MZXOT v Minister for Immigration and Citizenship

[2010] HCATrans 67

[2010] HCATrans 067

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 an order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 17 MARCH 2010, AT 10.32 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 R.C. KNOWLES:   If it pleases the Court, I appear for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes.  Is the matter proceeding?

MS DE FERRARI:   Yes, your Honour.

HIS HONOUR:   Yes.  Before we begin the matter, I assume that both sides have had regard to the fact that argument in the matter of Saeed v Minister for Immigration and Citizenship was had on 11 March last before a Full Court. I assume further that both sides have had regard to the exchange which I had with the solicitor for the Commonwealth in [2010] HCATrans 44 from about line 1801 through to 1860, or thereabouts, in which I raised with the solicitor a series of questions about the way in which it seemed to me, then at least, that sections 56 and 57 of the Act might be understood as operating and the solicitor, at least at parts of the transcript, was a little hesitant about adopting the views that were advanced and wished to give consideration to whether some further written submission might be made on behalf of the Minister in response to the questions that I had raised.

Now, the only direction given, I think, was that any such submission should be made within seven days.  There was no direction that there be a submission, but leave was given to do it within seven days.  That time has not yet elapsed.  I raise it because it occurred to me overnight that although the issues litigated in Saeed were different from issues that directly arise, or appear to me at least at the moment arguably to arise in this matter, I wondered whether the parties wished to say anything about whether I should go ahead, not go ahead, wait, not wait for the argument of this matter according to what happens, first, as to the making of submissions by the Minister, second, as to whether I should await judgment in Saeed before dealing with the matter.

Now, those are questions, they are not interrogative statements.  If counsel wished to have an opportunity to stop and think about them and talk about them, I will go on with the fourth matter in the list to allow you to do it.  It is simply a series of matters that I raise.  Now, Ms De Ferrari, with that very long prologue.

MS DE FERRARI:   I am grateful, your Honour.  Yes, I had noticed that passage of the transcript.  I see my learned friend talking to his instructor, probably the best course is that we do talk because, in a sense, I am at a disadvantage because, as your Honour has noted, the ball is the hands of those acting for the Minister as to whether something is going to happen or not.  As regards the constitutional question in that case, I do not think it affects this case, but that aspect ‑ ‑ ‑

HIS HONOUR:   Well, it seemed to me not to.  That is subject to whatever either of you may later want to say to me.  It seemed to me not to be directly in play.

MS DE FERRARI:   No.   But the construction of the statute – and your Honour would have seen we put fairly extensive written submissions on the construction of the statute – does arise and is an issue that, on the basis of what your Honour said, is alive in that case.

HIS HONOUR:   Well, counsel will form their own view about the course of argument in Saeed but it seemed to me that an understanding of what happened in Saeed was that, step one, construe the relevant subdivision, step two, get to a constitutional point if on the construction one is presented. 

MS DE FERRARI:   That is so.

HIS HONOUR:   Now, these are issues which, at least in the first instance, I would be glad if counsel ‑ ‑ ‑

MS DE FERRARI:   Could we take your invitation to stand the matter down for a few minutes?

HIS HONOUR:   Yes.  What I will do is proceed with the fourth matter and if counsel would be good enough to remain while I deal with that, I will deal first with the fourth matter.  I think there may be a little delay while we obtain the requisite interpreter and the like, so if counsel wish to leave the Bar table, by all means do.  I will not take offence.

MR KNOWLES:   I actually appear in that fourth matter so I will remain.

HIS HONOUR:   Mr Knowles, of course.  I should have been alert to that.  Would it be better if I were to adjourn for a time or are you content to deal with the fourth matter?

MR KNOWLES:   I am certainly content to deal with the fourth matter now.  I am in your Honour’s and my learned friend’s hands as to the order in which the matters proceed, but I am certainly prepared to deal with the fourth matter now.  I am not sure whether or not there is an appearance.  There is.

HIS HONOUR:   Yes, there is.

MR KNOWLES:   I am certainly happy to proceed with that matter now, your Honour.

HIS HONOUR:   I know it is inconvenient for you, Ms De Ferrari, but I will, I think, go ahead with the fourth matter and it may mean that we then take a break while you two are able to talk about what we should do in MZXOT.  It may be the more efficient use of time if I proceed in that way.

AT 10.38 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.25 AM:

HIS HONOUR:   Yes, Mr Knowles.

MR KNOWLES:   Your Honour, thank you very much for that opportunity to seek some instructions about this issue.  Firstly, your Honour, perhaps if I can just indicate that I understand that in the matter of Saeed the invitation to supply any further submissions has not and will not be taken up and I think that may have been conveyed to the Court in very recent times.  Otherwise, though, given that the decision in Saeed may or may not, but it may at least address matters relevant to this case, I am instructed that my client does not object to the matter being adjourned off until that matter has been decided by the Full Court. 

Again, the issue really comes down to the dates, your Honour, and it is difficult to predict what would be the most appropriate way of dealing with that, but, in my submission, if the matter were brought back before your Honour at some date in the not too distant future and if at that time the matter of Saeed had not been decided, it could be adjourned off to a future date perhaps at that time.

HIS HONOUR:   Yes.  I am very reluctant, Mr Knowles, to bring the parties back at cost to everyone, but there we are.

MR KNOWLES:   Yes.

HIS HONOUR:   Ms De Ferrari, what do you say I should do?

MS DE FERRARI:   Well, your Honour, my client does not object to the matter being adjourned before your Honour.  The question, in a sense, is Saeed may or may not say something about the interaction of sections 56 and 57 and if it does say something, then it is clearly relevant to this case.  We have raised the issue of construction of that section and section 54 quite squarely. 

