Vella v Minister for Immigration and Border Protection
[2015] HCATrans 263
[2015] HCATrans 263
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S91 of 2015
B e t w e e n -
ALESSIO EMANUEL VELLA
Applicant
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
Application for special leave to appeal
FRENCH CJ
BELL J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 16 OCTOBER 2015, AT 10.34 AM
Copyright in the High Court of Australia
MR S.B. LLOYD, SC: May it please the Court, I appear with MR D.P. HUME for the applicant. (instructed by ACA Lawyers)
MR S.P. DONAGHUE, QC: May it please the Court, I appear with MS A.M. MITCHELMORE for the respondent. (instructed by Australian Government Solicitor)
FRENCH CJ: Yes, Mr Lloyd.
MR LLOYD: This application involves the construction of section 503A of the Migration Act and the appropriate role played by the principle of legality in the construction process. We will briefly identify the construction issue and say one or two things about the nature of procedural fairness. We will identify where the court below erred and will respond to the contention that our construction is absurd.
The relevant legislation can be found in the application book at page 35. Subsection (1) creates the prohibitions directed to officers and authorised officers, terms that do not extend to the Minister. The prohibition is against divulging or communicating information to persons other than officers or the Minister. Subsection (2) also establishes another prohibition in paragraph (d), precluding officers from giving the same information in evidence before certain bodies and persons.
Further, subsection (2)(c), we say, is in a different form and it creates an immunity. It must not give the information but “must not be required to divulge or communicate the information” to one of the bodies or persons there specified. We say that to construe that provision as an immunity follows naturally from its language and is also consistent with how cognate language was construed in this Court in the Canadian Pacific Tobacco Case, which is referred to in our summary of argument. In terms, we say that that paragraph does not prohibit the Minister or officers from divulging such information. The officers, however, are effectively prohibited ‑ ‑ ‑
FRENCH CJ: The question is whether it affects, I suppose, the content of procedural fairness in relation to a decision whether to revoke a cancellation.
MR LLOYD: Yes. What we say is that there has been ‑ ‑ ‑
FRENCH CJ: There may be a question there as to whether one is really concerned with the direct construction of the terms of the provision or its consequence for the consideration of the content of procedural fairness in the revocation context. There may be slightly different questions, might there not?
MR LLOYD: I think I would accept that, but what we say is that the notion it must not be required, there are two possible ways of construing that – is that it is limited to, as it were, compulsory powers of a kind ‑ ‑ ‑
FRENCH CJ: I understand you say that the requirement issue does not characterise the existence of a requirement - disclosure as part of the content of procedural fairness as a condition of the power to revoke a cancellation and that the word “require” is not apposite to the application of the condition because there is no coercive force on that condition.
MR LLOYD: Indeed. But we say it is, at least, open to that. There are two different views. It could fall within it, and my friends, in paragraph 17 of their summary, say the question is could it fall within, could the word “requirement” extend to that? That is also the question asked by the court below at paragraph 59 and paragraph 62. We say that that is the wrong question because if it is accepted that it both could, it may and it may not – there are two possible ways of construing it – we would say the principle of legality would suggest that the construction that had the least impact on procedural fairness obligation is the one that would be preferred, not the one that had the most. It is the wrong question to ask. Could it extend to exclude procedural fairness? The question is does it necessarily have to extend that far and if it does not, then it should not be so construed, we say.
BELL J: In that connection, how is it that you deal with the absurdity point? I think you were just at the point of explaining that in relation to the delegate you accept that the information is not to be communicated. You draw the distinction, respecting the power of the Minister. It does, on the face of it, produce a somewhat odd result.
MR LLOYD: Yes. If I leap to the end of what we say, which is in relation to the absurdity point we say that all of the provisions need to be looked at together and the circumstances of this case are a useful context in doing it. My client was cancelled under section 501, under a power that the Minister alone can exercise, so this provision, not like ‑ 503 is not the only provision where the Minister has separate powers to others. He is the only one who has the power to make decisions in the national interest, to deny my client procedural fairness at the cancellation stage – and we accept that, that he does have that power under section 501(3).
