VPKY v Minister for Home Affairs & Ors
[2021] HCATrans 54
[2021] HCATrans 054
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M105 of 2020
B e t w e e n -
VPKY
Plaintiff
and
MINISTER FOR HOME AFFAIRS
First Defendant
A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
Second Defendant
ADMINISTRATIVE APPEALS TRIBUNAL
Third Defendant
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON WEDNESDAY, 31 MARCH 2021, AT 10.01 AM
Copyright in the High Court of Australia
MR A.F.L. KROHN: May it please the Court, I appear for the plaintiff. (instructed by Hall & Wilcox)
MR G.A. HILL: Your Honour, I appear for the Minister. (instructed by Sparke Helmore Lawyers)
HIS HONOUR: Yes, Mr Krohn.
MR KROHN: Thank you, your Honour. Your Honour, just perhaps to clear the ground at the beginning, the plaintiff does not press an argument that there was an error of law on the face of the record as the basis for certiorari, so the grounds are limited to the argument of jurisdictional error.
HIS HONOUR: Yes, thank you.
MR KROHN: Thank you, your Honour. Your Honour, the compass of the application is relatively confined. There were two grounds which the plaintiff sought in her application before his Honour Justice Middleton to press on the appeal if she got her extension of time. One of those grounds was the failure, it was said, of the Tribunal to take account of relevant considerations and, in particular, that the consequence of the decision of the Tribunal not to revoke the cancellation of her visa would have the consequence that she would never see her elderly parents again, that they would die without her being there with them, that would be a distress for them and a distress for her.
It was submitted that this was an arguable ground because the representations that were made by the applicant to the Minister seeking revocation of the cancellation of her visa were relevant mandatory considerations under section 501(CA) of the Migration Act 1958, but also they were relevant considerations because they came within the scope of Direction 79 made by the Minister.
I perhaps do not need to take your Honour to that, unless your Honour desires me to do so, but it is in the plaintiff’s material as exhibit 2 to the affidavit that was filed in support, and it was the supplementary court book ‑ ‑ ‑
HIS HONOUR: This is the affidavit of Mr Kennedy?
MR KROHN: Yes, that is correct, your Honour.
HIS HONOUR: I will take that affidavit as read, then. I assume you would rely on it.
MR KROHN: I do rely upon it, if it please the Court.
HIS HONOUR: Yes, thank you.
MR KROHN: Thank you. So, it is submitted that that was a relevant - those were relevant questions for the Tribunal to determine, that the Tribunal did not determine them explicitly and that, as a consequence, the Tribunal fell into jurisdictional error by failing to deal with a mandatory relevant consideration.
HIS HONOUR: Do I have the decision of the Tribunal before me?
MR KROHN: Yes, your Honour, it is exhibit 1 to that affidavit.
HIS HONOUR: I see.
MR KROHN: Perhaps, if it is helpful, your Honour, the relevant – all of the reasons set up the approach of the Tribunal, but perhaps there are particular paragraphs to which I might direct your Honour’s attention. Broadly speaking, Direction 79 set out two kinds of considerations for the Tribunal to have regard to, primary considerations and other considerations. I will not take your Honour to that at the moment, but that direction is also in the materials exhibited to that affidavit. I am sorry, does your Honour have the Tribunal’s reasons?
HIS HONOUR: Yes, I do, thank you.
MR KROHN: Thank you. Before I take your Honour to the paragraphs, perhaps, of special importance, the Tribunal had to apply the Minister’s direction that was a mandatory consideration because of section 499 of the Migration Act, and that direction broadly separated the considerations into two kinds: primary considerations which were concerned with the protection of the Australian community and the expectations of the Australian community and the best interests of any minor children; and also other considerations which included strengthened ties of a visa holder to the Australian community, and it covered things such as that there may be additional latitude given to somebody who has for some considerable time been in the community and made some positive contribution, and to somebody who has been in Australia from a young age.
So, if I can take your Honour, perhaps initially to paragraph 25, this is within the Tribunal rehearsing the material relating to the question of primary consideration, so particularly concerning the protection and safety of the Australian community and expectations. Perhaps I should note also that the Tribunal accepted, and there was no real dispute, first, that the applicant’s drug offending fell broadly into two episodes separated by a period of years - and your Honour will see some of that in more detail in the Tribunal’s reasons, but also that this offending was connected with, and consequent upon, a period of years at a very young age of suffering serious sexual abuse as a child, and also violent abuse, domestic abuse by partners when she was of a young age, and then later on ‑ ‑ ‑
HIS HONOUR: The relapse was said, in the Federal Court, to have been caused by the death of a close friend whom she ‑ ‑ ‑
MR KROHN: Yes, that is so, your Honour. Yes, your Honour. Then, if I take your Honour to - perhaps these are helpful paragraphs of the Tribunal’s reasons. Paragraph 25, the Tribunal noted applicant’s expressions of remorse and accepted – this is lines 2 and 3 of paragraph 25:
that the applicant has a level of remorse. The Tribunal was certainly persuaded that the applicant regrets her offending and, in particular, regrets the pain it has caused her family –
but then the Tribunal considered, a line further down:
this was somewhat tempered by the attempts the applicant made at various points in her evidence to downplay her responsibility –
Then your Honour will see, at paragraph 26, again the reference to the death of the close friend that your Honour just mentioned was mentioned in the reasons of Justice Middleton. Then in paragraph 27, the reference to:
significant earlier personal trauma suffered by the applicant in the form of sexual and physical abuse –
Then, perhaps, if your Honour turns to paragraph 31, it makes findings about that aspect of the evidence, so at line 4 of paragraph 31:
having heard the applicant’s oral testimony and considered all of the documentary evidence the Tribunal accepts that the applicant has suffered forms of sexual and physical trauma in the past and that it is relevant in understanding the context for her use of drugs at various points in her life. Further, the Tribunal acknowledges that the applicant’s drug use is important context to her criminal offending. However, it does not excuse the applicant’s offending, it certainly does not lessen the seriousness of it and nor does it reduce the likelihood of similar offending occurring in the future.
