Palme, Ex parte - Re MIMIA S258/2002 [2002] HCATrans 539 (28 October 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S258 of 2002

In the matter of -

An application for Writs of Prohibition and Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Ex parte -

THOMAS PALME

Applicant/Prosecutor

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 28 OCTOBER 2002, AT 9.44 AM

Copyright in the High Court of Australia

MR P.L.G. BRERETON, SC: May it please your Honour, I appear with my learned friend, MR D.P.M. ASH, for the applicant. (instructed by Christopher Levingston & Associates)

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

HER HONOUR: I have not read all the affidavits. I have read the affidavit but the affidavit I read was faxed to me in Perth and I have not studied the annexures, so you should bear that in mind in the way you address your submissions.

MR BRERETON: I take it your Honour has had an opportunity to read the submissions of both parties?

HER HONOUR: Yes, including the amended submissions.

MR BRERETON: What I have taken the opportunity of doing, your Honour, is to prepare to focus my mind initially - but there is an ulterior motive for it to which I will come - to prepare what I wanted to say orally in response to my learned friend's submissions and reduce that to writing. Could I hand that to your Honour.

HER HONOUR: Thank you.

MR BRERETON: The motives for this were initially to focus my mind but also to save time. Could I, with deep embarrassment, mention this, and it should not influence the Court in any way except perhaps to let me slide away at about a quarter past 10. I find myself part heard in an appeal in another court which I have asked to wait until 10.30 at the other end of town.

HER HONOUR: Do not waste time telling me about it but I will do my best.

MR BRERETON: If I have not finished, Mr Ash is here to deal with the reply. Could I invite your Honour to read the submissions in reply first and then I will with any questions that your Honour has.

HER HONOUR: Perhaps I will run through them with you. Ground 1 is not a ground for relief.

MR BRERETON: We accept it is not an independent ground. It is something which we will have to overcome if we get up on it.

HER HONOUR: So the constitutional ground, I think everybody agrees, has to stay in there until - - -

MR BRERETON: Until Dang is decided.

HER HONOUR: Yes.

MR BRERETON: So what I then go on to do is address grounds 2, 3 and 4.

HER HONOUR: It seems to me that ground 3 is the one that is critical to your application in this sense. Much of the content of, it would seem to me, the adequate hearing and procedural fairness question may depend on the nature of the discretion.

MR BRERETON: I accept that, your Honour. If one looks at section 501, plainly on its face the discretion is one which is enlivened by the failure of the character test and then it is a discretion to cancel. The Minister was told - - -

HER HONOUR: It is a discretionary power to cancel.

MR BRERETON: Yes.

HER HONOUR: And the Minister was told that he had to consider whether to cancel.

MR BRERETON: Yes, and more than that, the Minister was told that in effect he had to consider whether to exercise his discretion to permit the applicant to stay, as distinct from - as if it were that if the Minister did nothing, the visa would be cancelled, whereas in fact the position is the reverse: if the Minister did nothing, the visa would stay in place. That appears in one passage in the reasons.

While that is an important aspect of it, in our submission, the procedural fairness and the reasons aspect are also very important for this reason. At the outset the notice of cancellation said, "It has been decided that the Minister will decide this case personally". The effect of that was as a pre-emptive strike to exclude merits review. If a delegate decided it, there would have been an appeal to the AAT. Because the Minister decided at the time of giving the original notice that he would decide the case himself, that excluded merits review.

That decision colours the Minister's duty to afford natural justice, and there is no dispute that the Minister was bound to afford the applicant a hearing of some sort. What in fact happened was that, as is usual in these cases, a brief went to the Minister annexing all the relevant evidence. That brief in effect contained the departmental submissions. If I can take your Honour to the brief which is attached to Mr Prince's affidavit, the critical passages are at page 17. This first part under the heading "Grounds" commencing at paragraph [6] is not controversial because it is clear he did not pass the character test. In effect, in paragraph [11] we find the department's submission to the Minister on that aspect and then in paragraph [13] we find the department's submission on the reasonable suspicion.

HER HONOUR: It is the discretion issue that is - - -

MR BRERETON: We then come to the discretion issue which is critical. At paragraph [27] we find the departmental submission that it is open to find that conduct against the community was serious. At [41], a submission which seems to favour Mr Palme that he "is at a low risk of recidivism." At [45], a submission that it is open to find "that the Australian community may expect that Mr Palme should be removed from Australia." Mr Palme may well have wished to say in response to that, for example, "It's open for you to find that someone who's been here since he was a child for 30 years would be regarded by the Australian community as their own problem and not someone who ought to be removed". So that is simply an illustration of how Mr Palme may have wished to answer these submissions.

