MIMIA v Scargill, MIMIA v Lobo & Ors [2004] HCATrans 21 (13 February 2004)

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MIMIA v Scargill, MIMIA v Lobo & Ors [2004] HCATrans 21 (13 February 2004)

Last Updated: 18 March 2004

[2004] HCATrans 021

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M210 of 2003

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Applicant

and

ANTHONY MALCOLM SCARGILL

Respondent

Office of the Registry
Sydney No S488 of 2003

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Applicant

and

JOYCE LOBO

First Respondent

PHILIP ANDREW LOBO

Second Respondent

REENA LOBO

Third Respondent

RITISHKA LOBO

Fourth Respondent

Applications for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 FEBRUARY 2004, AT 11.11 AM

Copyright in the High Court of Australia

__________________

MR A.L. CAVANOUGH, QC: If your Honours please, I appear with my learned friend, MR C.J. HORAN, in the matter of Scargill, and I appear with my learned friend, MR G.R. KENNETT, in the matter of Lobo & Ors on behalf of the applicant Minister. (instructed by the Australian Government Solicitor)

MR J. BASTEN QC: If the Court pleases, I appear with MS L.G. De FERRARI for the respondent in the first matter of Scargill. (instructed by Victoria Legal Aid)

MR D.J. COLQUHOUN-KERR: In the second matter of Lobo and Others I appear with my learned friend, MR D.H. GODWIN, for the respondents. (instructed by Parish Patience Immigration Lawyers)

GUMMOW J: Yes, Mr Cavanough, we will hear you on both matters.

MR CAVANOUGH: Yes, if your Honours please. The question raised by these matters, we submit, is whether section 65 of the Migration Act has the effect that the correct interpretation and application of every relevant provision of the Act and regulations is a condition precedent to the validity of the administrative decision of the Delegate, the Minister or the Tribunal, as the case may be, despite section 474 of the Migration Act.

GUMMOW J: Looking at the reasons in Scargill the Federal Court said that there was a constructive failure to exercise jurisdiction, did it not?

MR CAVANOUGH: They did. They said that Mr - - -

GUMMOW J: By failure to address the proper meaning of “usually reside”.

MR CAVANOUGH: That is right. Exactly. As we put it in the Scargill matter, precisely, we would characterise the question as being – bearing in mind section 474 of the Migration Act, if the error of law found to have been committed by the Migration Review Tribunal in addressing the phrase “usually resides” in the criteria for the relevant visa amount to a jurisdictional error. I respectfully submit that is the question that arises and a more general question I have already indicated.

In Scargill the error found was to the effect that the Tribunal omitted to consider the possibility that the applicant was usually resident in Australia, as distinct from the USA or the UK, at the relevant time or times, bearing in mind the applicant needed to show that he was qualified both at the time of application and at the time of decision. He had not actually claimed that he was resident in Australia but, nonetheless, the Full Court determined that that was a matter that arose and should have been considered.

The matter turned, to some extent, on your Honour, the presiding judge’s, judgment in Gauthiez, a matter decided some 10 years ago or so in the Federal Court. However that may be, we say that the Tribunal’s decision was within the limits of its jurisdiction, but whatever mistake it might have made in determining whether the respondent was a remaining relative within the meaning of Regulation 1.15 it was not the kind of error that gave rise to an excessive jurisdiction nor a constructive failure to exercise jurisdiction, particularly in the light of section 474 of the Act.

HAYNE J: You say particularly in light of 474. Is it an essential step in your argument that 474 limits, changes, cures what otherwise would constitute jurisdictional error.

MR CAVANOUGH: Yes.

HAYNE J: That is, I fasten on 3.14 of the outline in Scargill at 47 of the application book:

s 474 is capable of ‘curing’ what might otherwise have been regarded as jurisdictional error.

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

HAYNE J: Is that an essential step in the argument in both matters.

MR CAVANOUGH: It is our preferred way of putting the argument. The area is fraught with conundrums and difficulties but we say that - - -

HAYNE J: You would seek to have it so.