Then the Tribunal noted evidence about her efforts of rehabilitation and treatment in paragraphs 32 and 33. Then, perhaps, your Honour, if I pass to the Tribunal’s assessment of the level of risk of reoffending, at paragraph 42, the Tribunal makes a number of points. At subparagraph (a) the Tribunal accepts:
the applicant has demonstrated a level of remorse and insight . . . There is no question in the mind of the Tribunal that the applicant regrets her offending and the pain it has caused her personally and also her family. There is also no question that the applicant considers the ongoing threat of deportation to be a significant incentive to avoid reoffending.
Then (b):
the applicant is a fundamentally decent person who has engaged at various times in her life in serious drug use that can fairly be described as addiction and that, as a consequence of that drug use, has engaged in serious offending. The Tribunal also accepts that the applicant’s use of drugs in large part emotionally driven, either as a consequence of past trauma, troubled relationships, or other emotional stresses. It has also been associated with poor choices in respect of partners and friendship groups. However, as the respondent contended, the applicant is likely to be confronted with similar circumstances again in the future and that this presents a genuine risk in terms of her potential to relapse –
Then paragraph (c), a note about the applicant’s evidence:
to better understand her offending –
but the Tribunal concerned at the end of that paragraph, that some of:
the arrangements the applicant had in place to ensure this type of support . . . did not appear well developed.
Then there was a note about support structures at subparagraph (d), and the respondent’s submission that they had been available previously. Subparagraph (e):
the applicant has behaved well while in custody and had significant period of abstinence while in the community previously.
Then (f):
the applicant’s current resolve has not yet been tested in the community.
At paragraph 44 the Tribunal assesses, first two lines:
the Tribunal cannot be satisfied that the risk of the applicant relapsing back into drugs is minimal or trivial. In the view of the Tribunal the risk is real and that if the applicant were to relapse back into drug use the risk of her reoffending again is substantial.
Paragraph 45:
The Tribunal is satisfied that the applicant’s risk of reoffending is sufficiently real to raise concerns about the safety of the Australian community.
At paragraph 46, the Tribunal weighs up that:
the protection of the Australian community should weigh very heavily in favour of not revoking the mandatory cancellation of the visa.
Then “The best interests of minor children”, the Tribunal considered that there was an absence of a close relationship between the applicant and the only minor children, great niece and nephew, and was not satisfied it was in their best interest that the mandatory cancellation of the visa be revoked. The Tribunal turned to the “Expectations of the Australian community”, and then, at paragraph 54:
The Tribunal accepts that in light of the findings above . . . the Australian community would expect that the applicant’s mandatory cancellation of her visa not be revoked.
I simply interpolate there, your Honour - the Tribunal turned, at paragraph 59, sorry:
The Australian community would also expect careful consideration is given to the potential impact not revoking the mandatory cancellation of the applicant’s visa could have on the applicant’s other family members including her elderly parents, sisters and daughter. This is particularly so having regard to the health concerns of the applicant’s ageing parents.
But then at paragraph 60:
the Tribunal is satisfied that the nature and seriousness of the applicant’s offending, the risk of her reoffending and the potential harm that could cause to the community is such that despite these issues the Australian community would expect that the mandatory cancellation of the applicant’s visa not be revoked.
For these reasons, the consideration of the expectations of the Australian community weighs in favour of not revoking the mandatory cancellation of the visa.
Then the Tribunal turns from primary considerations to “Other Considerations”, and beginning at paragraph 63, the “Impact on family members (and strength, nature and duration of ties more broadly)”. That term, “strength, nature and duration of ties”, that is, to Australia, is taken from Direction 79, your Honour. Then paragraph 69 – sorry, your Honour, perhaps each of these paragraphs is worth noting, but I will not read all of them, your Honour. Paragraph 63, family connections, and then paragraph 64, a reference to:
A significant number of witness statements . . . in support of the applicant -
including by family members. Then in paragraph 65, reference to the applicant’s sister, paragraph 66 as well. Paragraph 67:
The applicant’s parents both gave evidence to the Tribunal. They are both elderly and in declining health. The applicant’s mother is legally blind and has survived three bouts of cancer. The applicant’s mother spoke of the important role her daughter could play in caring for her and her husband as they got older and also the opportunity that would present for them to care for her. She told the Tribunal “we can all care for each other”. She told the Tribunal she would be “heartbroken” if her daughter was removed from Australia. The applicant’s father spoke of his strong commitment to helping his daughter and his concern about her returning to the United Kingdom telling the Tribunal “there is no one for her there”.
The Tribunal accepted, paragraph 68 ‑ ‑ ‑
HIS HONOUR: Does 67 need to be read with 59?
MR KROHN: It is difficult to say, your Honour, because – perhaps I do need to take your Honour to exhibit 2. If your Honour goes to exhibit 2, and within that to page 55, this is within the direction - the direction is set out in three parts, A, B, and C. Part C begins at page 53 and that relates to revocation requests and on page 53 there is point 13, so it is point 13 within the direction. It is “Primary considerations – revocation requests”, and then there are three primary considerations, 13.1 “Protection of the Australian community”, and there are sub‑parts of that, and then 13.2, at the bottom of page 54, “Best interests of minor children” and 13.3, “Expectations of the Australian community”.
On the face of it, the direction requires the expectations of the Australian community to be a primary consideration and the only substantive detail that is given in that is relating to the seriousness of the conduct. Having said that, your Honour, it is clear that the Tribunal did make some reference in paragraph 59 to:
The Australian community would also expect careful consideration is given to the potential impact not revoking the mandatory cancellation of the applicant’s visa could have on the applicant’s other family members –
That is not the same, with respect, as the Tribunal at that point in the reasons considering all of the aspects of the family situation, both the effect of not revoking the cancellation on the applicant before the Tribunal and also on the family members. It may be, your Honour, that ‑ ‑ ‑
HIS HONOUR: But it is not – the exercise is not really one of engaging in three separate primary considerations. It is one single exercise as to which there are primary considerations that all feed in together.
MR KROHN: Yes, your Honour, and the level of detail of the consideration given by the Tribunal in its reasons in relation to the other considerations, in my submission, suggests that at paragraph 59 it was not really engaging in any detailed assessment, as it was under that broad rubric of primary considerations ‑ ‑ ‑
HIS HONOUR: Yes, I see.
MR KROHN: ‑ ‑ ‑ as it was under other considerations. I think I had got your Honour to paragraph 69. Is that correct?
HIS HONOUR: Yes, that is right.