My client was cancelled on the basis of section 501(6)(b), which is incorrectly set out at paragraph 33 but correctly set out on page 81 of the application book, which allows for cancellation where:
the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct -
My client is only told – (6)(b) – he is not told whether he has associated with an individual or with a group or with an organisation. He is not told the nature of the association. Is it that he is sympathetic with criminal conduct or he just happens to be in the same group?
BELL J: I think I understand all these things, Mr Lloyd. The matter I am coming back to is, on the face of it, the notion that in instances in which the Minister delegates the power in those cases in which that is an available option there is no requirement to disclose but one would, by application of the principle of legality, find when the Minister exercises the decision it is, on the face of it, discordant. Your answer to that is that there are some functions which repose the power in the Minister alone and this is one?
MR LLOYD: That is so. What I was going to say is that in the context of a vague power where the evidence that supports the power of the Minister is unable to ever be brought before a court and then reviewed in a normal way, the revocation power under section 501C which, again, only arises in the circumstances where the Minister personally makes a decision, should be given a meaningful function and, on our construction, where 503(2)(c) leaves the Minister with a discretion to disclose the information which is a discretion relevant to the compliance with natural justice it is not absurd because that deals with the special case of the Minister exercising an extraordinary power. It makes sense. I think, impliedly, I have taken the Court already to what I wanted to say about natural justice. The Court has already picked up on what ‑ ‑ ‑
FRENCH CJ: Your proposition is the Minister cannot validly exercise his power – could not validly exercise his power to revoke a cancellation without disclosure to the person affected of adverse material relevant to that decision, notwithstanding that it falls within the category of gazetted agency information.
MR LLOYD: He could validly do it if he disregarded that material.
FRENCH CJ: Yes, but he is going to take it into account.
MR LLOYD: Yes. So he can choose to take it into account and in a similar way if the Minister does not personally make the decision ‑ so it is a 501(2) decision made by a delegate – that delegate cannot disclose a point relied upon by my friends. But my client then would have a right of appeal to the Tribunal and the delegate also does not disclose it to the Tribunal unless the Minister has made an exercise of power under 503A(3). So, once again, the Minister is drawn back into the question of the extent to which disclosure is appropriate. So it works, I accept, slightly differently in those circumstances.
BELL J: But in that latter circumstance where there is the right of appeal, is your submission – I just do not think I have grasped it – that the Minister at that point makes a relevant determination that would effectively require that the Minister then disclose the information?
MR LLOYD: No. I do not say that necessarily under 503A(3A) that the Minister would have to do that but the Minister would, at least, have to consider once again the issues. In both cases ‑ ‑ ‑
BELL J: Accepting that, but just coming back to dealing with the absurdity argument, it really comes down to this, does it not? In relation to those determinations which the Act requires the Minister to make personally there is no such argument available? Nonetheless, you have to face the fact that this is within a statutory context where you accept that for some purposes it would produce an improbable result.
MR LLOYD: Our construction would produce a result whereby if a delegate made the cancellation decision he would not have to disclose it. There is then no revocation issue in relation to that. So that whole matter does not arise. The Tribunal then is not automatically given the information but could be given the information in circumstances where my client would not see it.
BELL J: Yes, I understand the point you are making.
MR LLOYD: In terms of the error I have, in a sense, taken the Tribunal – I have referred anyway to page 46 and paragraphs 59, 61 and 62 where we say the principle of legality was not properly applied. The other area where we say that there is an error can be seen at the end of paragraph 70 where it says:
Whilst the Minister may permit disclosure by making a declaration under s 503A(3), he may only do so after consulting the gazetted agency.
That read alone might be acceptable, but I then move on to paragraph 74. The second sentence is the sentence that my friends rely upon:
Unlike an authorised migration officer, the Minister is not prohibited by s 503A(2)(c) from giving the information in evidence –
which is really actually the effect of 503A(2)(d) rather than (2)(c). Importantly, at the end of paragraph 74:
Plainly the statutory scheme envisages disclosure only in the tightly defined circumstances provided in s 503A(3).