At [52] there is another submission simply that it "would have a detrimental effect on his children." At [57] there is a submission that there would be hardship on Mr Zimmermann and at [58] a submission that his parents might suffer "significant hardship". The critical matter which comes out of that adverse to Mr Palme is the submission that the offence was serious and, in particular, that the Australian community would expect him to be removed. Mr Palme had no chance to answer those submissions. The Minister did not have to decide this case personally. He could have left it to a delegate and then there would have been an opportunity for merits review. Once he decided to determine it personally, natural justice required him to allow Mr Palme to answer the submissions that were made to the Minister by the department rather than just to receive and act on the department's submissions.

The next point is the reasons point. In the relatively recent Federal Court decision referred to in our written submissions of W157/00A v The Minister, the Federal Court held that a document such as this brief or issues document - - -

HER HONOUR: Yes, but how does that bear on your entitlement to relief under 75(v)?

MR BRERETON: In two ways, your Honour. Where there is a statutory duty to give reasons, that duty forms part of the affected person's entitlement to procedural fairness. The effect of what Justice Deane said in Osmond v Public Service Board was that where the relevant provisions of a statute do impose an obligation to give reasons, the requirement for reasons becomes part of the content of the rules of procedural fairness in that respect. That is also consistent with the view that has been taken in England and in Canada where it has been held that in the particular circumstances of a case there is a duty to give reasons. Those matters are referred to in paragraphs 12.1 and 12.2 of the submissions in reply which I have handed up.

The second way in which it has that effect is that, as your Honour said in Re Patterson; Ex parte Taylor, there can be jurisdictional error by reason of a decision-maker misunderstanding the nature of the jurisdiction, applying a wrong and inadmissible test, misconceiving his or her duty, failing to apply himself to the question which the law prescribes. In this case there was a statutory obligation to give reasons. Part of the very function of the decision-maker in conjunction with making the decision was to give reasons. The reason for imposing that obligation was to ensure that the decision was principled and rational as distinct from arbitrary. If a decision-maker who is bound to give reasons does not do so, the decision-maker has not discharged his or her function as such and has not properly and duly exercised the decision-maker's jurisdiction.

So for two reasons, the failure to give reasons justifies relief under section 75, first because where a statutory duty is imposed, that makes it part of the rules of procedural fairness. The second reason is that giving reasons is part of the jurisdictional function of the decision-maker who has not properly exercised his or her jurisdiction unless he does so. That is how reasons get us there, but even if reasons do not of themselves get us there, the fact that this brief went to the Minister, he having decided to decide the case personally without an opportunity to respond to the submissions made in it, amounts to a denial of procedural fairness and that get us under section 75(v) in any event.

HER HONOUR: I suppose if you say you get there, on ordinary procedural fairness one might as well leave the other ground in for you to argue.

MR BRERETON: Exactly, your Honour. That in a nutshell is what I want to say. The rest is really said in the written material.

HER HONOUR: Thank you. Yes, Mr Kennett.

MR KENNETT: Your Honour, three issues arise between us. First, the nature of the discretion the Minister was exercising; secondly, the issue of procedural fairness - - -

HER HONOUR: Do you not concede there is an arguable case on the nature of the discretion, a jurisdictional error?

MR KENNETT: In short, your Honour, no.

HER HONOUR: The Minister seems to have had it put to him the wrong way round.

MR KENNETT: The Minister has had it put to him in paragraph [14] of the submission to him, which is on page 18 of the Prince affidavit, that he needs to decide - - -

HER HONOUR:

you must . . . decide whether Mr Palme should be permitted to remain in Australia.

It is almost as though the question whether he should be permitted to remain in Australia, whereas the question was: should he be deported? It is the wrong way round, is it not?

MR KENNETT: But they are two sides of the same coin, in my submission. If it goes one way it is cancelled; if it goes the other way it is not.

HER HONOUR: They may in a sense be two sides of the one coin but there may be different reasoning processes involved if you ask the question, "Should I cancel, should I deport this man?" The implied onus is to identify features that require deportation. "Should I let him stay?" The implied onus is to identify features that would entitle him to stay.

MR KENNETT: Your Honour, other than that sentence, there is nothing in the minute.

