Vella v Minister for Immigration and Border Protection & Anor

[2015] HCATrans 312

[2015] HCATrans 312

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S233 of 2015

B e t w e e n -

ALESSIO MANUEL VELLA

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY BY VIDEO LINK TO MELBOURNE

ON THURSDAY, 26 NOVEMBER 2015, AT 9.30 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please your Honour, I appear with my learned friend, MR C.L. LENEHAN, for the plaintiff.  (instructed by ACA Lawyers)

MR S.P. DONAGHUE, QC:   May it please your Honour, I appear with my learned friend, MS A.M. MITCHELMORE, for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Walker, are the parties in a position to proceed with the argument about the extension of time this morning?

MR WALKER:   Indeed, yes.

HIS HONOUR:   I will hear that argument.

MR WALKER:   Your Honour has, I think, seen the written submissions of the parties.

HIS HONOUR:   Yes.

MR WALKER:   Although, as required, they go, of course, beyond the extension of time, they do include the matters upon which we rely.  Your Honour has seen that we have addressed that as well more particularly in the written submissions in reply.

HIS HONOUR:   Yes.

MR WALKER:   In the affidavit upon which we move, that of my solicitor, Steven Lewis, of 11 November, your Honour will have seen the course of events deposed to, starting on page 5 in paragraph 21 and, in particular, the change of retainer culminating in a review of matters in paragraph 25, and then in paragraph 26, in the statement on information and belief from the plaintiff that his previous solicitors had not advised him of what is called “his right to make this Application in respect of the Cancellation Decision” and the receipt of instructions that culminated in the filing, well out of time, of the current proceedings on 8 October.

HIS HONOUR:   Yes.

MR WALKER:   In paragraph 26, the compressed expression “his right to make this Application in respect of the Cancellation Decision” we submit, as a matter of fact, ought to be understood as involving the inclusion within it of the particular grounds with respect to the revocation decision which are the gravamen of the substantive points for which an extension of time is sought. 

Your Honour, they are proceedings some 17 months after the decision in question.  They are subject to limitations which, under the Act, to the extent that the Act would apply, are very greatly out of time by reason of section 486A which has a 35‑day limit.  Alternatively, with some diffidence, we would put it as also being well and truly out of time but by a considerably lesser margin under rule 25.06 for certiorari.

HIS HONOUR:   Well, that is the least of your worries, I think.

MR WALKER:   Quite so.  Your Honour, the gist of an argument against us in relation to extension, if I may come to it directly, is that the course of deliberate making of forensic decisions and perhaps the high‑water mark of that – I do not suggest the rest is low tide, but the high‑water mark is found in the document which is numbered page 11 in the exhibits to the affidavit of Ms Watson.  Attention has been drawn to that fairly by our friends in their written submissions and item 2, you will notice – does your Honour have that?  It is the letter from Meridian Legal of 26 August 2014?

HIS HONOUR:   Yes, page 11.  Yes, I have that, thank you.

MR WALKER:   In item 2 you will see the first and second sentences expressly contemplate what I will call the possibility of impugning the decision.  That does not talk about grounds, but it talks about impugning the decision.

HIS HONOUR:   Yes.

MR WALKER:   So that, and, with respect, there is no contest possible on the proposition that whether to challenge the decision was explicitly in the minds of those advising and appearing for our client and for abundance of clarity may I make clear what ought, I hope, be clear from what is not said in our submissions or in our affidavit – we are not alleging any shortcoming on their part.

HIS HONOUR:   On the part of the lawyers, former lawyers?

MR WALKER:   That is right.

HIS HONOUR:   Yes.

MR WALKER:   That is because of matters which are thoroughly canvassed in the written submissions before your Honour about what I will call the substantive matters.  There are difficulties and obstacles which we have recognised and to which the other side has paid appropriate attention, with respect, in their written submissions.  It is not a point that leaves out, as one obvious to those in this area, as something that, as it were, was bound to be taken on behalf of the client, particularly at a point of course where, quite apart from original jurisdiction in the Federal Court there were – and what were, in fact, taken – parallel administrative courses of review.

HIS HONOUR:   Yes.  So, as I understand it, you would propose in these proceedings, if they were to get beyond the 486A question, to take two constitutional points, both of which have an element of ambition about them, and you would propose to take also an administrative law point.

MR WALKER:   Yes.

HIS HONOUR:   That is more difficult for you, is it not?

MR WALKER:   Very, very much more difficult.  They are discrete and the arguments that you have seen, that we rely upon in our written submissions for an extension, are, I think, almost entirely referable to what I will call the two constitutional questions.