We say that the statutory scheme could have said that but did not say that. In fact, the Minister is given a liberty or freedom under 503A(2)(c) to disclose to anyone he or she wishes to disclose to, not only in the tightly defined circumstances provided in 503A(3). That is reinforcing the last sentence of that paragraph:
It is impossible to infer that, in putting into place the detailed and structured scheme, the legislature intended or envisaged that the Minister could or would simply ignore the protection afforded to him, other than pursuant to s 503A(3).
That, in effect, says that 503A(3) is the only way the Minister can lawfully disclose information. That power, turning back to page 35, is a power only to give it to a court, to a specified tribunal. On the view of the court below, the only power to disclose is a power to disclose to a specified court or a specified tribunal. We say that that is too narrow. It is not what the legislature has chosen in its exact words, that the role of the principle of legality not only has a role to play in determining the question of requirement but it has a further role to play in determining the extent to which – we accept that natural justice to some extent is affected by these provisions, but it requires plain intendment for the totality of the effect. We say that Parliament chose language which is not as broad as the court below said. They have, in effect, read it up to be a complete ban on the Minister, subject to 503A(3) and we say that is wrong.
FRENCH CJ: What is the point of 503A(3) if the Minister has a discretion to disclose, anyway?
MR LLOYD: The Minister can disclose it when the Minister personally has it, so, for example, if he is making an exercise of power. But under 503A(3) the Minister can lift the bar on officers in circumstances where the Minister never has the information himself in order to disclose it himself. So in a case, for example, where a delegate makes a decision under 501(2) the Minister can make a decision under 503A(3) to raise the bar so that the delegate can give it to the Tribunal. That deals with that kind of case, but it does not deal with a case of the Minister personally having the information and being able to disclose it himself or herself under paragraph (c) of subsection (2).
FRENCH CJ: In subsection (3) it says:
The Minister may, by writing, declare that subsection . . . (2) does not prevent the disclosure ‑
Subsection (2) is applicable of course to the Minister, although you say simply in a non‑coercive way?
MR LLOYD: Yes.
FRENCH CJ: You are taking the section 16 construction of the Income Tax Assessment Act?
MR LLOYD: Yes, exactly.
BELL J: In this instance, where the delegate is barred from disclosure - there is an appeal, the Minister may, for the purposes of that proceeding under subsection (3) declare in writing that subsection (1) does not prevent disclosure of the specified information but only after the Minister has consulted with the gazetted agency. When the Minister is exercising the power personally, there is no such requirement that he consult with the gazetted agency.
MR LLOYD: That is so.
BELL J: Is there some reason that asks for that distinction?
MR LLOYD: One reason would be because the Minister would personally, if he is exercising the power himself, have seen the information himself, whereas under the 503A(3) situation it could be simply a matter of saying, “Minister, we have relied upon information from the federal police; we want to be able to give it to the Tribunal,” and the Minister has said, “Okay, give it to the Tribunal”, but has not turned his own mind to the content of the information. That is different to a case where the Minister has personally looked at the information, relied upon the information in making the cancellation decision, knows how weighty or otherwise it is and can balance all the factors in the Minister’s own mind.
BELL J: The requirement under subsection (3) for the Minister to consult with the gazetted agency you say that would be met by the Minister referring the delegate’s request to the agency but not in fact giving personal consideration to the material and that is the explanation for the distinction. Is that right?
MR LLOYD: That is certainly an explanation for why it could be done. The Minister would not personally have to ‑ ‑ ‑
BELL J: The requirement to consult with the gazetted agency is, presumably, to give the agency the opportunity to comment on the
consequences of disclosure. It is difficult to see why that would not apply in each instance.
MR LLOYD: I am not saying that the Minister under (2)(c) could not consult with the gazetted agency and the Minister might want to do that in every case. It is just that he is not bound to do it.
BELL J: He is not required to, whereas he is under subsection (3).
MR LLOYD: That is as high as we take it. I think that is all I need to say. That is why we say there was error in the court below and we seek a grant of special leave.
FRENCH CJ: Thank you, Mr Lloyd. Yes, Mr Donaghue.
