SZJOZ v MIAC

[2008] HCATrans 390

[2008] HCATrans 390

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S310 of 2008

B e t w e e n -

SZJOZ

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 2008, AT 3.10 PM

Copyright in the High Court of Australia

MR J.K. KIRK:   May it please the Court, I appear with my learned friend, MS A.M. MITCHELMORE for the applicant.  (instructed by Gilbert & Tobin)

MR G.R. KENNETT:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor – Sydney)

GUMMOW J:   Yes, Mr Kirk.

MR KIRK:Your Honours, may I begin by acknowledging that the task which I now undertake, namely seeking special leave in relation to an exercise of discretion, is not normally the sort of matter which might be thought to ‑ ‑ ‑

KIRBY J:   You had noticed that problem?

MR KIRK:Yes - to attract special leave.  Nevertheless, we submit that in this particular case, broader issues of principle do arise, most particularly the issue of whether and in what way the nature and significance of the statutory power or duty in question must be taken into account when exercising one of the two discretions that were potentially involved here. 

May I briefly deal with the facts and then come to the core legal point as we put it.  As your Honours will be aware, my client, the applicant, applied for a protection visa at the end of 1996 which was refused in 1997.  He appealed to the Tribunal and the Tribunal refused his application in April 1998.  A key point for what was decided below was that the application that was put into the Department was substantially incomplete.  Key parts of the relevant form were simply not filled in and the key information was not provided.  That was corrected when it came before the Tribunal in the sense that the Tribunal were supplied with that information, although the information was never supplied to the Department.

In relation to the Tribunal decision of 1998, my client did not seek judicial review.  There were certain facts as to the extent to which he found out about the Tribunal decision and his understanding of it.  In any event, an application was made to the Minister under section 417 of the Act for a personal exercise of discretion to grant a visa which was refused.  My client did not find out about that, because the migration agent had moved on, until 2007.

An eight‑year period elapsed between the Tribunal decision in 1998 and my client seeking to put his house in order.  Encouraged by religious clergy he sought the assistance of a refugee service and then my instructing solicitors leading to a new application being put in to the Department in 2006.  That application was refused on 10 August 2006.  The reason it was refused is that it was said by the delegate of the Minister that the first decision, the decision affirmed by the Tribunal back in 1998 was considered to be a valid application.  It had been refused by the delegate and thus section 48A of the Migration Act applied.

Now, section 48A can be found in our submissions - at least subsection (1) - at page 117 of the application book in paragraph 8.  I should add that the delegate’s decision referred to a potential reference to the Minister who could choose to ‑ ‑ ‑

GUMMOW J:   There is no further application but that postulates a prior application which was effective.

MR KIRK:Yes.

GUMMOW J:   We have grasped that.

MR KIRK:I just want to briefly explain now the circumstances of the delay which led to the need for an extension of time in the Federal Magistrates Court.  The delegate’s decision in August 2006 referred to the matter being referred to the Minister for consideration of whether or not section 48A should be waived pursuant to section 48B.  My client relied upon that and thus did not put in an application for judicial review to the Federal Magistrates Court until some 78 days after he had learned of the decision.

That was thus outside the 28‑day period provided for in section 477(1) of the Migration Act in relation to review applications to the Federal Magistrates Court, but within the further 56 day provided for in subsection (2) that is a contingent period in the sense that the court has a discretion to allow an extension of time if satisfied that it is in the interests of the administration of justice to do so.

There were two issues that were argued both in the Federal Magistrates Court and then in the full Federal Court.  The issue which occupied most attention in both courts was the legal issue as to whether or not section 48A ‑ ‑ ‑

GUMMOW J:   You only have 20 minutes, Mr Kirk.

MR KIRK:Yes.

GUMMOW J:   You have to get to the sharp point.

MR KIRK:Yes, I am seeking to do that, your Honour.

GUMMOW J:   For your own good.

HEYDON J:   Your point is this, is it not; the delay over the six or eight years does not count, it was an error to take it into account.  All that matters is the explanation of the days of delay that you have just gone to.

MR KIRK:Yes.  Can I put the sharp point this way, your Honours?  In essence, if I might paraphrase a little colloquially, the majority of the Full Federal Court in their reasoning, which is found at pages 64 and 65 of the application book in paragraphs 49 through to 53, there were two facts they took into account - the long delay and the renunciation, as it was said, of the earlier course that we had taken of invoking the Tribunal’s machinery.  That is referred to in paragraph 49, also paragraph 51.