HIS HONOUR:   Yes.

MR WALKER:   It is very difficult, we say, to enlist them either at all or with any great force for the administrative point.  That in turn of course invites, if we were to have any measure of success, the possibility of a disparate outcome between those two parts of the case in relation to an extension.

May I deal finally with everything else I want to say in relation to what I will call the administrative point.  If an extension were appropriate, then, in our submission, the relatively narrow compass of fact about which I will have one more comment to make is one which, in our submission, for the doing of justice in relation to the fraught position of my client, would render not inappropriate the administrative law as it were on the coat‑tails of the constitutional points, but I cannot possibly say that they do not have that character.  They do.

One other comment I want to make about the facts is this.  The deliberateness, by which I mean the full advertence and, with respect, no doubt careful thought that previous lawyers gave to steps which were taken involving by implication those not taken in the past, is referred to by our learned friends in their written submissions, I stress appropriately and fairly, but we do not read those submissions as extending to the proposition that there was any deliberate keeping of anything up a sleeve and there is absolutely nothing to suggest that utterly extraordinary – we would submit unthinkable - proposition.

HIS HONOUR:   Also somewhat of a poor tactic, in light of the statutory ‑ ‑ ‑

MR WALKER:   To the point of incredible perversity and that is why we do not, with respect, read our friends as having suggested that.  But if, of course, that had been true, then I should not be standing here at all.  So there is deliberateness, yes, but there has been, by dint of the voter‑ship coming to a degree of attention and focus, which it had not hitherto and understandably occupied, plus further and new thought on the matter, is why a point that unquestionably, if it exists at all, could have been taken earlier.  Of course it could have been.  It was not.

HIS HONOUR:   How would you distinguish this from Metwally (No 2)?

MR WALKER:   At the highest that is the most – I should not say the highest.  At an appropriately but abstract level, it is not possible to distinguish because at that level you are talking about all cases where a matter, albeit of constitutional import, has not been taken at a time when it could have been taken.  However, with respect, be it Henderson v Henderson or an abuse analysis - and we, with respect, would argue that they ultimately converge concerning the self‑protective capacity of the administration of justice - the position is not established.  We submit in this Court that there is a bar of what I might call a non‑discretionary kind.

Now, I accept that to use the word “discretionary” is in danger of encouraging a laxity, not only of thought but of practice, but it at least involves something in the nature of an evaluation of countervailing values in relation to the administration of justice. We accept that in a case like this there is, as it were, the interests of the commonwealth – spelled with a small “c” – in relation to matters of decision‑making under the Constitution that properly transcends the particular interests of my client or even what I might call the particular position from time to time of an executive.

I accept as well that viewed in one manner that is a factor which strengthens rather than attenuates the need for the observance by enforcement of time limits, clear time limits. I accept that, but, in our submission, there is also a powerful opposite argument, namely that no doubt depending upon the nature of the proposed issue under the Constitution, when a case which, it may be hypothesised in the event that the point were a good one is taken, not only is it of self‑evident public importance concerning the Constitution and, here, the relation of what I will call the people to the Executive is concerned – one of…..true – but also it is in relation to a matter, namely, the capacity to live in what we would be submitting was his home country, which is of profound significance, not only personally but socially, “exiled from one’s own country” and that is a phrase that involves multiple levels of tendentious assumption on my part, but the hypothesis is that we were correct in our argument is, in our submission, a matter which would give the Court great pause before preventing what might be a good argument from being ventilated on the merits.

If that is to say that there are some personal interests and some values in the political sense that may be seen to have more poignant or pressing weight in relation to the procedural aspects of constitutional adjudication than others then yes, we submit that is the case and, for example, there is no difficulty in principle, indeed every reason in principle why matters of personal liberty, which we would extend to being able to live in your home, may well be seen to be of more moment, say, than matters of purely financial interest. 

I accept, however, that as a matter of argument we are not here in a competition with somebody complaining about an excessive tax assessment.  We are here for the matters we wish to put.  But it is very largely for that last reason, namely the profoundly significant personal and social matter of the right of habitation or, I should say, the ability to inhabit the country which as home that we submit the very clear and very considerable exceedence of the statutory time limit should be subject to extension.  Parliament has empowered extension.  Justices of this Court have said and, with respect, in a way that we do not seek to qualify at all, that the power is to be exercised in exceptional cases.

The first ground for the exceptionality, in this case, is the distinctly striking circumstance of a person making this country his home – it being his home – he being one of the voters and yet, on a view of the law, which he seeks leave to contest, he remains, long after he could ever have sensibly been described as a migrant, an alien and subject to treatment as such.