GUMMOW J: Yes, that is right.

MR CAVANOUGH: We would say that is the appropriate approach and we do note in the footnote to that part of the outline that it was an observation – albeit in another footnote – in the recent case of S 20 by their Honours Justice McHugh and Justice Gummow to the effect that:

the new s 474 effects a substantive change to the powers of decision-makers –

and, indeed, the same thing was said recently in the Court of Appeal of New South Wales in the Mitchforce Case to which we referred.

That, of course, was the, and we say still is, the appropriate understanding of the effect of a privative clause generally. It does not deprive the courts of any jurisdiction. It has the effect of expanding the powers of the decision-maker where it applies and that in turn becomes a matter of construction of the privative clause, on the one hand, and the other provisions on the other hand. That seems to have been overlooked, we say, or at least bypassed by the Federal Court in these cases. The situation has been reached where the Federal Court is saying that in effect - - -

GUMMOW J: What about paragraph 76 in Plaintiff S 157 211 CLR 476 at 506.

MR CAVANOUGH: Yes.

HAYNE J: Is there not an inversion happening in the argument you are advancing? Are you not standing it on its head?

MR CAVANOUGH: No, with respect, we are not, your Honour. In a sense, it is the question that needs to be dealt with.

HAYNE J: But at 76 the point is made that:

the expression “decision[s] . . . made under this Act” must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess –

Is that right?

MR CAVANOUGH: Yes, that is right.

HAYNE J: You seek to say, as I understand it, that 474 somehow tells you something different about what is either failure to exercise or excess of jurisdiction from what otherwise would be the case.

MR CAVANOUGH: Yes, your Honour. We say that is the conventional understanding of the privative clause.

HAYNE J: Conventional, after S 157?

MR CAVANOUGH: Well, 157 does not in terms overrule Hickman or - - -

HAYNE J: No, 157 deals with the effect of this clause, 474, and it does so by reference to the expression “decision under this Act” and it says that a decision made an excess of jurisdiction or by “failure to exercise jurisdiction” is not a decision under the Act.

MR CAVANOUGH: Yes.

GUMMOW J: It is really quite simple, at the end of the day.

HAYNE J: Not nearly as Gothic as you would have it.

GUMMOW J: It is a neat Bauhaus construction and you want to start building a Gothic cathedral.

MR CAVANOUGH: The Court in S 157 said it was, in effect, applying the construction principle expressed in Hickman. It cast no doubt on that principle of construction. What that principle says is that a decision will be valid as long as it meets the three criteria and involves no - - -

HAYNE J: What Hickman says is you have to resolve the tension that otherwise exists in the Act and the resolution that was effected in 157 was the resolution of the tension in this Act. Now, what are we heading back into Hickman for - to amplify or change or modify the resolution effected in 157?

MR CAVANOUGH: In our respectful submission, S 157 did not achieve a resolution comprehensively as to every kind of case that might arise in the administration of the Migration Act and certainly not even in relation to every kind of case that might arise with respect to the grant or refusal of a visa pursuant to section 65. One would have expected to see that said in terms, if that was what S 157 did. It is not the proper reading of S 157 that any error of law in the interpretation or application of any relevant provision of the regulation necessarily involved the - - -

GUMMOW J: Of course not. Not every error of fact or law is a jurisdictional error.

MR CAVANOUGH: No, and yet that is the very thing the Federal Court is inferring and deriving from S 157. That is why we say there is a need for that to be clarified.

HAYNE J: It, as I understood it, in both of these cases, identified the particular error made as a jurisdictional error.

MR CAVANOUGH: But that was conclusion. They did so only because they said, “Well, it’s an error of law, therefore it is jurisdiction”. That was the step they took. That is what we complain of.

HAYNE J: In one – not Scargill, the other matter, Lobo, it was, and as I understand it, still is common ground that the wrong question was asked.

MR CAVANOUGH: There was a misreading, albeit slight, of the relevant regulation.

HAYNE J: The wrong question was asked.