MR DONAGHUE: Your Honours, the single issue raised in this application concerns the construction of 503A of the Migration Act. An appeal on that point would, in our submission, lack any public importance beyond its immediate ramifications for that particular section and its operation in the Act because, for reasons I will develop, there is nowhere else in the Commonwealth statute book an equivalent provision of that kind.
In addition, your Honours, in our submission, the appeal lacks sufficient prospects of success to warrant a grant of special leave. We say that because this section and this point has been examined by the Full Court of the Federal Court squarely on two prior occasions and, incidentally, on a further occasion, and on each occasion the court has unanimously rejected the argument that the applicant seeks to advance now.
FRENCH CJ: What does that mean?
MR DONAGHUE: Your Honour, it means that the provision enacted in 1998, ruled on by the Full Court in 2003, has operated for a long time with no dissent about what it means. If there was a genuine point of doubt about the construction ‑ ‑ ‑
FRENCH CJ: This is the correctness by inertia.
MR DONAGUE: Yes, it is the correctness by clearly explained reasoning, which has not attracted criticism until now, your Honour. Obviously, the fact that the point has been repeatedly ruled on and never found good before does not in itself mean that your Honours might not choose to look at it. But we submit that in assessing the prospects of the argument’s success ‑ ‑ ‑
FRENCH CJ: I suppose the question is whether importance resides in the fact that a decision can be made or it is said that a decision can be made based upon adverse information which is not able to be disclosed to the person affected by that decision. I know there are statutory schemes of various kinds under which that can be done but the question is, is it a matter of such importance, notwithstanding that it resides in this particular statutory scheme, that we ought to look at it if there is any doubt about it?
MR DONAGHUE: To that we would say that the proposition your Honour puts to me is a way of saying does the Act express a clear intention to exclude the rules of procedural fairness because if it does express a clear intention to do that the consequence is the consequence your Honour puts to me that the decision‑maker can make an information on material of that kind. We submit that the principles that the court would apply in determining whether an Act has excluded the obligations of procedural fairness have been clear, at least since Annetts v McCann.The Full Court in this case applied those principles, so we accept that the regime needs to be clear and needs to be very clear. We just submit that it is.
In that context, your Honour Justice Bell put one absurdity to my friend. We submit that there are really two absurd consequences that would arise out of the conclusion that the Minister cannot rely on information without disclosing it. One is the absurdity that your Honour put to my friend. It is perhaps best illustrated by reference to section 501(2), which your Honours will see on page 32 of the application book.
That is the cancellation power that is available either to the Minister or to a delegate. It can be exercised ‑ exactly the same power by either decision‑maker. In the context of that power the construction that our friends urge is that on exactly the same facts and exactly the same statutory power there is an obligation to disclose on the Minister and no obligation to disclose on the delegate.
BELL J: As I understand the answer to that, it is in the event that the delegate makes the decision, the matter is susceptible of review and at that point the Minister would be required, at least, to consider whether information might be made available to the Tribunal.
MR DONAGHUE: In my submission, the Minister cannot be required to consider that because 503A(3A) expressly says the Minister is not under any obligation to consider the exercise of that power. So the Act negates that implied obligation. But also, in our submission, it is very difficult to see – and this was influential in the reasoning in Ball in the Full Federal Court – why the scheme would encourage devolution of the Minister’s decision‑making function down in order to obtain protection.
That is one absurdity, but the other arises ‑ your Honours, if you look at 503A(1) you will see that this is a regime that, in our submission, limits procedural fairness in relation to only a set of specified statutory powers. You have 501, which includes both subsection (2), which I just mentioned, “Minister or delegate”, but also subsection (3), the Minister alone.
Then you see some other powers, including 501C, the provision in issue here, a power that can only be exercised by the Minister personally. The regime is contemplating that information that is governed by this section might be information that relates to a power that can only be exercised by the Minister.
One then gets to the situation where, if our friends are right, the Minister makes a decision under 501(3), as occurred here, with no obligation to accord procedural fairness. The price of that decision is that there is an opportunity to seek revocation of it under 501C but, at that point, our friends say well, your options are – really, the Minister’s only option is to disclose the information because you have to exercise the power and you cannot exercise it validly without disclosure. So while 503A expressly contemplates that the information might be directed to a decision under that section, it cannot have any sensible operation in that context. That is why we say that the construction cannot be correct – or one of the reasons.
