SZTES v Minister for Immigration and Border Protection and Ors

[2014] HCATrans 270

[2014] HCATrans 270

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S244 of 2014

B e t w e e n -

SZTES

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

REFUGEE REVIEW TRIBUNAL 

Second Defendant

FEDERAL CIRCUIT COURT OF AUSTRALIA

Third Defendant

Summons

BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON MONDAY, 1 DECEMBER 2014, AT 10.04 AM

Copyright in the High Court of Australia

____________________

MR S.E.J. PRINCE:   If the Court pleases, your Honour, I appear with my learned friend, MR P.W. BODISCO, for the applicant.  (instructed by SBA Lawyers)

MR A. MARKUS:   May it please the Court, I appear for the Minister.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes, Mr Prince.

MR PRINCE:   Thank you, your Honour.  The application – this is a matter that came up from the Federal Circuit Court in which an application to extend time was refused by the Federal Circuit Court judge which, because of the terms of the Migration Act, meant that no right of appeal lies to the Federal Court.  In this case, the applicant was 18 or 19 days out of time.  The Minister had consented to the extension of time, not simply not opposed it.  The substantive appeal was heard at the same time as the application to extend time.  Findings were made which, on a fair reading of it, looked like a decision on the substance of the appeal and then at the conclusion of all of that the only order made was to refuse to extend time in circumstances where the Federal Circuit Court judge accepted that the reason for delay in filing was acceptable. 

So the matter is put on a number of grounds in this Court.  Primarily, it can be broken down in two ways.  The first is what is, in effect, an application for judicial review against the decision of a Federal Circuit Court judge which we say could be dealt with by the Federal Court on remitter.  The second is the issue of the interaction of section 20 of the Federal Circuit Court Act and section 476A(3) of the Migration Act, which is what precludes the right of appeal to the Federal Court from a decision refusing to extend time. 

HER HONOUR:   Does the application for show cause raise that interaction? 

MR PRINCE:   Probably not as clearly as it should.  It is really a consequence or a limb of the argument about the operation of section 20 of the Federal Circuit Court Act because if your Honour goes to section 20 of the Federal Circuit Court Act - it has been provided to your Honour, as I understand it.

HER HONOUR:   Yes, it has.

MR PRINCE:   Subsection (1) says:

An appeal must not be brought directly to the High Court from a judgment of the Federal Circuit Court of Australia.

HER HONOUR:   Yes.

MR PRINCE:   While your Honour has that section open it might be worth going to subsection (3) which is the fallback position in the legislation and my friend has said something about there not being any basis for the application for special leave in this case but, of course, that application is made in the event that section 20(1) is invalid but it is saved or that it is limited by section 20(3).

HER HONOUR:   There would still be an issue, would there not, in an application to show cause seeking a grant of special leave, Mr Prince?

MR PRINCE:   It is a bit of a hand‑fisted procedure because we are faced with an alternative proposition in legislation and at the moment we cannot make an application for special leave because of the terms of section 20.  But section 20(3) really only comes into play if our principal application in relation to section 20(1) is successful and that is the way the language of the section is expressed.  So we are not really in a position to be able to file an application for special leave at the moment because we have not had a declaration as to the validity or otherwise of section 20(1). 

HER HONOUR:   Nonetheless, there is a procedural difficulty in the way the matter is presently framed.  It may be in the event that the substantive relief claimed in paragraphs 1, 3 and 4 were remitted to the Federal Court and were the Federal Court to hold against you on the section 20 point, you say you would then seek to make an argument respecting subsection (3).  Is that the position?

MR PRINCE:   We would have to be successful on establishing that section 20(1) is invalid.

HER HONOUR:   Yes.

MR PRINCE:   Because section 20(3) is prefaced on an assumption that subsection (1) is inconsistent.

HER HONOUR:   Yes, I understand.  But, in that event you would then seek to bring yourself within subsection (3) for the purposes of your special leave.

MR PRINCE:   Yes.  Yes, your Honour, that is right.

HER HONOUR:   In that event why would you not file an application for special leave?

MR PRINCE:   We would – and the application at the moment – it would be – we are in a difficult position, your Honour, because we cannot file an application for special leave on the present state of the law.  It would be incompetent.

HER HONOUR:   Yes, I understand that. 

MR PRINCE:   But we do not want the application to be silent as to the question of special leave in case section 20(3) ultimately comes into play.  But the reality is that if we are successful in arguing section 20(1) is invalid and 20(3) comes into play, we are going to need an extension of time and leave from the Court to bring an application for special leave.

HER HONOUR:   Mr Prince, I think I understand all of that but can I just take up with you how the grant of special leave might be made on an application for an order to show cause?

MR PRINCE:   I understand the difficulty, your Honour.  That is why paragraph 6 is in the amended application in the alternative.  Perhaps 5 should not be there but in such an ‑ ‑ ‑

HER HONOUR:   Well, it is very hard to see that 5 could stay, is it not?  In the event the matter were remitted to the Federal Court and you were successful on the section 20 argument, if you were then to apply for special leave to appeal you would seek an extension and that would be considered on its merits.  I am just somewhat at a loss to understand ‑ ‑ ‑

MR PRINCE:   Yes, I understand, yes.

