Stretton v Minister for Immigration and Border Protection

[2016] HCATrans 200

[2016] HCATrans 200

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B13 of 2016

B e t w e e n -

KEITH ANTONY STRETTON

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

Application for special leave to appeal

GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 SEPTEMBER 2016, AT 9.31 AM

Copyright in the High Court of Australia

MR J.M. HORTON, QC:   If it please the Court, I appear with my learned friend, MR B. McGLADE, for the applicant.  (instructed by Bosscher Lawyers Commercial)

MS K.A. STERN, SC:   May it please the Court, I appear with MS A.L. WHEATLEY, for the respondent.  (instructed by Clayton Utz Lawyers)

GAGELER J:   Yes, Mr Horton.

MR HORTON:   Your Honours, this application concerns the ascertainment of the proper boundaries for the range of acceptable outcomes in the context of the statutory alternative which presented extremes to the decision‑maker.  In relation to my client’s crimes, the decision‑maker could either do nothing, that is, allow my client to remain, or deport.  It allowed no mid‑range decision‑making.  In circumstances where, on any of the accepted views, my client was at low risk of re‑offending, it raises squarely the consideration of whether the decision was disproportionate.

GAGELER J:   Do you need to support the reasoning of the primary judge?  Ultimately, are we getting to the last paragraph of Justice Logan’s judgment?

MR HORTON:   Yes.  In terms of – is your Honour speaking of the remittal, that is, deciding that the matter ought not be remitted?

GAGELER J:   No, I am sorry, paragraph 60, page 40 of the application book – the last substantive paragraph in his reasoning.  Is that where the argument heads or is there some alternative landing place?

MR HORTON:   I think it is where the argument heads and this is why it is a disproportionality case – or at least raises the issue.  The statute does not permit of any new point.  If it were otherwise, we might be arguing about only a jurisdictional error in terms of the justifiable reasons - in terms of an intelligible justification of the reasons.  But here because, we say, on the reasons they disclose, as has been found, no discernable error ought not preclude the court – and the Court regards itself, it seems, as precluded from investigating further the error along the lines of House v The King – discerning the proper boundaries.

The error below, with respect, was this.  Their Honours in the Full Court seemed to say this – seemed to be in fear, if you like, of descending into the merits, a legitimate concern in the case of a review for unreasonableness.  The difficulty here is their Honours having completed the analysis of the reasons and found that they displayed an intelligible justification for the result reached did not seem to proceed further in asking whether on the House v The King test manifestly unjust, discerning the proper boundaries, if you like, of the discretion to be exercised was within the rubric of what they were to attempt.   

One can be sympathetic with that to one extent because this is a senior member of the Executive making the decision and we know that Ministers, in case of a wide discretion, ought to be given a wide berth in terms of the area of decisional freedom.  But this was one of those rare cases where it was called for to undertake the second of the two approaches to be undertaken in unreasonableness – the paradigm of proportionality, if you like – or as your Honour Justice Gageler said at paragraph 105 of Li – ascertaining the proper boundaries for the exercise of discretion by reference to the facts and the law by judicial exercise.

GAGELER J:   It is difficult to say that Chief Justice Allsop did not engage in that process.

MR HORTON:   Of the three judges below, Justice Allsop is the one who most did the exercise.  It seems Justice Wigney did not, on our submission, do so at all and Justice Griffiths did so tentatively but by reference back all the time to the reasons.  The difficulty is this – I will come back, if I can, to the Chief Justice in a moment.  If one is constantly asking oneself whether the reasons disclose an intelligible justification, one will never ascertain the proper boundaries because the proper boundaries exercise is an external exercise – on the cases, the word that is used is “objective”.  But we would say that really means an external reference point to check the boundaries.

If one is constantly referring to the reasons in that exercise, one has never ascertained the boundaries, within whatever boundary the decision‑maker has set for himself or herself, whether that be a court or a judicial decision‑maker.  The error, we say, in the Chief Justice’s reasons is really twofold.  His Honour sets an unachievable standard in this sense.  His Honour says unless one could find that danger to young people is “eliminated” – and his Honour uses that word at application book 59, paragraph 22 – it appears at the top of page 59 – recognising there was a low risk of re‑offending, in the last sentence his Honour says:

In circumstances where the risk of such re‑offending could not be eliminated –

We say that is in error because it selects an improper boundary and says this decision can be defended if one selects from the national interest test, the widest possible test perhaps known, and selects only one of the possible purpose of the national interests and then says, with that purpose, unless one eliminates the risk the decision is justifiable.  

