, you wanted to add something, did you?

MS DE FERRARI:   Your Honour, in respect of question 1, and I accept that this was late amendments and late negotiation yesterday, but in discussion with my learned…..we do accept that if question 3 impugns section 38(e) of the Judiciary Act then that would be reflected in question 1 as well.  In terms of the facts, your Honour, we would be against now trying to delete or limit the facts ‑ ‑ ‑

HIS HONOUR:   I am not minded to delete the facts, but what do you say about 38(e)?  Is there now going to be some challenge to 38(e)?

MS DE FERRARI:   In its operation – we think it would come down to a reading down in terms of its operation in respect of migration decisions.  The problem is that ‑ ‑ ‑

HIS HONOUR:   Well, that is going to require some quite pretty drafting, I would have thought, to identify that as the way in which the question is put forward, and I do not want to put the parties in the position where they are trying to draft that kind of proposition on the run.

MS DE FERRARI:   Your Honour, the problem arises this way, that the Migration Act says in section 484 that it is only those three courts, the High Court, the Federal Court and the Federal Magistrates Court that have jurisdiction, so in that sense it trumps anything that is in the Judiciary Act.  Then there are other parts of the provisions that are to be considered by the Court in this Act that effectively do various cuts to the jurisdiction of the Federal Courts and of other courts under the Judiciary Act.  Your Honour will see that, for example, in section 484(3).

HIS HONOUR:   But does this not identify a need to formulate the question rather more precisely?  In particular, does it not identify a need to articulate whether and to what extent 38(e) is in play?  Now, could I just go forward apparently three steps?  One, I do not want the parties to attempt the drafting on the run.  Two, if the parties were to agree upon a set of questions and submit them to me it may be that I would be prepared to make those orders without need for further attendance, but are we not in a position where the best I could say to you at the moment is that my present inclination is that questions 1 to 4 and 6 as proposed by the defendant but incorporating the former 3A, and thus dividing 3 into 3A and 3B, would likely be referred by me, but that the parties need to go away, and in particular your side of the record needs to go away and work out exactly what it is doing in relation to question 3 particularly and 3A in particular in connection with the Judiciary Act.

MS DE FERRARI:   Your Honour, I think that the parties can in the next two or three days do exactly that and provide questions 1 to 4 and 6 in the form that would satisfy your Honour as possibly the way in which your Honour would state the questions.

HIS HONOUR:   Well, what I would invite the parties to attempt to achieve is to be in a position to file an agreed form of stated case initialled by both sides by 11.00 am Monday morning.  Now, I would not propose to make any direction to that effect.  All I do is invite the parties to attempt to be in that position.  That would enable me to look at it, consider it, and if I consider it appropriate, approve of it before the Canberra sittings begin next week.  I recognise that Monday next week has unusual features in this State, but that may just invite closer attention sooner.

MS DE FERRARI:   And for the fact that tomorrow is Friday, yes, your Honour.

HIS HONOUR:   The only order I would propose to make today then is simply adjourn the matter to a date to be fixed, making the costs of today costs in the application, I think, or costs in the cause, and leave it to the parties to advance the matter as they are able.

MS DE FERRARI:   Yes, your Honour.  Your Honour, mindful of some timetabling discussions that we have had in a previous matter, does your Honour have any indication as to when this might be going forward?

HIS HONOUR:   The short and blunt answer is, no, I am sorry.

MS DE FERRARI:   Thank you.

HIS HONOUR:   Yes, thank you.

AT 10.29 AM THE MATTER WAS ADJOURNED