Plaintiff M126-2016 v Minister for Immigration and Border Protection & Ors

[2017] HCATrans 29

[2017] HCATrans 029

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M126 of 2016

B e t w e e n -

PLAINTIFF M126/2016

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

MATTHEW TUBRIDY

Second Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Third Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 15 FEBRUARY 2017, AT 11.00 AM

Copyright in the High Court of Australia

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

MR L.T. BROWN:   May it please the Court, I appear for the respondent.  (instructed by Sparke Helmore)

HER HONOUR:   Thank you.

MS DE FERRARI:   Your Honour, I know, would have read the submissions of the parties and the applications for an order to show cause ‑ ‑ ‑

HER HONOUR:   Yes.

MS DE FERRARI:   ‑ ‑ ‑ and, your Honour, I assume would have read the affidavit of Chelsea Clark affirmed 9 September 2016.  That affidavit deals both with the relevant chronology of this matter and matters of extension of time and can I formally read it?

HER HONOUR:   Of course, thank you.

MS DE FERRARI:   Your Honour, I have also prepared a separate document which is a chronology which is basically just extracted from the affidavit.  If it assists the Court, I can hand ‑ ‑ ‑

HER HONOUR:   Certainly, give a copy to Mr Brown as well please.

MS DE FERRARI:   Your Honour, there are three issues, I believe, before the Court today.

HER HONOUR:   Yes.

MS DE FERRARI:   The first is an extension of time, the second is any abuse issues and then the third is the substantive argument.  In my submission ‑ well, it seems to me that the parties obviously see the issues through different lenses and the Court will appreciate that the plaintiff’s case is that this is a mandamus case directed to the Minister, whereas in my submission the Minister focuses on the decision of Mr Tubridy.  For convenience I will refer to him as a delegate though your Honour appreciates that the plaintiff says he was not delegated. 

So it seems to me the Minister focuses on the decision of Tubridy and says that the plaintiff seeks to impeach it by the issue of certiorari in a way that effectively it is an abuse of process.

HER HONOUR:   Yes.

MS DE FERRARI:   So that is leaving aside anything the Minister did or did not do, never mind that, the Minister says you focus on the decision of the delegate and that is an abuse of process.  Can I deal with extension of time and abuse in this way?

HER HONOUR:   Yes.

MS DE FERRARI:   Now, your Honour will appreciate that what the plaintiff says about the decision of the AAT and the need in terms of challenging the extension of time.  I am not going to spend any more time on that.  If the Court is minded to grant an extension of time which is needed in respect of that decision under section 486A(2), then I seek it and it should be extended nunc pro tunc 9 September 2016, and your Honour would know that the approach to extension of time has been considered, for example, in a decision of Wei v The Minister – I think that is the surname, Wei v The Minister [2015] HCA 51 at paragraph 42 by Justices Gageler and Keane and at paragraph 52 by Justice Nettle agreeing, and they are basically saying when you grant an extension of time you are doing it nunc pro tunc to the date of filing of the application.  Their Honours also say that obviously section 486A(2) is not a bar to filing an application in this Court, it is just a procedural matter.

HER HONOUR:   Yes.

MS DE FERRARI:   So that is all about the AAT.  So then one gets to constructive refusal to complete the duty to consider the plaintiff’s valid application which the plaintiff says it is a duty under the complementary provisions of section 47 and section 65 and your Honour would know I have referred to Plaintiff S297 at paragraphs 32 to 34 for how this Court has considered those provisions.

Now, it is mandamus to compel the Minister personally and then one gets to rule 25.07.2.  Now, your Honour, that rule actually does not apply and your Honour will have seen I said that in the submissions on reply but after actually filing the submissions on reply I can now give an authority to the Court for why that is so and that is the decision of this Court in Bodruddaza.  Your Honour, I have got a folder of authorities if that assists ‑ ‑ ‑

HER HONOUR:   I have some of them saved electronically, so if they were on your list I have got them electronically ‑ ‑ ‑

MS DE FERRARI:   The only one that is not on my list is Bodruddaza v Minister for Immigration.  The Minister agrees that rule 25.07.2 does not apply.

HER HONOUR:   Yes.

MS DE FERRARI:   Your Honour will see it, in any event, at paragraph 31 of the decision of this Court.

HER HONOUR:   Yes.

MS DE FERRARI:   That is because it is not a judicial Tribunal.

HER HONOUR:   I understand.