GORDON J:   Do you not have two problems though?  The first is this.  It has to be tested against the statutory context which includes, as you say, the national interests and this other consideration.  The consideration that is raised is not irrelevant.

MR HORTON:   No.  It is certainly relevant.  But it is an impartial test.

GORDON J:   The impartiality, though, is my point.  It is just one of the factors that has been taken into account. 

MR HORTON:   Yes – and incomplete, because it is a factor.  We cannot cavil with that.  It is a factor to which you may give great weight.  But it is also a case within the realm of what Justice Mason said in Peko, what Justice Deane said in Australian Broadcasting Tribunal v Bond – that there are rare cases, perhaps, where one must go further and ask whether the weight given was proper.  This is such a case because of that dichotomy.

GORDON J:   It depends upon the statutory context, does it not?

MR HORTON:   It does.

GORDON J:   Here you have no indicia provided by the statute.  Someone has to look at the statute as a whole and the provision within the statute to determine its context.

MR HORTON:   Yes.

GORDON J:   Do you accept that the factor is a relevant factor - the weight that is given to it is a matter for the decision‑maker?  We may not agree with it but it is not irrelevant if the weighing exercise has been undertaken.

MR HORTON:   We do not accept the weight given to it, your Honour.  We agree with everything your Honour has said.  We do not accept that the weight given was right.  That is our complaint.  Ordinarily, administrative review, of course, is a place that we cannot intrude upon, but this is a rare case for the reasons of statutory context, i.e., deportation or remain – two options posed to the Minister.  But the statute cannot say – cannot direct, in effect, cannot excuse a disproportionate decision by saying, “We give you one of two alternatives”. 

So, in this case, which one might say – although the criminal offending was not trivial – was at the low end of the range, one cannot say that a statute can give a decision‑maker power to make a disproportionate decision by saying you only have two choices. 

In any case where there is a conviction which results in imprisonment for more than two years, it is open to send them to some other place.  Especially on the facts of this case, of the 54‑year period here, the fact that for at least some of the time this man was regarded – while Patterson’s Case lasted - as a non‑alien and the fact that 22 family members were here and the children and grandchildren being Australian citizens - so that combination of factors, your Honour, statutory context which we accept as relevant – the paucity, if you like, of the considerations to be applied but the strong facts which raise the consideration whether, in that extreme statutory test, this man lay at one end or the other.

GAGELER J:   All right.  So, this, according to you, is a case of unreasonable weight being given to a relevant consideration?

MR HORTON:   One might express it – that is one way to express it.  If one uses the language of Justice Mason in Peko that is the way one would express it.  One could use the language of Justice Deane in Australian Broadcasting Tribunal v Bond and say lacked minimal proportionality.  We know that has not received the acceptance necessarily from the Court today, that formulation.  Or one might put it in the terms your Honour put it at paragraph 105 of Li.   

GAGELER J:   I do not think I used the language of proportionality.

MR HORTON:   Your Honour did not.  That is why I am raising it as a separate possibility.  Your Honour talked about framing the proper boundaries.

GAGELER J:   Yes.

MR HORTON:   With respect, that – and that is why I opened the application for that reason – is that that really neatly frames what is at stake here.  If it were a case where one could not ascertain those boundaries because this was not an exercise with which the courts were familiar, that is, one would be transgressing to the policy or opinions which are to be exercised by the Minister alone within the area of decisional freedom, that might be a different case.  But the question here for the Court, in our respectful submission, is can your Honours be familiar with the exercise which underpins framing the proper boundaries?

We say yes because, not only of that extreme dichotomy – one which raises a question for this Court about where one lies in the spectrum – but the facts to be assessed which are peculiarly judicial activities – proper weight in extreme circumstances and the result which on the facts and the law, the range of outcomes which is acceptable.