If I might put that colloquially, in essence the majority was saying “Your client has had one good bite of the cherry, a bite back in 1998.  He is now seeking to have a second bite of the cherry.  We are not persuaded that that is an appropriate thing to do, therefore we refuse to extend time”.  In doing so, although the formal decision was a refusal to extend time, the majority at paragraph 50 also took into account principles relating to the general discretion.

In our submission, to take that approach, to take account of those two factors is to fail to take account of the provisions of section 47 of the Act.  Section 47 is extracted in our primary submissions at page 119, paragraph 14.  Section 47 provides in subsection (1):

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

That ongoing obligation ends in certain circumstances set out in subsection (2), none of which apply.  Subsection (3) states the converse provision:

the Minister is not to consider an application that is not a valid application.

Subsection (4) extends that.  Section 47 is not qualified in any relevant way, subject to section 48A.  In other words, the Minister cannot decline to consider a valid application because of some assessment of the past conduct of the applicant, whether it be that he or she has entered the country illegally, whether it be that he or she has associations with people that the Minister would consider undesirable, whether it be that he or she has sat on their hands for some long period of time before coming to make the application.  The provision is in clear and unqualified terms.

GUMMOW J:   We are talking about section 477, are we not?

MR KIRK:Yes.  My submission is that in considering the exercise of discretion ‑ ‑ ‑

GUMMOW J:   Under 477?

MR KIRK:Yes, 477(2), the court was obliged to take account of the nature of the statutory duty, which was here the one in section 47, because here the Minister was obliged to consider the decision regardless of the past conduct.  To put it another way, the facts upon which we lost exercise of discretion were known to the delegate – they had occurred by the time the delegate came to make the decision in August 2006.  The delegate was not permitted to take them into account.  The delegate was obliged to give effect to the discretion in section 47.

By making a decision which the majority regarded as erroneous, namely to apply section 48A where the majority found it should not be applied, the delegate gained the benefit of being able to put an argument as to why my client’s application should not be considered that was not available to him, namely these past facts should count against us to prevent this application being considered.

Now, in my submission, that is to fail to take account of the clear and relevantly unqualified statutory duty.  It is also inconsistent with the criteria in section 477(2), the focus of which is on the process of the administration of justice –what has occurred in relation to the proceedings before the court.  No prejudice was claimed by the 50‑day delay which was explained by the Minister.  It was simply put in general terms that these two prior factors should count against us.

In my submission, to take those factors into account was to fail to take account of the nature of the statutory duty was thus to fail to take account of a mandatory relevant consideration and was to misconstrue the statutory criterion, namely, the need to act in the interests of the administration of justice.

I started by acknowledging it is not the sort of matter which might normally attract a special leave application.  However, in our submission, this criteria is of importance for immigration appeals generally.  Moreover, it is the sort of criterion which arises in a number of judicial and curial contexts, and further, as I submitted, the majority also referred to principles drawn from the general discretion in relation to mandamus and constitutional writs.  The majority’s error as we put it therefore is relevant to administrative law generally.

For those reasons, we respectfully submit, this is one of those unusual cases where this sort of matter is appropriate for a grant of special leave.

KIRBY J:   What is the meaning of the “interests of the administration of justice” that you would be urging on us?

MR KIRK:I do not seek to urge that it should be construed in some very narrow manner.  I accept of course it is not something which ‑ ‑ ‑

KIRBY J:   A generalised thing, that it is difficult to think that we would be able to throw any great light on the meaning of the phrase in the context of this case.

MR KIRK:But what it should not mean, in our respectful submission, that some – with no disrespect to the majority – general value judgment or subjective judgment about the merits of the behaviour of the person in question should be used as a basis for refusing or granting relief and we submit that is what occurred here.  It may well be in a sense that my client is not virtuous in that he should have done something in that eight‑year period, but just as the rule of law sometimes punishes those one might consider virtuous, so too the rule of law sometimes allows those who are not the most virtuous in the world to seek the relief of courts and to obtain relief, including on procedural steps.

So first we submit that should not have been taken into account; secondly, the focus should have been consideration relevant to the curial process rather than to factors which had occurred prior to the delegate’s decision in which the delegate himself or herself would not have been permitted to take into account.