MR KROHN: Thank you, your Honour, and then the Tribunal notes at paragraph 70:
a higher tolerance –
under the direction:
towards offending in respect of visa holders who have strong ties to the Australian community and where they have lived in Australia for most of their life.
Then it is emphatic when it says:
That is certainly the case with respect to the applicant.
It notes positive contributions the applicant made through:
hard work in retail, as a nurse, in aged care and as a farm hand . . . industrious and earning a reputation for hard work during the periods she was not taking drugs.
Then over on to page 31 of the exhibit, still in paragraph 70:
also evidence of the applicant’s significant contribution to community groups including in particular in relation to animal welfare and the elderly . . . must of course tempered by her criminal offending.
Paragraph 72:
On balance, the Tribunal finds that the impact on the applicant’s family and the applicant’s significant and long standing ties to Australia weigh heavily in favour of revoking the mandatory cancellation of the visa.
Then the question of impediments is considered at paragraph 75, paragraph 76 as well, focusing particularly on health concerns. There is no consideration under that heading of “impediments” that one of the things that the applicant would confront on returning to the United Kingdom after decades away from it since a child would be that she would be going there knowing that she would never see her parents again, and that they would die without her. The Tribunal comes to its conclusion at paragraphs 78 and 79, and its balancing exercise is in paragraph 79, and it:
acknowledges that the risk of reoffending remains real with a potential for further harm to the community should that occur. However, this needs to be weighed against the impact on her family, the length of time she has lived in Australia, the very significant ties the applicant has to the Australian community, as well as the challenges she may face if she were to return to the United Kingdom. Having very carefully weighed all of the considerations, the Tribunal is satisfied that the overall balance weighs slightly in favour of a decision to not revoke the mandatory cancellation of the applicant’s visa.
Then the Tribunal made the decision. Thank you, your Honour, for your patience with me taking your Honour through that. The consequence of that was that the argument was put at first instance before his Honour Justice O’Callaghan that the Tribunal had erred. There were some other grounds put that were pressed, but the relevant ones before your Honour today are the failure to take account of relevant considerations, and specifically that the effect of the non‑revocation decision would be that the applicant would never see her parents again, that they would die without her, she would not be able to be present at their deaths. Then, secondly, that, taken overall, the determination of the Tribunal was legally unreasonable, and that part of that unreasonableness, of course, is also, in my submission, informed by the failure to take account of those points which are mentioned under the relevant considerations rubric.
HIS HONOUR: Are those two points really independent points? Let me put it this way, in light of what you have just said. If the Tribunal were to be understood, as Justice Middleton and Justice O’Callaghan understood it, as saying that, or as having taken into account the relevant factor of whether the applicant would ever see her parents again, would it still be able to be said that the decision was legally unreasonable?
MR KROHN: The unreasonableness, your Honour, in my submission, covered, if you like, the whole field, and part of that is simply the fact of a woman who is facing removal from Australia in her 50s after perhaps a somewhat chequered life, but having been here since a child, having fallen into drug use and then into some offending, but in the context of some serious episodes of trauma extending over, at least in her early youth, some significant period of time, and also the long periods of hard work. So, the unreasonableness, your Honour, was not put merely as confined to the failure to take those issues about the parents into account, but they certainly were part of that.
HIS HONOUR: All I am trying to ask, though, is that are the two submissions, or the two grounds, independent? I mean, you say that those relevant considerations are at the heart of it. If the relevant considerations had been taken into account, do you say that, even with the wide degree of judicial latitude that is usually afforded in the context of legal unreasonableness, that there would still be scope for it to be said that the decision of the Tribunal was legally unreasonable?
MR KROHN: Yes, your Honour, simply on the basis of those factors that I later mentioned to your Honour.
HIS HONOUR: All right.
MR KROHN: That is, the extent of time, the periods of positive contribution, the traumatic background, the fact that she was going back to a country that she has not been in for approximately 50 years with nobody there, that in those circumstances, in my submission, the reasonableness ground would still be open and, on that basis, your Honour, the submission before your Honour today is that it was not reasonably open - this is perhaps ground 3 of the application - for his Honour Justice Middleton to conclude that there was no merit in the reasonableness ground, that is, none at all, such as not to be properly arguable.
Perhaps I can simplify the structure of the applicant’s grounds before your Honour today in this way, that the primary submission is that on a construction of the reasons of his Honour Justice Middleton, his Honour was making a concluded view about the points sought to be raised on appeal rather than making a finding on the relevant threshold question of whether there was, in the circumstances, a sufficiently arguable case to be put on appeal.
HIS HONOUR: But the two are not necessarily independent, are they? I mean, if he were to reach a conclusion that the case was not arguable at all, that effectively is reaching a final conclusion as well.
MR KROHN: Yes, it can be, your Honour.
HIS HONOUR: But it is also answering the question of whether it was sufficiently arguable.
MR KROHN: Yes, in theory that is correct, your Honour, but in a case where, in my submission, there was quite a deal of complex material that was the basis of the grounds of appeal sought to be put, that the very, if I may respectfully say, very brief and perhaps rather brisk conclusion of his Honour Justice Middleton in my submission indicated that his Honour was not considering the threshold question. But if I am wrong about that, your Honour, then that leads, with respect, the unreasonableness ground, that is, whether it was reasonably open to his Honour.
If your Honour determines that on a proper construction of Justice Middleton’s reasons he was making – he was directing his mind to the correct threshold question, then, in my submission, the conclusion that his Honour made was not reasonable. Perhaps in order to sustain that submission, I should refer your Honour to a couple of cases that are in the joint list - I am sure your Honour is familiar with at least one of them, and so I am happy to be guided by your Honour as to whether you would find it helpful for me to take you to any of the paragraphs in extenso. One of those is Omar, and that appears, your Honour - it is case 5 in the joint bundle.
HIS HONOUR: It is (2019) 272 FCR 589.