Your Honours, our friends have relied particularly heavily, in writing, on the Canadian Pacific decision as the analogy with section 16 of the Income Tax Assessment Act. Your Honours will no doubt recall that the issue in that case was ‑ ‑ ‑
FRENCH CJ: Admissibility.
MR DONAGHUE: Exactly, your Honour. In our submission, it has nothing to do with an obligation to disclose as a matter of procedural fairness. It was just about whether an affidavit voluntarily given was admissible in evidence. There is, in our submission, no tension between what the Full Court decided here in Canadian Pacific - and your Honours see that from paragraph 74 of the reasons on page 50, which is a paragraph that Mr Lloyd took your Honours to. He noted that we rely on the second sentence, which we do:
Unlike an authorised migration officer, the Minister is not prohibited by s 503A(2)(c) –
that is, by the specific paragraph that we are talking about –
from giving the information in evidence. He is only protected from being required to divulge it.
That is the Canadian Pacific construction of the relevant words. There is no difference between the construction of those words. What the Full Court does in the balance of the paragraph is construe the scheme as a whole. You find repeated references, not to (2)(c) in the same language but to the statutory scheme, the consultation provisions, the absence of an obligation to consult and then if you do decide to disclose on conditions, conditions flowing through to recipients of the information. In the context of that scheme, which has no analogy in section 16 of the Tax Act, the court says, as a matter of construction, the Minister can only disclose consistently with the scheme.
Now, whether that is right or wrong, it does not generate inconsistency with Canadian Pacific and it does not really bear on the critical issue in this case, which is whether an implied obligation, statutory obligation to afford procedural fairness is a requirement that engages two ‑ ‑ ‑
FRENCH CJ: Well, you put it on the basis that it is not so much a question that the provision by implication displaces the requirement for procedural fairness because that requirement would be inconsistent with the provision?
MR DONAGHUE: We do say that, your Honour, yes.
FRENCH CJ: At least with the scheme of the ‑ ‑ ‑
MR DONAGHUE: One can come at it, as your Honour put to my friend, in a couple of different ways. One way of coming at it is that one determines the content of procedural fairness in the context of the scheme as a whole and, looking at that, there is no obligation. A different way of analysing it would be to say that, at least on the more recent authorities in this Court, an obligation to give procedural fairness is an implied condition arising from the statute. We submit that whether a requirement ‑ ‑ ‑
FRENCH CJ: Sometimes it is six of one and half a dozen of the other.
MR DONAGHUE: Indeed.
FRENCH CJ: Is the common law dropping on the statute or the common law informing the statute?
MR DONAGHUE: Exactly, your Honour. That is why I qualified what I said, but I discerned a theme recently perhaps of locating the obligation of the statute. But either way, your Honours, if you look at section 503A(6) and (8) Parliament has made it clear that this obligation is to prevail both over other provisions of the Act, which would deal with the situation if it is an implied statutory obligation or, over in subsection (6)(b):
any law (whether written or unwritten) of a State or a Territory.
So if the obligation is coming upwards from the common law it is dealt with under (6)(b). If it is coming by implication out of the statute it is dealt with under (6)(a), but either way it gives way to the express requirements of 503A. That of course is not a global exclusion of procedural fairness in relation to decisions under 501C. Procedural fairness continues to apply except with respect to protected information under the section. So, insofar as there is other material, it must be disclosed.
In that regard I would just note to you, your Honours, that Mr Lloyd made a submission about the absence of the applicant’s knowledge about what was happening to him. Your Honours will see on page 11 of the application book that there is a document headed “Relevant (Disclosable) Information” that was given to the applicant, which makes it quite clear that his visa was cancelled because he was the president of the Rebels and because of a high level, a summary of the activities in which the Rebels were sought to have been engaged. So it is not the case that he had no idea as to what association had triggered the engagement of these powers.