HER HONOUR:   ‑ ‑ ‑ this procedurally unusual course.

MR PRINCE:   Well, in that sense we have a matter before the Court and if we are going to seek at some point leave to file an application for special leave out of time, in a sense that is really the sort of thing that would be achieved by a motion and then the special leave application would be filed, although often it is done at the same time in the body of a special leave application when that is the only matter before the Court. 

But here we have a matter before the Court, so we wanted to make sure that everybody was on notice that, if we were successful in the argument on section 20(1), that we would move the Court for an order granting leave to file the application for an extension of time because there is some doubt about whether or not, in my submission, at this stage we can file an application for special leave.  But as to the precise form that is used or the manner in which that is done, I am not wedded to any particular procedure, your Honour.  It is just an attempt to get all the matters which are in issue before the Court.

HER HONOUR:   All right, yes.

MR PRINCE:   It may not be necessary in any event, because if a jurisdictional – if judicial review grounds are remitted to the Federal Court and the applicant is successful on those grounds none of these issues arise.

HER HONOUR:   Indeed.

MR PRINCE:   Thank you, your Honour.

HER HONOUR:   Yes.  Mr Markus.

MR MARKUS:   Thank you, your Honour.  Your Honour, we have in our outline of submissions set out why we say paragraphs 5 and 6 of the relief claim ought to be dismissed.

HER HONOUR:   Yes.

MR MARKUS:   We also say something similar about paragraph 2 which is simply unnecessary.  I do not wish to take your Honour’s time up with addressing those matters further and, depending on whether your Honour is minded to give me some time to explain why we say that the whole of the proceedings should be dismissed or whether your Honour is minded to remit it, I am content to keep my peace, as it were, if your Honour is disposed to remit the matter.  We do say that the grounds, that is, the grounds that are being relied on, grounds 1 to 4, are misconceived ‑ ‑ ‑

HER HONOUR:   Yes.

MR MARKUS:   ‑ ‑ ‑ and fairly apparently so, and we also say that in particular the constitutional issue is unarguable and his Honour Justice Hayne has already said so, but otherwise we are in your Honour’s hands.

HER HONOUR:   Yes, thank you, Mr Markus.  I might just take something up with Mr Prince.  Mr Prince, the section 20 argument, that really turns, does it not, although perhaps not very clearly stated as things stand, on the circumstance that in relation to an extension application under 477(1) – just bear with me a moment.

MR PRINCE:   Yes, 477(2) I think, your Honour.

HER HONOUR:   Yes.

MR PRINCE:   Yes, the point is that it is distinguishable from Bryant because it is a different situation.  It not only precludes direct appeals to this Court, but it precludes indirect appeals to this Court.

HER HONOUR:   Yes.

MR PRINCE:   So we say, your Honour, Bryant is distinguishable.  I accept that relief claim number 2 is a duplication of number 1, your Honour.

HER HONOUR:   Yes.  Well, now, Mr Prince, I am minded to remit the substantive relief that you claim which, as I see it, is the relief claimed in paragraphs 1, 3 and 4, and 7 to 9 consequentially.  Do you press 5 and 6?  To the extent that you indicate your desire is to put your opponent on notice that were you to succeed in the Federal Court on the constitutional argument you would then seek an extension of time in which to bring an application I suppose one might think that your opponent is fairly on notice now.

MR PRINCE:   That is true, your Honour.  If your Honour wanted to – I would not want those paragraphs to be struck on the basis that there is no prospect that that might be a legitimate – particularly 6 – might not be a legitimate basis on which to move the Court at some point in time.  This is such a preliminary stage.  But if it is just a question of it not being appropriate to be in an application to show cause and that there being a better form in which to deal with it, I am content for it to be removed on that basis.

HER HONOUR:   That is entirely the basis on which, as I see it, Mr Prince, this matter has been debated.

MR PRINCE:   Thank you, your Honour.

HER HONOUR:   Namely, that in an application to show cause there is no basis to move for an order granting leave to file an application for special leave. 

MR PRINCE:   Thank you, your Honour.

HER HONOUR:   Mr Markus, you understand my – subject to anything you want to put to me my inclination is to remit the substantive relief that is claimed.  I appreciate the matters that you put in your written submissions, Mr Markus, but a possible point of distinction from Bryant is the matter that Mr Prince urges and, to the extent that in paragraph 4 the point that is being taken is in relation to a decision under 477 and the circumstance that there then is no avenue of appeal, including indirectly.

MR MARKUS:   I understand, your Honour.

HER HONOUR:   I do not comment on the merit of the argument but it just does.

MR MARKUS:   No, I understand that.  Can I make one point though, your Honour.

HER HONOUR:   Indeed, Mr Markus.

MR MARKUS:   Your Honour, in relation to that particular issue, your Honour would have been given a copy of the judgment of the High Court in Cockle v Isaksen.

HER HONOUR:   Yes, yes.  

MR MARKUS:   Your Honour, the principal point we are making in relation to this exclusion is that it is a very limited exclusion ‑ ‑ ‑

HER HONOUR:   Yes.