MR KROHN: Yes, your Honour. I perhaps would indicate that Omar was also a case involving section 501CA, and the court gave some consideration to the question of the representations, and there is perhaps a helpful summary from paragraphs 34 through to 40 of some of the principles that the Full Court derived from the authorities. Amongst those, perhaps I would direct your Honour’s attention to the point made at paragraph 34(c) - it is at the top of page 603 of the report - and that is the note by the court that:
Consistently with s 25D of the Acts Interpretation Act1901 (Cth), the obligation to set out the reasons for the decision requires the Assistant Minister –
I just interpolate, your Honour, so here, the Tribunal:
also to set out the findings on material questions of fact and refer to the evidence –
and then, subparagraph (d) of that paragraph, the Full Court refers to Yusuf, which, as your Honour is well aware, allows that an inference might be drawn from reasons that a matter has not been considered, and then, subparagraph (e):
The representations made on behalf of the respondent . . . are, viewed as a whole, a mandatory relevant consideration, but not every statement in the representations can be so described –
Then the Full Court refers to the case of Goundar, which the Minister also refers to in his submissions before your Honour. Perhaps, then – at paragraph 36 the Full Court has some other points about principles it distils from the case of Carrascalao, and then subparagraph (b) noting that:
The Full Court proceeded on the basis –
that is the Full Court in Carrascalao:
however, that there was an implicit statutory duty to consider the merits of the two cases, which included a volume of material provided by the judicial review applicants –
Then at subparagraph (c) of 36, the Full Court refers to Tickner v Chapman and to Justice Burchett’s observations about:
What is it to “consider” material such as a report or representations? In my opinion, the Minister is required to apply his own mind to the issues raised by these documents.
HIS HONOUR: So, these passages are all in support of your submission that the representation by the applicant about the failure to see her parents again was a mandatory relevant consideration?
MR KROHN: Yes, your Honour. I note that the Minister makes the submission that the representations as a whole are the mandatory relevant consideration, but not necessarily the individual statements and claims. I note also that the Minister, in support of that proposition, refers to another judgment of the Full Court of the Federal Court ‑ ‑ ‑
HIS HONOUR: But Justice Middleton did not say, did he, that these were not mandatory relevant considerations? As I read his decision, and maybe I am wrong, but I read him as proceeding on the assumption that they were.
MR KROHN: Yes, your Honour, then in that case I do not, perhaps, need to press that point too hard before your Honour. But the question is whether the Tribunal, reading its reasons fairly, should have been taken, as clearly his Honour Justice Middleton and Justice O’Callaghan did, to have dealt with this important question of the applicant and her parents implicitly. In my submission, that because of the specificity of Direction 79, which requires an assessment of the strength, nature and duration of the ties of a visa holder to Australia, that that means that such a grave matter, in my submission, cannot properly be taken to have been dealt with, to have been considered, in the requisite legal sense, implicitly.
That really is the basis of the ground of appeal which the applicant was seeking to raise by getting her extension of time to appeal, but both Justices O’Callaghan and Middleton seem to be at one view that they took about the Tribunal’s reasons for the construction of them. In my submission, it is clearly a live and arguable point, and a proper point requiring to be considered on appeal, whether the Tribunal did indeed consider this matter which, in my submission, was squarely before the Tribunal. Perhaps in that case, I do not need to read anything further from Omar. I might give your Honour perhaps a couple of paragraph numbers, if that is helpful for your Honour.
HIS HONOUR: Certainly.
MR KROHN: So, perhaps paragraph 36(c) - that is where I was before, and then 37, which includes a quote from the judgment of the Chief Justice in Hands v Minister for Immigration, also paragraph 39. I should also, perhaps simply because it is a matter that the Minister raises in his submissions, direct your Honour’s attention to that case which is number 4 in the joint list – perhaps I will not, but there is one paragraph I might read from, your Honour. It is paragraph 50, so at paragraph 50 of the report in that matter – this is a judgment of their Honours Justices Katzmann, O’Callaghan and Derrington:
There is nothing in this which suggests that a finding needs to be made in relation to each submission, argument or claim made by a person who has made representations under s 501CA(3) and it is far from apparent that the decision in Omar sought to depart from it. Indeed, that seems unlikely.
HIS HONOUR: Which decision are you reading from now?
MR KROHN: This is the decision in Guclukol v Minister for Home Affairs [2020] FCAFC 148.
HIS HONOUR: Yes, thank you.
MR KROHN: On the point of principle, the Minister relies upon this case in his written submissions to the effect that, at paragraph 49, line 3 in Guclukol:
As mentioned, observations in Omar do not require that the Minister make a finding in relation to every claim or ground raised in a representation –
That is at lines 3 and 4 of paragraph 49, your Honour.
HIS HONOUR: Yes.
MR KROHN: But then if your Honour goes to the last line on the page of the report - it is line 4 in paragraph 50:
The point there –
that is in Omar:
articulated was not that there existed any superadded duty on a Minister to make explicit findings about each claim, merely that, in some circumstances, the absence of a specific finding will support the conclusion that the claim was not considered. The nature of such circumstances was not articulated, but the reasons in Omar suggest (particularly at 586 [40]) that they include where the claim in question is an objectively significant or pivotal claim in relation to the state of mind to be formed or the power to be exercised.
Your Honour, I can leave that Omar point there then, but, in my submission, this was an important and pivotal point, the matter of…..and the absence of reference by the Tribunal in its reasons to this aspect of the matter leaves, in my submission, at least an arguable, in my submission I would say a strong, but at least an arguable appeal point that the Tribunal failed to have regard to a relevant consideration it was required to have regard to and thereby fell into jurisdictional error. Therefore, in my submission, the first of the grounds sought to be raised on appeal was one which did have merit and, therefore, his Honour Justice Middleton erred either by not having regard to the proper threshold question, or in coming to an unreasonable conclusion about it.
I make the similar submission, your Honour, in relation to the unreasonableness ground sought to be raised against the Tribunal, while I note your Honour’s point that there is at least some significant overlap between the two grounds that were sought to be raised on appeal.
HIS HONOUR: Just in relation to each of those submissions, your two submissions of error by Justice Middleton are the failure to have regard to what you say was the threshold question, and I interpolate, in effect, deciding the matter finally rather than on a threshold‑type issue.
MR KROHN: Yes, your Honour.
HIS HONOUR: And secondly, reaching a conclusion that was legally unreasonable.
MR KROHN: Yes, your Honour.
HIS HONOUR: You say both of those are jurisdictional errors?
MR KROHN: Yes, your Honour.
HIS HONOUR: Take the first point first, if there was an error in failing to have regard to the question as a threshold question rather than as a final question, why would that be a jurisdictional error rather than just an error of law?