MR CAVANOUGH: Yes, but that, in a sense, conceals the question – or it can conceal the question, too, because one could say that in respect of any error of law that the wrong question was asked. All we concede is that, yes, there was an error of law.

GUMMOW J: I do not think that is right, Mr Cavanough, what you just said. You can say that of every error of law, but I do not think that is right.

MR CAVANOUGH: I agree with your Honour that you cannot say it of every error of law, but that is the point we are trying to make. That is what the Federal Court though is saying.

GUMMOW J: Yes.

MR CAVANOUGH: There was an error of law, therefore the wrong question was asked and, therefore, there was jurisdictional error. It does not follow. We would agree with your Honour. But that is not the way the Federal Court is proceeding.

GUMMOW J: But this seems to be an independent argument to your attempt to massage 157 into some other shape.

MR CAVANOUGH: I am sorry if we have obscured it in our paperwork, your Honour, but in a sense we say it is quite clear, too.

GUMMOW J: .....but it seems to be a different tack.

MR CAVANOUGH: People see things differently, I suppose, your Honour, but really, if one reads the – perhaps the clearest example of this in the Scargill judgment comes towards the end in paragraph 37 at appeal book 34 and that - - -

GUMMOW J: Just look at 34. Now, they may have been right or wrong about the particular construction of this visa stipulation but they said:

The . . . satisfaction or lack of satisfaction on that matter was a condition precedent to a valid decision –

Now, that may or may not have been a particularly right or wrong construction of this particular visa criterion, but is not that a correct approach? It was not merely a procedural requirement. It fell into error as a result, constructive failure. That seems perfectly orthodox.

MR CAVANOUGH: Perhaps it is made even clearer in the - - -

GUMMOW J: I understand you may cavil about that earlier Federal Court case construing remaining relative, but putting that to one side for a minute and accepting their construction of it, page 34 seems orthodox.

MR CAVANOUGH: It is just that it expresses - - -

GUMMOW J: We would not normally give special leave to construe remaining relative - - -

MR CAVANOUGH: No, of course not, your Honour. We do not ask the Court to do that. Perhaps it is more illustrative if one looks at the second matter, at Lobo, appeal book 52, paragraph 62. It is a short paragraph. It follows on, I should say, from what appears at page 44 in paragraph 43:

Where the Minister misconstrues one –

that is to say, any one of, presumably, any part of any:

of the criteria prescribed in the Act or Regulations and, because of that misconstruction he considers that the criterion has not been satisfied, it is as though he did not consider the criterion at all.

HAYNE J: But it is the next sentence which I would fasten on:

For, on the face of it, he has failed to ask the question which the Act and Regulations . . . require him to ask.

Again, is that an orthodox approach to identification of jurisdictional error, the failure to ask right question?

MR CAVANOUGH: No, because of the first word of that second sentence, “For”. Their Honours are saying it will inevitably follow, therefore. In other words, there is no discrimination between errors. As I say, we would submit that – perhaps a stark illustration of the gap that has emerged between the Federal Court jurisdiction and what, in a sense, we would agree with your Honours is orthodox jurisprudence in this area is perhaps evident from the Coal Miners’ Industrial Union Case which we have included in our bundle. It is a 1960 case but it does not mean it - - -

GUMMOW J: Yes, we heard about that yesterday.

MR CAVANOUGH: Did your Honours?

GUMMOW J: Yes.

MR CAVANOUGH: There are, we say, some perfectly orthodox - - -

GUMMOW J: Someone seems to think they struck gold when they - - -

MR CAVANOUGH: It is rather a good case, if I may say so, your Honours.

HAYNE J: Some attention had been paid before yesterday.

GUMMOW J: They also seem to have thought we did not know about it.

MR CAVANOUGH: Your Honour, in S 157 it appears in one footnote to the judgment of Justice Callinan - - -

GUMMOW J: No, no.

MR CAVANOUGH: According to my search - - -

GUMMOW J: Yes. Well, there is a reference to Coldham, or a particular passage in Coldham, which has a very detailed footnote and we do not always re-burden the Law Reports by setting out footnotes to footnotes, if you see what I mean.