MS DE FERRARI:   Now, the issue of an extension of time under the Act in respect of this constructive refusal is a little bit more complex, and I want to take a couple of minutes to deal with that.  Now, arguably, a constructive refusal to perform a duty is a purported privative clause decision as defined in section 5E of the Act.

HER HONOUR:   Yes.

MS DE FERRARI:   I say only arguably but if it is then it is a migration decision and that is under section 5(1) of the Act.  Then one goes to section 486A(1) – does your Honour have that provision?

HER HONOUR:   I do.

MS DE FERRARI:   Now, that provision works by reference to the date of the migration decision, and subsection (3) says the:

date of the migration decision has the meaning given by subsection 477(3).

So one goes to 477(3), and if your Honour goes through paragraphs (a), (b), (c) and (d), the only arguable paragraph that applies ‑ ‑ ‑

HER HONOUR:   Is (d).

MS DE FERRARI:   Yes, and that is only arguable.  In my submission, when one looks at all the paragraphs, in fact paragraph (d) is intended to cover a real decision, that is not a constructive refusal, but assuming that it does apply, then in fact there is no date that applies until the Court sets a date.  So there is no date at the moment from which time is supposed to be calculated for the purpose of section 486A(1).  So, in my submission ‑ ‑ ‑

HER HONOUR:   I suppose that comes back to the merits of your substantive argument because it depends upon the way in which you look at and construe the events that happened giving rise to the quashing of the Minister’s first decision.

MS DE FERRARI:   Yes, I will come to that.

HER HONOUR:   So it seems to me they are interrelated. 

MS DE FERRARI:   They are all interrelated and, in fact, what is interrelated as well is the abuse argument.  I just wanted to touch briefly on that before going to the substantive argument.

HER HONOUR:   Sure.  Sorry, is there anything else you wished to say about 477 and that line?

MS DE FERRARI:   Not on constructive refusal to complete the duty, no.

HER HONOUR:   Yes.

MS DE FERRARI:   Now, certiorari quashed the decision of the delegate.  I think the rules can in a sense be put to one side.  There is an issue really of whether the proceeding extends to it but Bodruddaza says – this Court was prepared to proceed on the assumption that proceeding in that rule did cover a decision of a delegate.  The rules really are less important than section 486A(1) and I accept that the plaintiff needs an extension of time and it is here really again that I go back to the first point, that the Minister and the plaintiff look at this case through different lenses.  The Minister says you want to quash that decision, that is abuse of process.

As I understand it, the reason why the Minister says that, in the Minister’s paragraph 16 of his submissions accepts that otherwise the delay is explained is to say you have not given any explanation why the current “grounds” were not pursued in the Federal Circuit Court.  The Minister accepts that certiorari in respect of the delegate’s decision could not – could not have been sought in the Federal Circuit Court, and that is really the argument, particularly in circumstances where mandamus is not out of time.

So the main argument about abuse must be that the decision of the delegate on 16 June 2015 was a constructive refusal by the Minister to personally carry out the duty and the plaintiff should have commenced an application for an order to show cause in this Court at that point in time, and it is effectively an argument saying to the plaintiff, “Well, you have wasted administrative resources of the AAT and you have wasted some judicial time”.

Now, can I make this submission, that an abuse argument is a particularly poor one for the Minister to make in this case given the judicial resources, not to mention the plaintiff’s time in detention that has been wasted on a section 501(1) flawed decision.  But, in any event, it is without merit for this reason.  First of all, can I start from the decision of this Court in Re Refugee Review Tribunal; Ex parte Aala.

HER HONOUR:   Yes.

MS DE FERRARI:   Your Honour will be familiar with that case.  Now, no argument of abuse whatsoever was raised or contemplated by this Court even though the prosecutor in that case had pursued judicial review proceedings in the Federal Court and an appeal in the Full Federal Court.  So delay in not immediately bringing the proceeding to this Court cannot, in my submission, amount to abuse of the process of this Court.

Now, in that case, that was under the old Part A split jurisdiction, but here it applies really as well because certiorari with respect to the delegate’s decision just could not have been sought in the Federal Circuit Court, and more than that.  Let us assume that the Minister – let us assume that the plaintiff had tried to run an argument about mandamus to compel the Minister personally in the Federal Circuit Court and I will leave hanging the question of whether they could have been done without impeaching at least collaterally the decision of the delegate.  He clearly would have been met with arguments for this question of refusal of relief in circumstances where he had not even tried to get merits review ‑ ‑ ‑

HER HONOUR:   You mean refused on discretionary grounds?