MR KROHN: Because the jurisdiction of his Honour to extend time was a matter necessary to do justice between the parties. The discretion to extend time is a broad discretion that reposes in the court under the Act and the rules, but it is a discretion which is required to be exercised having regard to all of the circumstances of the matter where the extension of time is sought.
I referred – it is not in the list of authorities, your Honour, but I referred in the written submissions to the judgment of Justice McHugh in Gallo v Dawson. I do not have a citation for the - I think the citation I have put in the written submissions, your Honour, I do not have it in front of me at the moment. It was a brief judgment, but that, in my submission, in order for the Court to act judicially, to act within its jurisdiction in exercising this important discretion, it must have regard to all of the circumstances that are before it relating to merit and other matters.
I accept, your Honour, that taking your Honour’s earlier question that if a court properly determined that there was no merit at all in a ground sought to be run on appeal, then it would not be necessary for the Court to consider questions such as prejudice to the parties or an explanation of delay. Those are questions which I accept are relevant only insofar as there has been a proper determination that the grounds sought to be raised had absolutely no merit whatsoever and cannot be run. But if that finding is flawed, then there is a necessity, in my submission, to have regard to the other matters.
HIS HONOUR: Yes.
MR KROHN: I accept his Honour Justice Middleton proceeded on the basis that all that was necessary for him to determine the application for extension of time was the merits. But, for the reasons I have submitted before your Honour, his Honour was in error in his conclusion about the merits, and so a consequence of that is that his Honour ought to have considered the other matters as well, but essentially the application before your Honour falls to be determined on that core point of the – whether his Honour correctly had regard to the right threshold, to the right question, the threshold question, and ‑ ‑ ‑
HIS HONOUR: Yes, and the unreasonableness ground that you raise in relation to Justice Middleton’s decision, that is not a question of whether the decision of the Tribunal was legally unreasonable, is it?
MR KROHN: No.
HIS HONOUR: That is a question of whether it was legally unreasonable for Justice Middleton to reach the conclusion that it was not legally unreasonable for the Tribunal to have reached its conclusion.
MR KROHN: Well, yes, your Honour, or at least for his Honour Justice Middleton to reach the conclusion that it was simply not arguable that the Tribunal was unreasonable.
HIS HONOUR: Yes.
MR KROHN: But the unreasonableness ground before your Honour proceeds on the basis that – of assessing what would have been reasonable
for Justice Middleton, having regard to the correct question, that is, whether the ground sought to be raised was sufficiently arguable to be allowed to go to appeal.
HIS HONOUR: Yes.
MR KROHN: Unless your Honour has any further questions or there are any matters with which I can help your Honour, those are the submissions in support of the application.
HIS HONOUR: Thank you.
MR KROHN: May it please the Court.
HIS HONOUR: Yes, Mr Hill.
MR HILL: Thank you, your Honour. Could I just spend a moment clarifying the nature of the proceeding for your Honour? Now, it might be most convenient to do this with a copy of the Minister’s response in hand, if you have it close to hand, your Honour, just so your Honour can see where I have made these points in writing.
HIS HONOUR: Certainly.
MR HILL: The first point is just in paragraph 3 of that document, your Honour. That is to say, this is an application for judicial review of his Honour Justice Middleton’s decision, so it is not possible for this Court to actually grant the extension of time sought.
HIS HONOUR: Yes, I think that is the point that Mr Krohn was making at the end of his submissions, why the focus upon Justice Middleton’s reasons is a focus upon whether or not there was a jurisdictional error in those reasons, and I think he identifies two possible, or two alleged jurisdictional errors.
MR HILL: Exactly, your Honour, but let us imagine your Honour is with my learned friend and finds that one or both of those errors is made out. Your Honour could not grant the extension of time sought unless your Honour formed the view that only a single decision was available in these circumstances. Normally, your Honour would set aside his Honour’s decision and say it is quashed and ‑ ‑ ‑
HIS HONOUR: Yes.
MR HILL: ‑ ‑ ‑ the Federal Court has to remake its decision, not you, the High Court, exercise the discretion reposed in the Federal Court as to whether to grant an extension of time.
HIS HONOUR: Yes.
MR HILL: So, my first submission is that the order, (a), cannot be made. The second matter is just to quickly go through the points developed in paragraph 11.1, your Honour.
HIS HONOUR: Yes.
MR HILL: Does your Honour see that there are two points made there? The first is that certiorari is only available against the orders of a superior court where those orders are made in excess of jurisdiction, and I have cited the decision of her Honour Justice Gordon of BLS16, which is in the authorities. I am wondering, your Honour, whether I need to take your Honour to it or whether your Honour is prepared to take that as read.
HIS HONOUR: Yes, I think we come across certiorari fairly often.
MR HILL: I did not think I needed to take your Honour to it, but it is there if your Honour wants to have a look at it. The second point made in paragraph 11.1 is a point made by your Honour, in the case of a court decision, an error of law may be appealable but will not usually be a jurisdictional error, and your Honour said that in a decision of Plaintiff S254 [2019] HCATrans 212. Again, I imagine I do not need to take your Honour to your Honour’s own reasons. But that is the Minister’s answer to the grounds, the so‑called jurisdictional errors of his Honour Justice Middleton. The Minister’s submission is certainly the first ground, it is simply an error of law, it is not a jurisdictional error.
In that context, I note that Gallo v Dawson, which my learned friend referred to, that was an extension of time to bring an appeal, not for judicial review, so Gallo v Dawson does not say anything about whether something is or is not a jurisdictional error.
Could I then move, your Honour, to responding to ground 1 of this application, which contends that his Honour Justice Middleton applied the wrong test to determine whether there was an extension of time and, in my submission, this ground turns on how your Honour interprets his Honour’s reasons.
The Minister contends that the proper understanding of his Honour’s reasons is his Honour decided that, even assuming all the other factors in the applicant’s, the then applicant’s favour, the proposed grounds were not sufficiently arguable to warrant an extension of time. So that is the construction of his Honour’s reasons I will be urging on your Honour and my first submission is that if your Honour agrees with me as to how to interpret his Honour’s reasons, then there is no error, and I refer, in this context, to ‑ ‑ ‑
HIS HONOUR: I am not sure that can be right, for two reasons. One is that the question of sufficient arguability is one that is sufficient having regard to the weight or the extent of the other factors, so it would not be enough simply to say, well, one assumes all of the other factors in favour of an applicant. One would have to make a decision as to how weighty those other factors are before determining whether something is sufficiently arguable.