We are not seeking to descend into the merits.  We are not seeking to replace the Minister’s opinion.  We would frame it in terms that your Honour did in Li as setting, if you like, the evaluative boundaries.  In another context, it might be said to ensure the Minister asked himself the right question.  In no case ‑ ‑ ‑

GAGELER J:   Well, you cannot frame it that way, can you?

MR HORTON:   Not in the traditional sense because – but in a sense where the criteria are un‑enumerated as Justice Gordon has pointed out it calls upon that sort of test.  But we accept in the rare case, but this being one of them.  So when the Chief Justice says in Li, for example, not every rational decision is reasonable, we would embrace those comments in the same context, that is, if one ties oneself all the time to the reasons given by the decision‑maker and never asks for the external reference point – something that really only a court can do in this context – then error will result because one has never fully pursued the other limb or another limb of the unreasonableness test.

GORDON J:   The consequence for your submission is, though, is it not, that it is very difficult to draw the line between that and merits review?

MR HORTON:    Very difficult.

GORDON J:   Which is one reason why so far the courts have not embraced this concept - in other words, so long as you have a decision which is within the statutory power – so, one looks at the power, one determines what, in a sense, the parameters are, one says it is either deport or stay, there is a reasoned and rational basis for the decision – you may not agree with it - it is difficult to then draw a line between that and then subsequently enter into merits review which, of course, we have never done.

MR HORTON:   Difficult.

GORDON J:   And where is the line?

MR HORTON:   The line is – and the way we have framed it, your Honour, which is determining the range of possible outcomes – the evaluative criteria.  We must not ‑ ‑ ‑

GORDON J:   What does that mean?  Deport or stay?

MR HORTON:   Except in this instance - there may be cases and, perhaps, his Honour the trial judge was referring to this when he refused to remit, in effect – saying there may be cases where the extreme outcome is unavailable to the decision‑maker.  The statute, having set itself the two extremes, may also preclude the exercise of the extreme case in circumstances – which does not approach it into the spectrum. 

It is that gap between the two extremes which placed this case beyond – above a merits review.  We accept we cannot descend into merits but it is something the courts have not recognised, with respect, your Honour.  Justice Mason recognised a type and Justice Deane recognised a type.  The decisions in Li recognise it - the Chief Justice very clearly - his Honour Justice Gageler in a different formulation – and the plurality, by recognising that House v The King has analogous operation in the field.

GAGELER J:   All right.

MR HORTON:   May it please the Court, they are our submissions.

GAGELER J:   Thank you, Ms Stern.

MS STERN:   Your Honours, we make two overarching submissions.  The first is that the criticisms that are made of the judgments of the Full Federal Court are not well founded.  Rather, the Full Federal Court judgments clearly recognise the potential role of proportionality as one route leading to a finding of unreasonableness.  But, analysed on the facts of this case, this decision is not transgressing that boundary, whether one had regard to it as a pure reasonableness or as a reasonableness informed by a proportionality analysis. 

Secondly, the criticism that is advanced that the Full Federal Court in some way elided consideration of reasons and the reasonableness, having regard to outcome, we say that criticism is not well founded and that when one looks at the judgments in the Full Federal Court, they were well aware that there were two different routes that one might take to get to a finding of unreasonableness and they had regard to both on the facts of this case.

The third criticism is that the Full Federal Court in some way found that the public interest and the protection of the Australian community trumped proportionality.  We say that is just the wrong way of looking at it and that one cannot ‑ ‑ ‑

GAGELER J:   I do not think it was put that way today.

MS STERN:   No, well, there was an analysis ‑ ‑ ‑

GAGELER J:   It was a hint, perhaps.

MS STERN:   ‑ ‑ ‑ that it had been given excessive weight and it was put that way in submissions and the special leave questions were framed in the sense that the submission Mr Horton made this morning that there had been excessive weight and that, in some way, that public interest overrode proportionality.  We say it puts the cart before the horse and that one cannot, indeed, conduct any proportionality or reasonableness analysis without first construing the statute and identifying, having regard to scope, object and purpose, what the legitimate bound of decisional freedom is.  So the first submission, in summary, we say that the criticisms of the Full Federal Court are just not well founded.