GUMMOW J:   You repeat the submission that is set forth at page 64 on paragraph 48 of the Full Court judgment.

MR KIRK:In the first sentence, your Honour?

GUMMOW J:   Yes, because it is to that which the Full Court was responding, I imagine.

MR KIRK:Yes, it was far from the only way, in my recollection, that the matter was put.  It may be that that is too narrow a statement of the scope of the administration of justice in the way I have just sought to put it, namely a focus on matters of relevance to the process of the administration of justice should be what was taken into account and not more.  That would include matters such as, obviously, prejudice, the reason for delay.  Also, the legal merits of the case.

KIRBY J:   Would you just explain to me in brief terms the point of difference between Justice Moore and the majority?

MR KIRK:Yes.  That related to the first legal issue which was the main focus, namely whether section 48A meant that the Minister did not have to consider our new application.  Our argument, in simple terms, was that because the applicant had never provided a full and complete application to the Department, there was never any valid application that both the delegates and the Tribunal therefore should not have considered it; they were required by the legislation to not consider it.  The Tribunal went on to do so.  We said that that meant the Tribunal decision was invalid, and indeed the majority accepted that at ‑ ‑ ‑

KIRBY J:   Justice Moore came to the same orders in the end.

MR KIRK:He did, because we lost on discretion.  I should indicate too that there were potentially conflicting Full Federal Court authorities.  We sought to reconcile them.  The majority accepted that.  My learned friend argued that one of them was plainly wrong.  That was not accepted by the majority.  Justice Moore said section 48A does not apply only to valid applications.  It also applies to an application which has been considered, even if not valid.  His Honour thus did not need to decide whether one of the Full Court decisions we relied on, Li, was plainly wrong or not.

It was on that basis that Justice Moore then said he declined to exercise the discretion on the basis that to do so was futile because we had lost on the merits in his Honour’s view.  I accept, incidentally, that that is a relevant consideration – the legal merits of utility, but the things we lost on for the majority, I submit, were not.

KIRBY J:   But could you not lose then on – in this Court – Justice Moore’s approach?

MR KIRK:Yes, we could, if the notice of contention was raised.  The Minister has flagged that as a possibility in paragraph 13.  I know this is not a not unusual submission in this type of case, but I would have been hard pressed to resist special leave on that question had I lost on it.  A senior Full Court was sat because an application was to be made that a decision of a previous Full Court was plainly wrong.  It was the subject of argument over two days.  There are certainly tensions between Full Federal Court decisions, albeit we submit they are reconcilable in a particular way.  In the end, for better or worse, we won on that argument but lost on the discretionary argument – we fell at the final hurdle.  Our point is in a sense a fairly confined and focused one.  The other one is also a point of importance, albeit I cannot seek special leave on it, obviously enough.

KIRBY J:   What was the ground of persecution sought here?

MR KIRK:My client is a member of the Roman Catholic Church as opposed the Chinese Official Catholic Church and he claimed that on that basis he was persecuted in China.  There were various personal episodes which probably do not need to be repeated here as evidence of the persecution.

GUMMOW J:   Thank you.

The applicant SZJOZ seeks special leave to appeal against orders entered by a unanimous decision of the Full Court of the Federal Court of Australia.  Those orders confirmed a decision of the Federal Magistrate under section 477(2) declining to extend the time permitted by section 477(1) of the Migration Act to bring proceedings in the Federal Magistrates Court to seek judicial review of a decision of the Refugee Review Tribunal. 

The order of the Full Court, as with the Magistrate, was interlocutory in character although final in effect.  It was discretionary in nature and the basis of the discretion was extremely wide being whether it was “in the interests of the administration of justice” to grant the extension.  We agree with what was said in the Full Court by Chief Justice Black and Justice Allsop that this phrase demonstrates the wide and general nature of the discretion. 

We do not consider the applicant has shown reasonable prospects of success in demonstrating error in the conclusion reached in the Full Court.  This Court rarely intervenes in discretionary matters of such a kind upon which reasonable minds often may differ.  Special leave therefore is refused with costs.

That leaves in the list applications 7 and 8 and they will be further considered for the making of orders by Justice Heydon and myself at 9.30 am on Monday, 17 November 2008.  Accordingly, the Court will adjourn until 9.30 am on Monday, 17 November 2008.

AT 3.30 PM THE MATTER WAS CONCLUDED