HER HONOUR: Or, unfortunately, the decision.

MR KENNETT: I will come to that in a moment, your Honour - which indicates an onus of proof one way or the other. The actual decision, or at least the form of - - -

HER HONOUR: I am not worried about the onus. The question is: is it not arguable that that is jurisdictional error in the sense of misunderstanding the very nature of the jurisdiction or the power that was conferred?

MR KENNETT: Your Honour, there are two answers to that. The first one, which I have nearly completed, I think, is the Minister simply did not approach things the wrong way round, as it were. At page 31 of the Prince affidavit is the document that the Minister signed to signify his decision. He has initially, as your Honour will see, crossed everything out and then written "Stet" next to option (d) and signed below it to indicate his decision in exactly the terms of the subsection. He has decided to exercise his discretion to cancel the visa. More generally, your Honour, I have put it in writing. It is a discretionary power, as your Honour put it, to cancel the visa and, in my submission, there would be no error if the Minister approached his discretion on the basis of a prima facie position or a general rule subject to the circumstances of each case that as a general rule somebody who had committed a crime of this kind ought have their visa cancelled. If the submission and the Minister's decision are read in the way - - -

HER HONOUR: That is an interesting question whether there could be a general rule in the case where the Minister is exercising the discretion personally. I know one has said that decision-makers can operate in accordance with a general rule providing each matter is looked at individually and one might well find that right in the case of the delegate, but it is an interesting question in itself, I would have thought, whether the Minister can have the same approach when there is no review.

MR KENNETT: The Minister does not have guidelines imposed on him in the way the delegate would.

HER HONOUR: Exactly, yes. So it would be a very interesting question, that.

MR KENNETT: In my position I fear I should not raise interesting questions. Every person exercising a discretion, consciously or not, approaches it from some initial point of view. All that the Minister has done, if anything, in this case is to approach it from the point of view that somebody who has committed a serious crime of this kind needs to convince him that his or her visa should not be cancelled. I think that is all I can say about that aspect of the case.

On the procedural fairness question, the overriding requirement is that the procedure be one which as a whole is fair. In writing I have cited South Australia v O'Shea for that proposition and I do not want to take your Honour to that. Another point to bear in mind is that in the case of a decision made by a Minister, it will almost necessarily be the case that the Minister relies to a great degree on information gathering and advice by his or her officers. That is recognised in cases such as Carltona, which I do not think has been cited to your Honour, but also in Arlidge's Case which is on my list and which my learned friend has referred to in his reply.

In this case the applicant, it appears from the documents, had been given the ministerial discretion which told him what factors would be considered. He had spoken to a departmental official. The notes of that interview went before the Minister. He had put in his own written submissions, including material as to his character. He had an opportunity to address and in substance had addressed each of the matters which were to be considered by the Minister.

My learned friend makes the point that the applicant might have wanted to say something about the expectations of the community. He had said something at least about the regard in which he was held by members of the community and, more to the point, he had had notice that that issue was one thing which the Minister would be considering. The process of decision making by the Minister was in the end not an adversarial one. The submission of the department was not a submission of an advocate that the applicant necessarily needed to have a chance to respond to. It was a report to the Minister, or at least it was in the nature of a report, which outlines the factors either way. It does not even make, your Honour will notice, a recommendation to the Minister one way or the other.

There is one other point raised by my friend in writing this morning as to the way in which the submission dealt with the interests of the children. This is at paragraph 8 of my learned friend's reply submissions this morning. He has properly pointed out that the issue of the interests of the children was referred to in the document under the heading of "Primary Considerations" and Article 3.1 of the Convention was set out. He then makes some points about what the document said.

In answer to his point (1), the document did say that the children would suffer some detriment if the applicant's visa was cancelled. In answer to point (2), the heading of that section of the document was "the Best Interests of the Children" and, as my friend says, the terms of the article of the Convention were set out. Point (3), it does not say that the children are Australian citizens but that is not fatal, in my submission. It does at least indicate where the interests of the children lie and the fact that those interests are a primary consideration. My friend also says it:

does not indicate how other factors outweigh the primary consideration of the best interests -

With respect, that was precisely what the Minister had to decide and it appears that the Minister has done so.

Your Honour, that is all I wish to say about procedural fairness. The last issue is the question of reasons. I have dealt with that in writing.

HER HONOUR: It is an odd provision, is it not? "The Minister is required to". He has not. Perhaps the remedy is that prohibition issue until such time as he does so that one can then ascertain - I do not know. It is very odd, is it not? He "is required to".