The second point is, as I understood these submissions that had been made by the Minister before Justice Middleton, the submissions were not that this was not sufficiently arguable so that the matters needed all to be weighed up in an overall assessment, but that the matters were not reasonably arguable at all. Was that not the submission that was made by the Minister? I think at one point Justice Middleton records that as the submission.
MR HILL: Yes. Now, your Honour has reminded me, could I seek to rely on the affidavit of Chris Orchard, affirmed on 13 November?
HIS HONOUR: Yes, I will take that as read as well.
MR HILL: Thank you, because that affidavit, if it assists your Honour, has the Minister’s submissions, which is exhibit CEO‑2, if your Honour has that.
HIS HONOUR: Yes.
MR HILL: What your Honour will see is there is discussion on page 5 of that document, I think it might be page 24 of the affidavit, of the factors – it starts at paragraph 23 of the submissions.
HIS HONOUR: Yes.
MR HILL: What your Honour sees, in paragraph 23, the Minister was saying there are a number of different factors. Paragraph 24 of the submissions acknowledged on the merits, they are determined:
at a “reasonably impressionistic level”.
Paragraph 25, the Minister contended that the reasons given for the delay were not acceptable, but accepted:
that the Court would have regard to whether the proposed grounds of appeal have any merit.
Then in paragraph 26 the Minister said, because the application was for an extension of time to bring an appeal, the question was whether there was any arguable error in how those arguments had been dealt with and rejected by the primary judge. Your Honour will see in footnote 5 there is a reference to a case that I rely on in this Court, DKX17. It is necessary both to establish error by the primary judge and jurisdictional error by the decision‑maker, and then the Minister said:
the proposed grounds of appeal are not sufficiently arguable to warrant granting an extension of time.
So that is the submission put to Justice Middleton. It was a submission that, even treating the other factors with the weight that the applicant would give them, the arguments were not sufficiently arguable, or certainly there was no arguable error in how the primary judge had dealt with them.
HIS HONOUR: Yes.
MR HILL: So, on the first point, your Honour says, well, how can you deal with – how can you say something is not sufficiently arguable without having regard to the other factors, and all I will do is refer your Honour in the decision of Justice Gordon, which I have given to the Court, BLS16 [2019] HCATrans 115. Her Honour summarises the decision being appealed against at page 3 of that decision. It is the final paragraph of that page, if your Honour has it.
HIS HONOUR: Yes.
MR HILL: What your Honour will see in that summary, the final paragraph – in the middle of the paragraph it records:
Derrington J stated that the merits of the proposed appeal grounds were frequently determinative of whether any extension of time would be granted. His Honour then addressed each of the five proposed appeal grounds and concluded that each lacked any sufficient merit to warrant an extension of time being granted.
Then her Honour Justice Gordon, over the page - this is page 4 of that document - in the final paragraph of that page her Honour says, after noting that:
the Federal Court Rules 2011 (Cth) vests in the Federal Court a broad discretion to determine whether or not to grant an extension -
her Honour said this:
When an application is made for an extension of time in which to bring an appeal, “it is always necessary to consider the prospects of the applicant succeeding in the appeal” –
Her Honour cites Gallo v Dawson. Then her Honour says:
The plaintiff does not assert that the Federal Court has acted without or beyond its jurisdiction and it did not.
So it is from that that I get the submission that it is open to reason, even assuming the other factors in favour of an applicant, and that includes giving them the weight that the applicant asserts they should have, it is open to say that a case is not sufficiently arguable to warrant granting an extension of time. In my submission that is what his Honour Justice Middleton did in this case.
Could I take your Honour – in writing I have referred to a number of different things in support of that, and what your Honour will see in paragraphs 12 and 13 - I have referred to the written submissions that were made to the court, and if your Honour wishes to look at them they are exhibits CEO‑1 and CEO‑2 of the Orchard affidavit - and in paragraph 13 I have referred to what his Honour Justice Middleton said at the hearing of the application, how his Honour said it was not necessary for the applicant’s counsel to address on the question of delay, and at the end of the hearing, this is at page 9 of the transcript, his Honour said he would:
not deal with the issue of delay . . . and go straight to the merits.
But could I take your Honour, just briefly, to his Honour’s reasons, and his Honour’s reasons are exhibit NLK‑5 to the Kennedy affidavit - I do not know if your Honour has them available.
HIS HONOUR: Yes, I do.
MR HILL: I would like to emphasise two matters. The first is paragraphs 14 and 15, your Honour.
HIS HONOUR: Paragraphs 14 and 15 do not say what you say that Justice Middleton had decided. Paragraph 15 says that - understands the Minister’s submissions to be that there was no arguable error, not that it was not sufficiently arguable in light of all of the factors.
MR HILL: Your Honour, there are two things. The first is to say that it would be surprising if his Honour, having carefully set out particularly the applicant’s argument in 14, and thus being conscious of the different factors, was then to ignore those factors. That is the first submission.
HIS HONOUR: Well, the answer to that is one does not have regard to those factors if there is no arguable error and that would ‑ ‑ ‑
MR HILL: Exactly, I say ‑ ‑ ‑
HIS HONOUR: That is what Mr…..has conceded.
MR HILL: That is what I say his Honour has done, and I now see, your Honour, looking at paragraph 15, where the confusion I may have engendered in answering your Honour’s question - the sufficiently arguable might apply - might be, if one was asking the merits of these grounds of review in the abstract, are they sufficiently arguable. What I did in the course of answering your Honour’s question was to say when it is an application to extend time to bring an appeal, to repeat arguments that have been considered fully and rejected, the question is, is there any arguable error in the reasoning of the primary judge?
So that is the test that does appear in paragraph 15, and that is a fair summary of what the Minister’s submission was. I apologise if there has been confusion. That is the difference. Sufficiently arguable when the application is repeating arguments that have been considered and rejected, what is sufficiently arguable is whether there is any arguable error in the reasons for rejecting those arguments at first instance, is the submission that was put. So, then what your Honour sees is that in paragraph 31, his Honour said:
It is appropriate in this application to consider directly the merits of the proposed appeal in deciding –
So that is why I say, given what has already been written, that is properly understood as his Honour deciding that he would focus on the issue of merits, implicitly assuming all the other factors in the applicant’s - the then applicant’s favour.