MS DE FERRARI:   Well, he would have, your Honour.  I mean, he would have been seeking mandamus to compel the Minister personally – no, your Honour knows this ‑ writ of mandamus and that used to be a theory that did not even go against the Crown, so he would have been seeking a very special relief in circumstances where he says, “Well, I have to do it now because the delegate has purported to hand down a decision and he has no power” and the Minister would have said, “Well, go for merits review”.

So really the high point, I think, for the Minister in terms of the cases that the Minister has so far cited is the decision of Vella v The Minister and I want to deal with it in my main submissions, if I may.

HER HONOUR:   Yes, certainly.

MS DE FERRARI:   Because this case and Vella could not be more different.  Now, in Vella, what the plaintiff did was seek to challenge in this Court the Minister’s decision to cancel a visa under section 501(3).  I think it was actually a delegate decision but it is neither here nor there.  Now, he had earlier sought in the Federal Court review of the Minister’s refusal to revoke that cancellation, so the situation was the plaintiff came to this Court seeking to challenge a first in time decision when he had earlier gone through the whole judicial process, Federal Court and Full Federal Court, seeking to challenge ‑ ‑ ‑

HER HONOUR:   I understand how you have put it.  You say in Vella and the other cases that have considered it since there has been a decision of, for example, does not matter whether it is Minister or the delegate which is challenged initially on its merits and then by judicial review all the way through the legal hierarchy.  You say your position is different.

MS DE FERRARI:   Yes.

HER HONOUR:   You say that you are seeking to challenge for the first time ‑ ‑ ‑

MS DE FERRARI:   Lack of power.

HER HONOUR:   ‑ ‑ ‑ lack of power; I understand the argument.

MS DE FERRARI:   In that case, your Honour, I will just move onto the merits.   Now, your Honour understands, I think, how the argument runs generally.  Now, it cannot be doubted that at a time – on the chronology and the evidence it cannot be doubted that at a time between 12 December 2012 and 25 July 2013 the Minister personally commenced consideration of the plaintiff’s application.  Now, that must have been under section 47(1).  Very arguably it was under the complementary duties in 47 and 65 the way that this Court has considered them in Plaintiff S297.

So it is a period.  So let us pick a date.  Let us pick 12 December 2012 when the Minister personally consider.  Now, the plaintiff application for a visa was valid as of that date when the bar was lifted and at that date as well under section 65A the Minister had to make a decision within 90 days under section 65.  Now, I think it cannot be disputed in any way that the Minister has never reached the exit point of section 47(2)(b).  The decision that he sought to make has gone, it is quashed.

HER HONOUR:   I think it is put against you that it is gone, it is quashed.

MS DE FERRARI:   Yes, so he has never got out of – so he is under the duty in section 47 ‑ ‑ ‑

HER HONOUR:   That is the question.  The question is, as I understand it, in a sense, two questions.  First of all, the chronology goes as follows, as I understand it:  the Minister refuses the application under section 501, that decision is quashed.  What is the effect – one of the legal questions is what is the effect of that quashing, but in two parts in relation to both the decision itself and the exercise of the power by the Minister – that is two questions – because if, as the Minister would have it in a sense it is at an end, then the question which arises is what is left for there to be done? 

MS DE FERRARI:   Yes.

HER HONOUR:   Now, if it is left to be done that it is, in a sense, start the process again, that is the question, start afresh, that is in effect answering some of those questions, then the question which arises is whether there is anything in the statute or otherwise that requires the Minister himself or herself to consider it afresh?  The Minister says there is nothing in the Act and no other basis upon which such an implication could be found.  So I think we need to make sure we are clear about I think what happened.  We have a decision under section 501.  That decision is quashed, back to the start.  The question is what is the start? 

MS DE FERRARI:   Yes.

HER HONOUR:   You would have it is a start with some baggage.  The Minister would say it is a start unencumbered by the baggage.  To be blunt that is the distinction between you.

MS DE FERRARI:   Yes.  I do not think I would put it with some baggage, that is the…..

HER HONOUR:   Well ‑ ‑ ‑

MS DE FERRARI:   Can I go to section 47?

HER HONOUR:   Sure.

MS DE FERRARI:   The way the plaintiff puts it is that, well, the baggage, if your Honour likes, is subsection (1).