HIS HONOUR:   When you say on a view of the law, you mean on the view expressed in Nolan and endorsed in Shaw?

MR WALKER:   Exactly so and, as I hope your Honour saw, we drew to explicit and prominent attention in our written submission.  That is, as put by our friends in their submission, what I think I called in opening this morning, an obstacle.  There is no question about that.

HIS HONOUR:   Yes.

MR WALKER:   But, in our submission, and for the reasons we have put in our written submissions, those authorities could not be regarded as authorities that took the voter qualification and attended to that in reasoning and produced a conclusion which would guide a future Bench in terms of that form of stare decisis that applies.  It cannot be seen to have produced

either consideration of the weight of that argument against remaining an alien or, for that matter, it being part of a set of circumstances, that is being a voter but not having taken statutory…..as being a combination of which rendered one still and while ever that continued, an alien.

So that of course our argument is one which seeks leave to ventilate a point for which there is no authority in the Court but we do submit that it would be drawing a long bow to say that there is a case in which it was argued and for determinative reasons decided on that point. 

There is, with respect, self‑evident importance in a settler society such as this country with continued waves of migration, including of children - it is of very considerable significance to raise the question of what I might call enduring alienage for the purpose of susceptibility to legislation with respect to aliens.  That is our case for the extension.  May it please the Court.

HIS HONOUR:   Thank you, Mr Walker.  Mr Donaghue.

MR DONAGHUE:   Your Honour, can I read the affidavit of Dale Jennifer Watson affirmed on 24 November 2015.

HIS HONOUR:   Certainly, yes.

MR DONAGHUE:   There is, as your Honour has seen from the written submissions, no real dispute as to the applicable principles on the extension of time application.  The plaintiff says in their reply that those observations made by Justice McHugh in Ex parte Marks are not rigid rules to be applied inflexibly and we, of course, accept that is true.  We do submit, however, that those observations are an accurate statement of the legal principles to be applied in extension of time applications and that when one turns to content of those principles, one finds that Justice McHugh articulates an approach that does require a level of rigidity in relation to very long delays, here some 16 times the statutory prescribed period. 

So in the observations that we quote in paragraph 7 of our written submissions Justice McHugh is expressly contemplating a situation that, aside from very exceptional cases, the time limits should be rigidly applied where the delay is longer than a year and earlier in the same passage, his Honour contemplates that is difficult to see how a person who knows of the decision to be challenged could ever be granted an extension of time when they have delayed for that period.

So while we accept that your Honour does have a discretion applying the relevant principles, if your Honour is satisfied it is a very exceptional case the approach that is very commonly applied in this Court, in our submission, is such that when faced with a delay of this length some rigidity is called for.

HIS HONOUR:   Do any of the cases to which you refer, Mr Donaghue, involve an attempt to raise a constitutional issue?

MR DONAGHUE:  Your Honour, I do not think that any of the extension of time cases to which we refer have that character.  Obviously, some of the abuse of process cases to which we have referred do and Metwally your Honour has already mentioned.

HIS HONOUR:   Yes.

MR DONAGHUE:   In our submission, as a matter of principle, on an extension of time point, the same rationale applies.  If a person knows about the decision and has an ample opportunity to consider whether they are going to challenge it on constitutional grounds or otherwise, if they choose not to do so then, save in a very exceptional case, they should not be permitted well out of time to bring the case.

Here, your Honour has by way of explanation for the delay, really heavy reliance being placed on the hearsay statement from the plaintiff to which Mr Walker has already taken you this morning, saying that he was not advised of the right to challenge the cancellation decision.  In our submission, your Honour should give very little weight to that evidence, having regard to the documentary material that we have exhibited to Ms Watson’s affidavit.  I was proposing to take your Honour very quickly through that material, if that would assist you.

HIS HONOUR:   That would assist me, thank you.

MR DONAGHUE:   So if your Honour could start with exhibit DJW‑1 to Ms Watson’s affidavit, which you will find starting at page 4 - this is the originating application as filed in the Federal Court not too long after the revocation decision was made, so that decision was made I think on 18 July and the proceeding was commenced on 12 August.  I take your Honour to it.  So if your Honour looks near the top of page 5 of the affidavit in paragraph 1 you will see that the order was sought in relation to what was described there as a:

decision of the respondent made on 13 June 2014 to refuse to revoke the cancellation -

Now, that was an error because there was no decision on 13 June to refuse revocation.  The decision made on 13 June was the cancellation decision itself.  So we have the date of the cancellation decision now sought to be challenged in this proceeding before your Honour but that decision misdescribed as a revocation decision.  That elicited correspondence from my instructor, which your Honour will see at page 8, which is DJW‑2, and there reading in paragraphs 3 to 5 – in paragraph 3 attention is drawn to the paragraph I have just shown your Honour, then Ms Watson explains in paragraph 4 that the 13 June decision was the cancellation decision, we assume you intend to challenge the 18 July decision to refuse to revoke cancellation.