The second question that is said to be raised is the proper role of proportionality in the reasonableness analysis.  I appreciate Mr Horton did not spend time on that in the oral submissions but has identified as one of the special leave questions.  We say, quite simply, this is not a good vehicle to consider that question. 

The judges in the Full Federal Court reached the conclusion, having regard to an analysis or characterisation of the outcome of the Minister’s decision that it was not a disproportionate decision and that it did not transgress the bounds of decisional freedom.  So in those circumstances we say this simply is not a good vehicle within which to seek to raise any further question as to the proper role of proportionality and the analysis of reasonableness.  In any event, that has been recognised in Li and the judgment of the Chief Justice and in the plurality judgment and the Full Federal Court in this case applied that analysis.

Your Honours, in order to make good that submission, if I could go, please, to the judgments of the Full Court.  The judgment of the Chief Justice commences at page 51 of the application book.  Your Honours will see, at page 51, at about line 13, that his Honour – correctly, we say – identified that:

it is unhelpful to approach the task –

of characterisation of a decision as unreasonableness:

by seeking to draw categorised differences between words and phrases such as arbitrary, capricious, illogical, irrational, unjust, and lacking evident or intelligent justification, as if each contained a definable body of meaning separate from the other.

Then your Honours will see, over the page, at page 52, line 31, his Honour identified as one of the paradigms or identified cases of unreasonableness where:

the principle that it is open to infer legal error if the result of the decision appears unreasonable assuming the correct question was addressed and the law was followed in the making of the decision –

having regard to the well‑known dicta from Avon Downs and at the top of the next page, again, expressly identified the approach that one might ask whether the laws were:

partial and unequal or manifestly unjust, or by operation they involved oppressive or gratuitous interference with rights –

So all of those potential considerations were well recognised by his Honour and his Honour then applied that analysis.  One sees that at the bottom of page 53, paragraph 9.  His Honour said:

The conclusion that a decision is legally unreasonable by reference to the outcome, whether or not there are reasons therefor, is assisted by reference to expressions taken from cases such as those mentioned in [5] above.

So his Honour was clearly well aware that one could have a finding of unreasonableness based upon the outcome, irrespective of whether there were reasons for the decision.  Where one then sees analysis or recognition of the role of proportionality is at page 54, at lines 18 to 20, where his Honour recognises that one of the matters that the Court would have regard to for legal unreasonableness is:

the relationship between unreasonableness derived from specific error and unreasonableness from illogical or irrational reasoning:  of the place of proportionality or disproportion ‑ ‑ ‑

GAGELER J:   Well, his Honour is, at that point, summarising the reasoning of the plurality in Li, as I understand it, and that takes him to his own formulation of the task of the court at the bottom of page 54, in paragraph 11.

MS STERN:   Yes, and there is one of characterisation.  We say that is a perfectly conventional application of what was said in Li and, indeed, in a number of cases leading up to Li.  Then at paragraph 12, again, the last three lines of paragraph 12, one sees his Honour identifying specifically that:

The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.

So, again, we see his Honour, quite correctly, identifying that there can be either of those two groups.  Paragraph 15, his Honour then identified the crimes that were committed by Mr Stretton and then, at the bottom of that page, he identified that:

There can be no doubt that one aspect of the scope and purpose of s 501 is the protection of the Australian community, including here vulnerable young children.

So, again, the identification of that interest comes from his Honour’s analysis of the scope and purpose of section 501.  There can be no error in that.  The importance of the statutory context is then apparent, when one looks at page 56, at line 4, where his Honour identified – and this really goes to the submission I made at the outset – that the removal of someone from Australia, such as Mr Stretton itself could have:

a quality of harshness that might, in other statutory contexts, together with the effect on him and his family, bespeak unjustness, arbitrariness or disproportion of response.

This is that one cannot, for the purpose of characterisation of the decision, characterise the decision as disproportionate or unreasonable without having regard to the statutory context.

GAGELER J:   Ms Stern, it is put against you that the reason that Chief Justice Allsop is just one of the three different strands of reasoning – and if you look at the reasoning of the other two members of the Court, it adopts a different and more problematic approach.  Do you accept that?