HER HONOUR:   It is probably the wrong word, but in a sense it is subject to something, that is, it is not as if there is a clean slate there.

MS DE FERRARI:   But, your Honour, in the plain terms of section 47, we are at the point where ‑ ‑ ‑

HER HONOUR:   Section 47(1) says:

The Minister is to consider a valid application for a visa.

MS DE FERRARI:   Yes, and the Minister was doing that.

HER HONOUR:   So absent these facts, you accept, I think, that that is possible for read with section 496 and the Acts Interpretation Act for that to read “the Minister or a delegate of the Minister”. 

MS DE FERRARI:   Yes.

HER HONOUR:   So, on the clear words, that is an option that is open.  There is nothing preventing the Minister delegating that power.

MS DE FERRARI:   There is, your Honour, because once you have actually – it is section 47 itself – once you have actually commenced ‑ ‑ ‑

HER HONOUR:   That is the question ‑ ‑ ‑

MS DE FERRARI:   Yes, I understand, I understand.

HER HONOUR:   So the question is here two things.  One, is there a general principle that once you have started you have got to do it personally, and, second, if that is such a principle, does it arise in this case?

MS DE FERRARI:   Yes.  Can I illustrate the point, in a sense, by jumping ahead?  So, accepting that the Minister started considering it personally, can I jump ahead then to the point where the Full Court quashed the section 501 decision ‑ ‑ ‑

HER HONOUR:   Yes.

MS DE FERRARI:   ‑ ‑ ‑ which is 9 April 2014.

HER HONOUR:   Yes.

MS DE FERRARI:   Now, at that point, in my submission, you look at section 47(1) and you look at section 65 because at that point there is no argument about bifurcated decision‑making.  We are back squarely within what this Court has said about this supervision work as complementary duties.  Now, at that point there is no doubt that the only person who had ever got through the gate of 47(1) is the Minister personally, and the way this Court has construed it, there is no way that the only way on the facts of this case you get out of it, the Minister, is by either granting or refusing to grant a visa.  The only way he could do that is by discharging the duty covered with a power in section 65, and the only way the Minister could do that is by forming a state of satisfaction.

Now, it becomes of some importance the fact that at this point it is a state of satisfaction, is something that an individual decision‑maker has to make.  The only decision‑maker, when the Full Court quashes a decision, is the Minister personally.  Now, one then gets to the point of saying well, you have got two imperative duties ‑ and it is a Project Blue Sky argument, your Honour, which again is the approach that this Court took in Plaintiff S297.

You have got on the one hand two imperative duties, the complementary duties in section 47 and section 65.  On the other hand, you have got section 496 which at its highest it is not even a subordinate provision in the way that the High Court spoke in terms of Project Blue Sky.  At best it is a facilitative provision to assist in a framework for doing things generally speaking and when the conflict arises, which it does, you have to try and reconcile them and how do you reconcile them?  Well, the way the Minister reconciles them is to sort of say you give priority to section 496(1) and any general delegation that might have been floating around at that time.

Now, in my submission, that is untenable having regard to the fact that sections 47 and 65 have the quality that they have, imperative duties, and require a state of satisfaction by a decision‑maker.  It is even more untenable when regard is had to section 496 itself because it contemplates in subsection (3) and (4) the particular circumstances of the complementary duties of sections 47 and 65, so in particular circumstances one imperative duty that may be able to otherwise generally be delegated under 496(1).

With respect to that particular duty, the only way you can partition the task is by having ‑ the task of reaching a state of satisfaction is by having one person dealing with the health criterion, another person dealing with everything else.  Now, in my respectful submission ‑ ‑ ‑

HER HONOUR:   But is that not – sorry, just to pick you up on that point.  Is not 496(3) and (4) dealing with bifurcation in relation to one of the criterions by reference to the fact that it is a health criterion?  It is not dealing with bifurcation generally.

MS DE FERRARI:   No, I am not talking about bifurcation in respect of 501.  I am talking about ‑ ‑ ‑

HER HONOUR:   Not about 501, we are talking about 47 and 65.

MS DE FERRARI:   Yes, how you partition the task.  So the task which is imposed by what this Court has described as “complementary duties” is to reach – mandatorily you have to reach a state of satisfaction one way or the other.

HER HONOUR:   Yes.