Then it is pointed out in paragraph 5 that if indeed the intention is to challenge the cancellation decision then there will need to be an application for an extension of time, so that is put on the table as early as 19 August 2014.  It was that letter that elicited the response that Mr Walker fairly took your Honour to at page 11 of the affidavit where it was confirmed that at this stage the intention was to challenge the revocation decision.  There was an express reservation of rights as to the cancellation decision pending access to documents and an acceptance of a need to seek an extension of time.  So, in our submission, that letter, unless sent without the instructions, weighs very heavily against the plaintiff’s statement recorded on information and belief by his now instructor.

Then what your Honour sees on page 17 is an order granting leave in the Federal Court to correct the identified decision from the 13 June date to the 18 July date, so that the position was – or leave was granted to regularise the position so as to remove any reference in that application to the cancellation decision and to confirm its application only to the revocation decision. 

We submit that logically a challenge to a revocation decision must assume the validity of the cancellation decision proper because otherwise there is no sensible subject matter to form the focus of the revocation application.  So I should have noted it when your Honour was looking at the application, but if you just turn back to page 5 you will see that part of the relief sought in the Federal Court, paragraph 2, was mandamus directing “the respondent to determine the decision about revocation”. 

So, the court was being asked in the exercise of the judicial power of the Commonwealth to require the Minister to make a decision again which cannot possibly have been validly made if the point that our friends now seek to raise in this Court was right and that there was never a cancellation decision capable of being revoked.  So, in that sense there is an evident inconsistency, in our submission, between the case as run previously in the Federal Court and then unsuccessfully on an application for special leave to this Court and the case that is now sought to be advanced.

The other point, your Honour, that I should make while you are with the exhibits to Ms Watson’s affidavit is that there is a distinction to be drawn between the two constitutional points our friend is seeking to raise in this Court now.  There is the aliens voter point as one point, and the other point is the 503A point.

HIS HONOUR:   Which is a Chapter III point, as I understand it.

MR DONAGHUE:   A Chapter III point connected with, yes, access to information and capacity to exercise supervisory jurisdiction.

HIS HONOUR:   Yes.

MR DONAGHUE:   It may well be the case, as Mr Walker puts this morning, that the aliens or voter point is a novel point that just had not occurred to anyone and was obscure enough so that that point can be made without criticism of anyone.  The same is not true in relation to the Chapter III point, which was evidently in the minds of those acting for Mr Vella in the course of the previous proceedings, so much so that you see exhibited to Ms Watson’s affidavit at page 19 the 78B notice that was issued in that proceeding identifying a Chapter III challenge in respect of section 503A.

HIS HONOUR:   I am sorry, what page is that?

MR DONAGHUE:   Page 19.

HIS HONOUR:   I see.  What happened to that point?

MR DONAGHUE:   So what happened was the point was raised, then if your Honour flicks on to page 28 and following you will see the submissions that were filed on Mr Vella’s behalf supporting the point.  These submissions, as the heading indicates, were submissions advanced in support of an application to subpoena all of the material upon which the Minister relied in making the revocation decision, which included a body of section 503A protected information ‑ or included, to be precise, what the Minister submitted was a body of material protected by 503A.

The subpoena having been issued, the Minister objected on the basis of 503A and there was a hearing before Justice Wigney to determine that issue in which these submissions were advanced.  The Minister’s submission before Justice Wigney was to the effect – and your Honour has the transcript of this hearing exhibited to Ms Watson’s affidavit – but the Minister’s position was that the evidence that the Minister had filed was sufficient to prove that the information in question was 503A protected information but Justice Wigney could decide whether the Minister had successfully advanced the necessary evidence to prove the engagement of those preconditions and that if his Honour was satisfied on the evidence that we had filed then that was the end of the matter, that was the Minister’s position.