Now, your Honour, I wonder if what would assist your Honour is me to spend a little bit of time refuting the applicant’s ground 2, to say that his Honour was correct to say that there was no arguable error in the reasons of Justice O’Callaghan in rejecting those two grounds at first instance.
But can I say this, I repeat the submission made earlier that the question is whether his Honour Justice Middleton exceeded or failed to exercise jurisdiction. So, in my submission, if we are having a debate as to whether he was legally correct in saying arguments were not sufficiently arguable, in my submission, even accepting there was an error by his Honour, it would only be an error of law within jurisdiction at most, it would not be a jurisdictional error. Having said that, can I – if your Honour has the Minister’s response ‑ ‑ ‑
HIS HONOUR: Mr Hill, if the decision were one that was not open to Justice Middleton to make, which is Mr Krohn’s submission, then it would be a jurisdictional error in the sense that if it were so unreasonable that no Federal Court judge could reach that decision, that would be jurisdictional error, would it not? Or are you saying that unreasonableness is not a condition upon any superior court judges’ decision‑making ability?
MR HILL: What I am saying, your Honour, is that to ask that question, is this a decision that was not open to his Honour Justice Middleton, is to ask the right question.
HIS HONOUR: Well, that was Mr Krohn’s submission.
MR HILL: The reason I am stressing the point, and I am grateful to your Honour for clarifying, is that to decide whether a matter has been dealt with in a set of reasons is in large part a construction of a particular set of reasons and drawing inferences from it. So, as long as it is understood the prism for dealing with this argument is legal unreasonableness, then that focuses the mind on the appropriate level of stringency in this task.
So, the first proposed ground is a failure to consider a representation would mean that the plaintiff would never see her parents again and they would die without her being present. If your Honour has the Minister’s response, could I ask your Honour to go to paragraph 18 and following.
HIS HONOUR: Yes.
MR HILL: What I just point your Honour to is the case referred to in paragraph 18. There is Guclukol, which I have provided to the Court, which concerns the full extent of Omar, but there is also a case called Buadromo (2018) 267 FCR 320, and I have referred to paragraphs 60 and 46. Now, that case is not before your Honour, but I can inform the Court it is an example of the Full Court saying a finding can be implicit - even with a significant representation it might be that it is dealt with at a high level of generality.
HIS HONOUR: Well, you do not really need an authority for that, Mr Hill. That is part of ordinary language.
MR HILL: Yes, exactly. In the Federal Court, your Honour, it is often put as a matter of authority, but I adopt what your Honour says. So, if your Honour has the Minister’s response, what I have said in paragraphs 21 and 22 of that response is just to summarise the approach of their Honours, which in my submission is plainly correct, which is the Tribunal accepted the facts set out at paragraphs 21.1 to 21.5. Your Honour will find those findings of fact at paragraphs 67 and 69 of the Tribunal’s decision.
What I rely on is summarised at paragraph 22 of the response, which is that, having made these express findings, the fact that the applicant would not see her elderly and ill parents again is the self‑evident consequence of these findings, therefore, the Tribunal can be taken to have accepted that this was a consequence of non‑revocation without it needing to be said in terms.
So, in my submission, the approach of the primary judge and Justice Middleton on construing the Tribunal’s reasons is entirely orthodox. There is nothing in Omar to suggest that there is a requirement to make an express finding on every matter. It depends, and I referred your Honour to Buadromo which says a finding can be implicit. So, in my submission, this is an instance where the finding is clearly implicit in the other findings made by the Tribunal.
That is why I say there it is correct to say there is no arguable error in his Honour Justice O’Callaghan’s dealing - rejection of proposed ground 1. On proposed ground 2, on reasonableness, I can be even shorter. I would just emphasise two points. One is, your Honour referred to earlier and I embrace that there is a wide degree of judicial latitude when it comes to legal unreasonableness. That is an obvious point. But second, this is the review of a decision under section 501CA of the Migration Act, which confers a very broad discretion as well.
So, combining the broad discretionary nature of 501CA and the stringency of legal unreasonableness, the circumstances in which a decision might be legally unreasonable simply because of the result and the way that different factors were weighed must be vanishingly small, in my submission.
HIS HONOUR: Well, they are not actually two different points. It is the same point, because the bar of legal unreasonableness is itself shaped by the nature of the decision that is made. If the decision that is going to be made is one which is a broadly evaluative decision, then it is usually going to be a very high bar for legal unreasonableness, but the bar need not be so high when the decision is not so evaluative. I think the point is these are not – they are not two different questions, they are all part of the same question.
MR HILL: Your Honour, I accept that, that the content of legal unreasonableness takes account of the statutory context ‑ ‑ ‑
HIS HONOUR: That is 501CA here.
MR HILL: So, the statutory context here, the evaluative nature, the weighing of different factors means the content of – the test of standard of legal unreasonableness must be particularly stringent. So that is why, in my submission, I have summarised the particular points, but the Tribunal made clear findings as to the weight it gave its primary and other consideration, and the ultimate conclusion, the ultimate balancing, had an intelligible basis and the result could not be said to bespeak error as to show legal unreasonableness. Unless there was anything further ‑ ‑ ‑
HIS HONOUR: Yes. Could I ask you just one small point about this distinction that you made, or you make between sufficiently arguable error and any arguable error? If it is to be the case, as I understand the applicant to have submitted, that the factors that the applicant relies upon concerning the need to do justice between the parties, the nature of the litigation, the extraordinary consequences for refusal of an extension of time, if those factors weigh very, very heavily by themselves in favour of an extension of time, is there likely to be any difference between saying a sufficiently arguable error, in light of the strength of those factors is - or a sufficiently arguable case in light of the strength of those factors is a case which is, perhaps, very weakly arguable, or saying that, in light of the strength of those factors one really needs to conclude that there is no arguable error at all? In other words, is Justice Middleton really to be understood as having said that, in light of all those factors, he really just needs to conclude is there even a weakly arguable case here?