MS STERN:   Well, as to that we say – and it may be implicit that Chief Justice Allsop did consider the outcome but that, when one looks at the judgments of the remainder of the Court, they similarly considered the outcome and whether or not the outcome, on an outcome analysis, is one which went beyond the bounds of what is permitted.  If one could invite the Court to turn to page 80, paragraph 72, in the judgment of Justice Griffiths.  It is the last two lines of paragraph 72.  Justice Griffiths found that:

it was reasonably open to the Minister to reach the ultimate conclusion which he did after properly weighing the relevant competing considerations.

Then paragraph 75, I think it is about line 13 – I cannot really see the line numbers on my copy, but it is about 10 lines into paragraph 75 – Justice Griffiths finds:

Once it is accepted that at least one of the purposes served by the power conferred upon the Minister under s 501(2) is to protect the Australian public, it is difficult to see how the Minister’s decision exceeded that purpose.

Now, I appreciate that my friend says that excessive weight was given to that purpose and it was, in some way, allowed to override any consideration of unreasonableness or a disproportionality.  But we say that, when you analyse the judgment of Justice Griffiths, as with the Chief Justice, he is considering the outcome of the decision, having regard to the legislative scheme and making a finding that this is not a decision that goes beyond that which was permitted.

One sees a similar analysis in the judgment of Justice Wigney.  Could I ask the Court to turn to page 89, paragraph 102.  Justice Wigney, at paragraph 102, towards the bottom of the page, third line into paragraph 102, finds:

it is equally clear that reasonable minds might differ in relation to the difficult decision that had to be made by the Minister.  It was at the very least open to the Minister to weigh up the competing considerations and form the view that the risk to the Australian public of not cancelling Mr Stretton’s via outweighed the hardship to Mr Stretton and members of his family –

So, your Honours, our submission is that the criticism is just not well founded and that each of the judges in the Full Federal Court considered the outcome and found that the outcome, having regard to statutory purposes, was within the bounds permitted.  So, your Honour, we say in those circumstances, that there is manifestly no error in the decision of the Full Federal Court, nor does it raise any question as to the proper application of the reasonableness standard.  Rather, it is a matter where the court did precisely what has been instructed from this Court repeatedly:  construed the legislation, identified from that the ambit of decisional freedom and characterised its decision as one that fell within that ambit.

GAGELER J:   Yes.

MS STERN:   So, your Honours, unless there is anything further I can assist with.

GAGELER J:   Thank you.  Mr Horton, do you have anything in reply?

MR HORTON:   Just one point in reply, your Honours.  Your Honours have been taken to the reasons particularly of his Honour the Chief Justice.  The criticism we make of the Full Court generally, but of the Chief Justice, with respect, in particular, is that the reasons to be scrutinised with this in mind, the argument we make is that the Chief Justice did not descend far enough, i.e. conduct an intense enough review.  So it may be that one does not on the reasons immediately see the error but the error is not descending sufficiently closely, if you like, to see it.

GAGELER J:   What, you mean more detail or more what?

MR HORTON:   To set better the boundaries of a statutory test which is very wide, but his Honour does not descend to set the boundaries within that wide test, albeit that those boundaries themselves may be wide.  The court stopped short of that, and that is a difficulty in the sense of identifying a specific error in what the court did, but the error, we say, is not going one step more to attempt to set some boundaries for a wide exercise of power bearing in mind the statutory test is wide setting, if you like, bookends one might say.

GAGELER J:   Very well.

MR HORTON:   If it please the Court, they are our submissions.

GAGELER J:   We will take a short adjournment.

AT 9.58 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.59 AM:

GAGELER J:   We are of the opinion that the prospects of success on an appeal were special leave to be granted are insufficient to warrant the grant of special leave to consider the questions of principle raised.  The application will be refused.

Are costs sought?

MS STERN:   We would seek costs.

GAGELER J:   You have nothing to say against that?

MR HORTON:   No, your Honour.

GAGELER J:   The application is refused with costs.

AT 10.00 AM THE MATTER WAS CONCLUDED