What happened in oral argument – and your Honour sees this in the affidavit at page 56 – was that Mr Williams, who at that stage was acting for the plaintiff, identified really from line 16 on page 17 of the transcript through to halfway down page 18 how the constitutional argument was put and summarising what the position was.  In effect, what Mr Williams put to his Honour was that if the court found that it needed to look at the documents that were said to be protected information in order to decide whether or not they were protected information then that would engage a constitutional question because the Act purports to stop the court from doing that.

But it was only in the event that his Honour reached the point where he needed to inspect that the constitutional issue would have arisen, and your Honour will see over the page at page 58, page 19 of the transcript, reading from – and this is in my submissions to his Honour from line 25 – we said:

As my friend puts it, the constitutional issue bites at the stage where the court thinks that it should order that the original material be produced to it so that your Honour can satisfy yourself about the preconditions.  But we submit that, in order to get to that point, your Honour would first need to decide that you think you do need to inspect the original documents in order to answer the question that is tendered by our objection to producing under the subpoena –

and then his Honour says –

I think Mr Williams agreed with that point –

and I said –

I think he did too.

What ultimately happened was that Justice Wigney found in the Minister’s favour without needing to inspect the documents and so Mr Williams had accepted that the constitutional issue fell away.  Now, whether or not that point is exactly the same as the point our friends now seek to raise it is, we submit, clear from the extensive submissions filed and the 78B notice that the question of a constitutional challenge on Chapter III grounds to 503A was squarely in play at that stage in the proceeding; it fell away and, in our submission, our friends are bound by the conduct of their case.  They should not now be permitted to rerun that point in a separate proceeding.

So those are the points, your Honour, that I would seek to make from Ms Watson’s affidavit.  In effect, our submission is, your Honour, that having regard to the delay, the absence of any real explanation for the delay and – well, the delay and the absence of real explanation for it in circumstances where litigation was being conducted in respect of a closely related decision throughout the period of delay, your Honour could properly refuse an extension of time finding that this is not a very exceptional case without needing to concern yourself with the merits of the arguments.

We have put in writing that if your Honour does need to get to the merits then one thing that should factor in to that evaluation is that there is a preclusion and/or abuse of process argument that might well stand in the way of the capacity of the applicants to run the case that they now seek to run. 

I do not seek to say anything about that, beyond what we have already put in writing, but we do submit that Metwally (No 2) is authority for the proposition that even in the context of an attempt to raise a constitutional point there the argument that the Racial Discrimination Act was not supported by the external affairs power the Court applied the principle that you are bound by the conduct of your own case and so the principle there was applied to prevent constitutional arguments being run, particularly in circumstances where it was said by the Court that to run the argument would be contrary to an implicit assumption underpinning the case that had been run previously.

We make the same point here for the reasons that I have already identified, that the implicit assumption underlying the case that was advanced in the Federal Court was the validity of the cancellation decision and so there is a conflict with that assumption to now contend that because the cancellation decision was invalid there could obviously never have been a valid revocation.

The final point we make, your Honour, on merits is even leaving aside abuse of process and preclusion, the decision of four members of the Court in Shaw at page 43, paragraph 32 is an express statement that that case should be treated as authority for the proposition that a person is an alien if they entered Australia after 26 January 1949, if they were born outside Australia of parents who are not Australian citizens and if they have not been naturalised; those are the three components that were identified in Shaw by four members of the Court as effectively the ratio of that case.

Mr Vella is a person who does satisfy the criteria.  He is an alien, undoubtedly, on the authority of Shaw.  So that unless that whole question is revisited yet again, the Court having already gone through the process in Nolan, queried in Patterson and then Nolan restored in Shaw, he cannot succeed in his argument that he is not an alien quite irrespective of the voter or electoral rights question. 

So while, of course, it is possible that the Court might choose to revisit that line of authority, at the stage of an extension of time where your Honours have been engaged in a higher level evaluation of the merits, we submit that the merits must be regarded as very doubtful.  Your Honour, in the event that an extension of time were to be granted I would seek to be heard about that conduct of the matter going forward, but can I ‑ ‑ ‑

HIS HONOUR:   Well, we will take it in stages.

MR DONAGHUE:   Yes, thank you, your Honour.  If the Court pleases.

HIS HONOUR:   Yes, thank you.  Mr Walker.

MR WALKER:   Without repeating things already said in‑chief, nothing further, your Honour.

HIS HONOUR:   Yes, thank you very much.  I will reserve my decision and I will give my decision at 3.00 pm on Monday, 30 November in Canberra.  There will be no need for the attendance of counsel.

MR WALKER:   If the Court pleases.

MR DONAGHUE:   May it please, your Honour.

AT 10.08 AM THE MATTER WAS ADJOURNED