MS DE FERRARI:   Now, in terms of mandatorily reaching that state of satisfaction, which must be of a person, the Act sort of says, well, at the highest what you can do is give one bit of a satisfaction to be done by a delegate with a health criterion and everything else by the other person.  So here we have got a situation where the Minister…..mandatory duties.  The only way – he is now dealing with a valid application for a protection visa.  The only thing that 496, a facilitative provision, contemplates is that he could partition the task which he is under personally by giving the health criterion to someone else.

HER HONOUR:   This is the question though, Ms De Ferrari, is which bit has been partitioned off here.  It presupposes that there is – we come back to what is the effect of the quashing of the Minister’s original decision.

MS DE FERRARI:   The quashing of the Minister’s original decision is that the Minister ‑ going back to section 47, the Minister is simply no longer out of section 47 because the requirement to continue to consider, which he clearly embarked upon, has not been reached.  That is the effect of it.  Any other reading of what happened is to give primacy to a facilitative provision in 496 and some sort of floating in the air general delegation.  That must be the only way in which the Minister can make good his argument.

Now, your Honour would know that in the written submission I have dealt with research on whether there are any other cases and the only other case is the case of Seventh Mingcourt, the decision of Justice Branson.

HER HONOUR:   I have read that, yes.

MS DE FERRARI:   If your Honour read the passages and where her Honour talks about function replaces duty coupled with a function then we know precisely what her Honour was saying.  Unless I can assist.

HER HONOUR:   Thank you.  Mr Wood.

MR BROWN:   Brown, sorry, your Honour.

HER HONOUR:   Brown, sorry; I keep doing that, I apologise.

MR BROWN:   It is not the first time it has been done, your Honour.

HER HONOUR:   I apologise.

MR BROWN:   I take it as a compliment.

HER HONOUR:   Good on you.

MR BROWN:   Your Honour, I will not spend any time on delay really because, in a sense, the abuse that we suggest is in a very narrow and technical sense and it is this, your Honour.  It is the undertaking of inconsistent processes involving at the apex the judicial power of the Commonwealth to attack essentially the same decision or the same series of decisions made under the Act.

So there was a decision – I beg your pardon, your Honour.  After Mr Tubridy made his decision, the plaintiff then had a decision point.  It could come to this Court and make their arguments now sought to be made or could engage in the processes contemplated by the Act, which is to seek merits review and then have that subject to judicial review in the case of alleged jurisdictional error, and that is the path that was chosen, and that necessarily involved an acceptance that the exercise of power by Mr Tubridy was valid.

So, having undertaken that process, the plaintiff now seeks to return to the start and via another route engage the judicial power of the Commonwealth, and that is all we say.  It is that inconsistent route, inconsistent positions and we have cited a case from Justice Gyles from 2000 in the Federal Court where his Honour makes some description of why that sort of process is an abuse.  We do not put it any higher than that, your Honour.  I am sorry, I thought your Honour was reading.

That is all we say about delay and abuse.  I can move straight to the merits now, and I think, your Honour, we have said all we wish to really say in our written submissions so I will be very brief.  Following the exchange that your Honour had with my friend, we say that simply as a consequence of the Full Court’s orders the duty, whatever it was or it is quite clear what it was, remains unfulfilled and there is nothing in the statutory scheme.  Whatever might have been done or whatever the baggage was before that, there is nothing in the statutory scheme that would prevent the fulfilment of that duty through the ordinary process contemplated by the Act which includes a delegation of power under 496 for the purposes of section 65 of the Act.

So, your Honour, the terms of the duty can be accepted but so can the scheme which contemplates the performance of that duty through a delegate, and there is nothing to suggest even if the Minister himself as it was commenced that, that that could not be completed by a delegate.  We do not say that is the case because we say as a consequence of the Full Court’s orders there was nothing, the earth had been expunged of the

consequence of the Minister’s attempt to fulfil his duty.  That is all I wish to say, your Honour.

HER HONOUR:   Thank you.  In the circumstances and given the extensive written submissions filed by both of you, I propose to provide written reasons dealing with this matter.  They will be available in a couple of days’ time.  The parties will be notified and it will not be necessary to attend Court for the handing down of those reasons.  Is that all right?

MR BROWN:   As your Honour pleases.

HER HONOUR:   Ms De Ferrari?

MS DE FERRARI:   Yes.

HER HONOUR:   Thank you.  Adjourn the Court.

AT 11.32 AM THE MATTER WAS ADJOURNED