Your Honours, the final point I should make concerns the submission our friends make at the end of their outline, particularly at footnote 14. This is found on ‑ ‑ ‑
BELL J: Application book 68.
MR DONAGHUE: That is right, your Honour, thank you. There are a list of provisions there that are said to be analogous and the submission appears to be that, if your Honours take on this case, it will have ramifications that go beyond the case because of all of these other provisions. It is true that those provisions do use the words “must not be required to divulge or communicate” but, nevertheless, in our submission, there are two main reasons that the provisions are not comparable.
First, in every one of those provisions listed in footnote 14 the words “must not be required to divulge or communicate” are followed by the words “to a court” and nothing else. So there is no equivalent to the list one has in 503A “to a court, tribunal or other person or body”. In addition to that distinction, in each case the prohibition is immediately followed by a further prohibition that says “must not be required to produce in a court a document”.
So in the context of those provisions, one is obviously looking at a provision directed to courts as distinct from everybody else and the powers that courts might have to require the disclosure of information. By contrast, in the scheme of 503A the Full Court was right to recognise that grammatically – and it did this in paragraph 65 – the focus is on the requirement to divulge information to people, not on a requirement imposed by any of the people who follow. So, in our submission, the scheme of 503A is relevantly different.
The other key distinction is that in all of those provisions, save the last two, there is an express exception to the secrecy provision which applies where information is required or permitted by an Act to be divulged, which would throw up as an exception the very issue that your Honours would now be considering in relation to whether a procedural fairness obligation required disclosure.
In our submission, 503A is a relevantly unique regime. The result that was reached by the Full Court depended on construing that regime as a whole and it did not adopt an interpretation that differed in any respect from this Court’s interpretation of the key words in Canadian Pacific. If the Court pleases.
FRENCH CJ: Thank you. Yes, Mr Lloyd.
MR LLOYD: Two points in reply. This case raises an important issue about the principle of legality. This legislation has provisions, such as on page 33, 501(5), so when natural justice is to be completely excluded it is done so expressly. It has other provisions like 503A where it is accepted, I think, on both sides of the Bar table that it has some impact on procedural fairness.
We say, however, the principle of legality has an ongoing role to affect procedural fairness in the same way as, say, the presumption against retrospectivity. Even if there is a clear intention to overcome the presumption against retrospectivity that presumption would still continue to apply to the extent to which a provision is retrospective. We say the principle of legality also applies in relation to procedural fairness in that regard.
The other point is the Court was directed to page 11 in response to my suggestion that my client did not know how to respond. My client had seven days to respond and yes, the first half of page 11 talks generally about outlaw motorcycle gangs. It refers to my client being the national president of a gang or club, so characterised. But it does not say because of his association with a member of it or with particular members or with a group or with the organisation as a whole.
FRENCH CJ: Notwithstanding Mr Donaghue put this, this really does not go to the construction point. It is just an incident of this particular case, is it not?
MR LLOYD: Only to the extent that we say that – they said the revocation power is kind of the answer to the extraordinary power. But the revocation power has to be meaningful. If, in fact, you are given seven days to respond to, I think, the fact that there have been 1,211 charges reported – not convictions but reported – we say it is not a very meaningful provision, an opportunity for revocation. So the Court should not lightly exclude procedural fairness where it is not done in direct language. Where there is direct language elsewhere in the provision it is just sought to have 503A(3) read up to exclude procedural fairness. May it please the Court.
FRENCH CJ: Thank you, Mr Lloyd.
Section 503A(2)(c) of the Migration Act provides, inter alia, that the Minister must not be required to divulge to a court or tribunal information relevant to the exercise of a power to cancel a visa under section 501 where the information has been communicated to the Minister or an authorised migration officer by a gazetted agency on condition that it be treated as confidential information.
The applicant for special leave contends that a refusal to divulge such information to a party affected by the exercise of a power to revoke or not to revoke the cancellation of a visa in reliance upon such information can constitute a failure of procedural fairness. In our opinion, the decision of the Full Court of the Federal Court to the contrary is not attended with sufficient doubt to warrant the grant of special leave. Special leave will be refused with costs.
AT 11.11 AM THE MATTER WAS CONCLUDED
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