MR KENNETT: The important provision in this connection is section 501G(4) which makes it as clear as it could possibly be that Parliament did not envisage a failure to give reasons as going to the validity.

HER HONOUR: No, but it may go to what can happen in the meantime.

MR KENNETT: It may, your Honour.

HER HONOUR: I mean, it is a very strange - in this Act nothing of course is strange, but subject to that requirement, when one puts that aside, "does not affect the validity".

MR KENNETT: It may be, your Honour, that some remedies would lie. The important point is that a remedy which - - -

HER HONOUR: You see, it is a very interesting section. What is the sanction? Is it a law even? Is that a law? If the Minister is required to do something and there is no sanction for not doing it, it is just a waste of paper, is it not?

MR KENNETT: There may be a sanction, your Honour.

HER HONOUR: What is the sanction?

MR KENNETT: The sanction may be - I do not want to give my friend ideas, but the Minister - conceivably an injunction might lie to require the Minister to give reasons or mandamus to require him to perform his duty to give reasons if he has not done so. Conceivably an injunction might lie to prevent the decision being acted upon, even though prohibition would not. My point is that the constitutional writs which depend on jurisdictional error cannot lie.

HER HONOUR: I take it there is no risk of this man being dealt with prior to - if an order nisi were to issue, there would be no question about that. He would be - yes.

MR KENNETT: Unless your Honour had any other questions, that is all I wish to say.

HER HONOUR: Mr Brereton, I am in some doubt about the reasons matter but I would be minded to grant an order nisi on grounds of mistaking the discretion and denial of natural justice. It seems to me in those circumstances that it is not going to take much further to argue what you need to argue in relation to the reasons. I would therefore grant the order nisi subject to this: neither party is to assume by reason of the grant of the order nisi on constitutional grounds that that issue is open for reargument. That will be decided by Dey and Dang and both sides are required to proceed accordingly.

MR BRERETON: That is understood, your Honour. Can I just raise this matter. The applicant is due to be released from custody on 8 December this year. His minimum term expires. We have not at this stage obviously made a formal application for expedition, but might we request that - - -

HER HONOUR: What is it thought that will happen? Is it thought that anything will happen other than that he will be released on 8 December and remain in the community until the matter is decided?

MR BRERETON: Yes, your Honour, he will immediately transfer from being in penal custody to being in immigration detention and will probably be left languishing in the very same gaol.

HER HONOUR: Is that right, Mr Kennett? This is where the reasons seem to me to become critical.

MR KENNETT: Your Honour, that may be right. As I understand it, he can apply for a bridging visa at the end of his sentence.

MR BRERETON: No, only a protection visa.

HER HONOUR: What I shall do is this. Mr Brereton has to leave. You say 8 December?

MR BRERETON: Yes, your Honour.

HER HONOUR: I will leave it to the parties to discuss this matter in the next 10 days and if it cannot be resolved, I will hear Mr Brereton as to the impact of 501G in relation to what should happen to Mr Palme. Do you follow what I mean by that?

MR BRERETON: Yes, your Honour. What I was really raising with your Honour was whether such request could be made of the Registry as might be appropriate to give the matter such expedition as it can.

HER HONOUR: There are dozens of these matters. When I say dozens - everybody. The need for expedition would not exist, would it, if we could be sure that this man would not be put in immigration detention?

MR BRERETON: Yes, your Honour. We will discuss that over the next week and come back in 10 days if we have to.

HER HONOUR: That is the simple point, is it not? What would happen if I were to stay any action on the decision, which has also occurred in relation to 75(v) remedies before? You say it is the operation of the Act that comes into play?

MR BRERETON: My concern is it is the operation of the Act which requires him to be kept in custody. Your Honour, why do not my learned friend and I discuss that over the next week and if we need to make a further application, we shall.

HER HONOUR: We will make it 9.30 on 11 November. I will relist the matter on 11 November to see how matters are proceeding. Otherwise there will be a grant of an order nisi and I will certify for the attendance of counsel. If need be, Mr Brereton can make such further application as he requires on 11 November. If you want the matter to be expedited, then I suggest you get the application books prepared very quickly. Your place in the list will ordinarily depend on that anyway. I presume the Commonwealth will co-operate in that regard.

MR BRERETON: Thank you very much indeed, your Honour. May it please the Court.

AT 10.17 AM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 11 NOVEMBER 2002