MR MARKUS:   ‑ ‑ ‑ and fits well within the terms of Cockle v Isaksen and, your Honour, we also make the point that the plaintiff, putting to one side the availability of an appeal, is not left without remedy as this very proceeding demonstrates because the plaintiff could and did, in fact, challenge the judgment of the Federal Circuit Court and, your Honour, that is not entirely irrelevant to the construction that needs to be given to the relevant provisions.

Finally, your Honour, if I could just say this?  We have indicated in our written outline that paragraph 6 of the relief claimed is, in our view, entirely misconceived because we say that either the plaintiff is entitled to file a special leave application or he is not.  Your Honour, I am only saying that because my friend referred to paragraph 6 in particular and we say that that belief is misconceived in any event. 

Finally, your Honour, can I just make the following point?  If your Honour remits the matter and the substantive issues sought to be raised at paragraphs 1 and 3 do not succeed it is difficult to see how and why a special leave application would have any prospects unless there has already been a challenge to those very – or the determination of those very grounds and, if there is a challenge, then that may get up here on a special leave application if that is what is being sought to be pursued ultimately.

HER HONOUR:   Yes.

MR MARKUS:   But, your Honour, those are my submissions.  Just one final point, your Honour.  We have sought 50 per cent of the costs of today in our written submissions and in respect to that, your Honour, can I just add that the orders that have been sought in the summons have been expressed in a way that were uncertain, your Honour, in any event, and we say that those orders could not have been made because it would have been unclear exactly what is being remitted to the Federal Court of Australia.  Thank you, your Honour.

HER HONOUR:   Yes, thank you, Mr Markus.  Yes, Mr Prince.

MR PRINCE:   I am sorry, your Honour, I think I have to respond to a couple of the points made just then.

HER HONOUR:   Yes.

MR PRINCE:   Firstly, I am not sure if my friend is suggesting that your Honour should not adopt the course that your Honour indicated of remitting the matter but, to the extent that he is, I submit that he has not raised anything that would change the position.  Secondly, the point about what may or may or may not happen with all the possible permutations of the Federal Court’s consideration of an application for judicial review as opposed to the exercise of the appellate jurisdiction is not something that can be determined now. 

In any event, in my submission, it really masks the fact that judicial review and appeal are two fundamentally different exercises and they are sought here in the alternative.  Obviously there is no need to resolve the constitutional issue about section 20 and in the normal principles one would not if the judicial review could be dealt with.

As to the costs, your Honour, the costs should be costs in the cause, the usual order.  This directions hearing would have been necessary in any event.  The plaintiff has been substantially successful in having – would be substantially successful in having the matter remitted if your Honour made that order, and would have the substance of his case heard and determined

as he sought to be done.  The items in 5 and 6 were not without utility because clearly the respondent now is on notice and cannot have been put to any trouble by dealing with that.  Finally - sorry, your Honour.

HER HONOUR:   I was just going to say, Mr Prince, I do not think it advances anything to rely on paragraphs 5 or 6, but do go on, yes.

MR PRINCE:   Thank you, your Honour.  Finally, there was resistance by the respondent to a remittal per se in an application to strike out.  In my submission, that would fail, and so there is no basis for the Minister seeking a special costs order in my submission.

HER HONOUR:   Yes, thank you, Mr Prince.  Mr Markus, I am conscious of the matters that you have raised respecting the decision of this Court in Cockle v Isaksen.  I express no view about the relief claimed in paragraph 4 naturally.  Nonetheless, it does seem to me that the appropriate course is to remit the matter including the relief claimed in paragraph 4.  Do you wish me to give any reasons?

MR MARKUS:   No, your Honour.  The only additional thing I would want to say is that, of course, if paragraphs 5 and 6 were not sought, then this matter could and should have been commenced in the Federal Court of Australia and, therefore, this appearance would have been unnecessary, your Honour.  That is all I am saying in relation to costs.

HER HONOUR:   Yes.  I hear what you say, Mr Markus.  Nonetheless my inclination is, as I have indicated, to remit the substantive relief that is claimed and to direct that costs be costs in the cause.  Unless there is something further you want to put?  All right.

MR MARKUS:   Thank you.

MR PRINCE:   If the Court pleases.

HER HONOUR:   The orders that I make are:

1.That part of the proceeding that claims relief in the terms of paragraphs 1, 3, 4, 7 and 9 be remitted to the Federal Court of Australia New South Wales District Registry, pursuant to section 44 of the Judiciary Act 1903 (Cth).

2.The balance of the proceeding be dismissed.

3.The remitted matter to proceed in the Federal Court of Australia as if steps taken in this Court had been taken in the Federal Court of Australia.

4.The Deputy Registrar of this Court to forward to the proper officer of the Federal Court of Australia photocopies of all documents filed in this Court.

5.The costs of the application in this Court to be costs in the cause.

MR PRINCE:   If the Court pleases.

MR MARKUS:   If the Court pleases.

HER HONOUR:   Yes.  The Court will adjourn.

AT 10.30 AM THE MATTER WAS ADJOURNED