HIS HONOUR:   Can I just explore that a moment with you just to make sure that I do understand a way in which you want to put this aspect of the case.  I had understood a matter of your putting your application was that the information derived, if I may use it as a neutral term of reference, the information derived from the business visa application was information of a kind that is encompassed by the definition of “relevant information” in section 57(1) because (a) you say, looked at prospectively, it would be the reason or part of the reason for refusing to grant a visa, alternatively, looked at retrospectively, it was a part of the reason if not the reason for refusing to grant a visa, (b) it is specifically about the applicant and (c) it was not given by the applicant for the purpose of the application which was under consideration?

MS DE FERRARI:   That is right, your Honour.

HIS HONOUR:   That is a branch of your submission and your further submission would be, as I understand it, that the Minister had power under section 56 in the words of subsection (1) of that section to get information considered relevant by looking to the business visa application and that the Minister had power under 56(2) and 57 and 58 to, in effect, put to the applicant what appeared to be drawn from the business visa application, is that right?

MS DE FERRARI:   Yes, your Honour, that is so.

HIS HONOUR:   And the bottom line of your submission is that, on this branch at least, is that a failure to seek comment in accordance with 57(2) is jurisdictional error?

MS DE FERRARI:   Yes, your Honour, that is so.  Your Honour will have seen from the submissions that the two issues, in a sense, that is what the delegate took into account and what the delegate filed to take into account but sort of linked together.  So there is also the question of section 54 obligation to deal with the information in the application and those two sections use similar but not identical language and engage similar but not identical obligations that then can feed into sections 57 or 58 or 56(2).

HIS HONOUR:   Yes.  Now, if those submissions were ultimately to be accepted, if relief went, the consequence would be what?  Reconsideration of the protection visa application?

MS DE FERRARI:   Yes, your Honour, because the relief that the plaintiff seeks is mandamus with certiorari in aid of mandamus, so certiorari would quash the decision that was made and mandamus would mean that the extant application would still require consideration by the Minister or his delegate.

HIS HONOUR:   But the further consequence and building if upon if upon if, which I am, the further consequence would be that if that relief were granted and if upon reconsideration the application were rejected, the doorway would be open to merits review in the Tribunal.

MS DE FERRARI:   That is so, provided that the plaintiff the next time was ‑ ‑ ‑

HIS HONOUR:   Within time.

MS DE FERRARI:   Yes.

HIS HONOUR:   Yes.  And lurking at the back of my mind remain questions of utility and, as I understand it, that is the utility which you would assert is the value in relief of the kind you seek.

MS DE FERRARI:   Well, first and foremost having another decision by the delegate according to law and then if that is against my client, then the avenue of Part 7 will be open.

HIS HONOUR:   Which is full merits review.

MS DE FERRARI:   That is so, with an opportunity to put submissions.

HIS HONOUR:   Yes, I see.  I suspect that the more prudent course would be for me to stand the matter out of the list generally until Saeed is decided.  I reach that conclusion with a little reluctance because I do not think that these applications (a) should be prolonged or (b) the subject of repeated appearances in the Court, but because an element for consideration in Saeed is the proper construction of the subdivision which underpins at least the branch of the argument advanced on behalf of the applicant which I have sought to identify in discussion with you, Ms De Ferrari, I am minded to adjourn the matter until a decision in Saeed. 

Resolution of the branch of the argument that we have thus far discussed might be thought to turn in part upon noticing that 57(1)(c) identifies relevant information as information that the Minister considers “was not given by the applicant for the purpose of the application” and is a branch of the argument that depends upon reading that, which maybe the better reading, I have not heard argument about it, as the application under consideration, not simply any and every application that this person may have made at any time for visas.

MS DE FERRARI:   Yes.  I am certain my learned friend will take that into account.  As things stand at the moment, I understand that the Minister concedes that 57(1)(b) and (c) are satisfied in this case, but that is always subject to reconsideration.

HIS HONOUR:   Exactly.

MS DE FERRARI:   Could I also say, perhaps it might be useful to point out that there is one further aspect in this case on the statutory construction and that is that in this case, unlike Saeed, the obligation in section 66(2)(c), that is, to give reasons, was engaged and further, that in this case that obligation to give written reasons read with section 25D of the Acts Interpretation Act extends it to setting out the findings on material questions of fact and reference to the evidence on which those findings are based.  I understand there was reasons given in Saeed, but the obligation was not engaged in that case.  So there are differences ‑ ‑ ‑

HIS HONOUR:   Yes.  Plainly there are differences, perhaps some of them can properly be described as quite radical differences between this case and Saeed.  I understand that.  What does fuss me a little, though, is that the starting point in Saeed may be understood as being the proper construction of the subdivision in its place in the Act.

MS DE FERRARI:   That is the starting point for the plaintiff’s submissions as well.

HIS HONOUR:   Yes, and that being so, I think that the better course is for me to stand the matter out of the list generally.  I would not be minded to stand it over to a specific date.  Of course, I am not in a position to say when the Full Court is likely to be able to deliver judgment or publish reasons in Saeed, that is a matter for the whole Court to determine, not a single Justice, and rather than have the parties come back at further expense, perhaps for no value, I will simply stand it out of the list generally but with liberty to either party to restore it to the list on giving, shall I say, seven days notice in writing to opposite parties.  Would that be an appropriate time?

MR KNOWLES:   Yes, that sounds adequate for the defendant, your Honour.

HIS HONOUR:   The costs of today would be costs in the application?

MS DE FERRARI:   Yes, your Honour.

MR KNOWLES:   Yes, your Honour.

HIS HONOUR:   Yes.  Then there will be orders in those terms.  I thank counsel for their assistance in the matter.  I now will adjourn.

AT 11.39 AM THE MATTER WAS ADJOURNED