MR HILL: I would not accept that, your Honour, because there is not – the interests of justice do not demand that a person be allowed to argue anything that can be put consistently with a lawyer’s ethics, so a weakly arguable case. Could I make a second point? The way that one applies the test for an extension of time might have ‑ ‑ ‑
HIS HONOUR: Just before you move on from that, why is that the case? If it is, if the case is weakly arguable, but still reasonably arguable, so a case that could consistently be put, why, if all of the countervailing factors are extremely heavy, would that not be sufficient? In relation to interlocutory
injunctions, it is almost always sufficient to have a weakly arguable case if against that consideration there are extraordinary balancing reasons that would support or oppose the granting of the injunction.
MR HILL: Your Honour, my second answer was going to, I think, respond more substantively to your Honour’s concern, which is, we are not talking about a first opportunity to put an argument, we are talking about an extension of time to reagitate an argument that has been put against it and rejected, with reasons.
So, whatever the position might be, and I understand what your Honour puts to me, surely, if a person is facing very serious consequences, they need their day in court to put in a weakly arguable case. I do not need to respond to that, because the real question is, should there be any difference in arguability to have a second opportunity to repeat arguments that have been fully argued and rejected? So that is why I emphasise that factor here. Now, when it is an application of time to bring an appeal, then any difference in the standard of arguablility would only be very marginal, your Honour.
HIS HONOUR: Right.
MR HILL: Unless I can assist the Court.
HIS HONOUR: Thank you, Mr Hill.
MR HILL: Thank you, your Honour.
HIS HONOUR: Mr Krohn, anything in reply?
MR KROHN: Yes, a couple of points, if I may, your Honour. I would respectfully submit, following your Honour’s exchange, especially on this point with my learned friend, that it is the case that what is sufficiently arguable for an extension of time to be granted does depend upon the comparison of that with, or the interaction with, the other factors that are advanced as the reason for granting the extension of time. Insofar as a question of reasonableness is concerned, your Honour has in the list the case of Li - your Honour will be well familiar with it.
One of the observations made in Li, I think at paragraph 67 or 68, was to the effect that the standard of legal reasonableness or unreasonableness depends upon a statutory context in which it has to be assessed. My learned friend, I heard - I do not have a precise note - to have submitted that if there were very grave consequences, in some contexts, then that may affect the construction of what might be reasonable or unreasonable.
In my submission, your Honour, in exercising the discretion of the court, his Honour Justice Middleton was dealing with a case where there were very grave consequences, or potentially very grave consequences to the applicant if that extension of time was refused. That meant, saving the possibility of a successful application to this Court, the end of a challenge to the Tribunal’s decision, and her removal from Australia.
That is a very grave consequence and, in my submission, bearing in mind the need for the Court to exercise its discretion to extend time judicially, in my submission that informs the level of reasonableness to be applied in a particular case.
I have a couple of other brief points, your Honour. My learned friend has submitted that it is necessary to look for error in a case where grounds of challenge have been made at first instance, and the same grounds are sought to be put on appeal, or it is necessary to look to see whether there is error on the part of the primary judge.
With respect, your Honour, there are two answers to that. The first is, yes, in general terms, that is correct, but in the case where what is being argued is about whether the Tribunal fell into jurisdictional error, then, on the basis that the same grounds are sought to be put on appeal, really the question of whether there is an arguable case on appeal is essentially whether, on those grounds, the Tribunal fell into jurisdictional error.
While my learned friend referred your Honour to a case to the effect that it was necessary to have regard to the reasons of the primary judge, and I do not dispute that, equally there have been cases - I cannot call a citation to mind - but there have been cases where, at least the Federal Court has observed that in the context of judicial review of a tribunal decision, that on appeal the essential focus of the court is on whether the Tribunal fell into jurisdictional error.
But having said that, in paragraph - pardon me, your Honour, I am surrounded by a sea of paper. I am looking for a paragraph, I think perhaps paragraph 21 or 22 of his Honour Justice O’Callaghan’s decision. I am sorry, your Honour, I have that here. Yes, pardon me, your Honour, paragraph 22, his Honour made a central finding where he said:
It seems to me, with respect, that it goes without it being needed to be said in terms, that the tribunal therefore must be taken to have accepted that, as a consequence –
That is, as a consequence of factors set out in paragraph 21 of his Honour’s judgment:
the applicant would never see her parents again (because they would pass away before she could do so).
Now, with respect, your Honour, there is a considerable difference between the Tribunal having been taken to and having accepted that something may be a consequence, at least implicitly, that is to say that if somebody had tapped the Tribunal member on the shoulder and said, well, that would mean that they are not going to be seeing each other again, the Tribunal would then have said yes, but that is very far different, in my submission, from the Tribunal engaging with that proposition.
In my submission it remains a properly arguable point that the construction of the Tribunal’s reasons is not such as to mean that the Tribunal should be taken implicitly to have accepted that point. In my submission, the absence of something so serious rather suggests that the Tribunal did not deal with it at all, but certainly it did not consider it, because that, your Honour, in my submission, is such a grave aspect of what follows from the Tribunal’s decision that it could not be dealt with implicitly, it required to be dealt with explicitly. That follows also, your Honour, in my submission, from the legislative force of the direction which is given under section 499 of the Act.
That also, in my submission, informs the standard of legal reasonableness of the subject matter that was before Justice Middleton, that the level of detail and prescription of Direction 79 was such, as a binding direction given under section 499 of the Act, to inform, as Li would say, the statutory context for assessing unreasonableness on the part of the Tribunal, and therefore, when the matter is before his Honour Justice Middleton, reasonableness or unreasonableness in his Honour assessing the strength or weakness and the relevant strength or weakness of an arguable case on appeal. Unless there is any other matter, your Honour, those are the points in reply, may it please the Court.
HIS HONOUR: Thank you very much. I will reserve my decision and I propose to deliver judgment on Thursday, 8 April 2021, either in Canberra or, subject to COVID restrictions, in Brisbane. I understand there will be likely to be dispositions delivered at 9.30 am that day, so the delivery of this judgment will also be at 9.30. The parties will be advised of the listing and are welcome to attend but are not required to do so.
MR KROHN: May I just note, then, your Honour, that the applicant, if she is successful, does seek the costs, your Honour.
HIS HONOUR: Yes, thank you.
MR KROHN: May it please the Court.
HIS HONOUR: Please adjourn the Court.
AT 11.30 AM THE MATTER WAS ADJOURNED
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