MR CAVANOUGH: No, but this case has not been referred to with disapproval in any subsequent case and, in my respectful submission, it is still good law. Chief Justice Dixon, as his Honour then was, at page 441 - - -

GUMMOW J: It is construing this expression “bona fide”, is it not?

MR CAVANOUGH: Perhaps the passage we would rely on most is in the judgment of Justice Menzies at page 453 – this [1960] HCA 68; 104 CLR 437 at 453. It is in the bundle we have supplied to the Court, and the following page. It is clear that his Honour was referring not only to courts but to tribunals, also because he says so at page 454. In a sense, intervention will occur where there is a manifest error of jurisdiction, where:

an inferior court –

or tribunal:

manifestly disregards limits upon its jurisdiction and undertakes to do something that is altogether outside the sphere of the jurisdiction conferred upon it –

but a mere error of law which does not have those characteristics does not take the tribunal or the court outside its jurisdiction. At 453 his Honour said:

The distinction that I draw between that case and this is that there the grant of power was construed as not extending to the formation of an unchallengeable opinion unless and until a correct interpretation had been put upon the word “anomalous”, whereas here, as I construe s. 137, the matter upon which the Court must itself form an opinion -

that is to say, the court below, the Arbitration Court –

includes the meaning of the word “lock-out”. In like fashion, it seems to me that the decision of the Privy Council in Estate and Trust Agencies (1927) Ltd. v. Singapore Improvement Trust is to be distinguished. In this case it cannot be said that the Court of Arbitration did not form an opinion upon the matters, including the possibility of a lock-out, which had to appear to it to be “reasonably likely”; the most that can be said is that it formed a wrong opinion.

Here, the most that can be said is that the tribunals formed a wrong opinion about the meaning of “usually resides” or about the meaning of “involved in the management of a business”, not that they so misunderstood their task that they travelled beyond their jurisdiction. It is an important point.

Can we draw attention, finally then, to what Justice Gyles said about these questions in Lobo itself, at first instance at page 19 of the application book, paragraphs [14] and [15]. Perhaps if we could just invite the Court to quickly scan those two paragraphs and then I will mention a couple of particular lines.

GUMMOW J: Yes.

MR CAVANOUGH: Your Honour, we would adopt what his Honour said as justifying the consideration of this Court of the questions we would seek to raise.

GUMMOW J: Yes, Mr Basten.

MR BASTEN: Your Honours, with respect, the two cases which my friend seeks to rely upon as being an appropriate subject for special do, indeed, do no more than invoke a query as to the application of principles which are well established.

The question which arose in the Full Court was whether the Tribunal had, in fact, applied itself to a key criterion prescribed by the regulations and the consideration of which was made mandatory by section 65. If it did not, it did not achieve the satisfaction which is a statutory precondition to the making of any decision pursuant to section 65.

What is a jurisdictional error for the purposes of Plaintiff S157, will not involve a bright line test. It is a test which requires evaluative judgments. This is reflected, for example, in the comments of the Chief Justice in Plaintiff S157, that the error must be manifest. There are levels of degree of scrutiny, his Honour said, and as Justice McHugh put it in Cohen’s Case in a passage my friends relied upon, the Court should be slow to find such an error. All of that is common ground, as we would understand it.

In short, almost all of the statements of principles which are identified in my friend’s submissions at 3.15 to 3.22 at pages 47 to 50 of the appeal books, may be accepted. There is little to suggest that they were not accepted by the Full Court. The only real dispute is in the application of those principles to the particular circumstances of the case. I exclude from that description the reference in paragraph 3.14 to which your Honours drew attention, the concept of “curing” a defect is a description of the ultimate effect of the reconciliation process. It is not a description of a necessary process in all cases. We, therefore, do not accept the way that 3.14 is put.

The applicant’s case is really that once the Tribunal has found the right regulation it is then free to err in any respect, even if its error demonstrates that it has manifestly misunderstood the test which is required by the Act to be applied. In a sense that gives rise to a dilemma. Either he accepts that this a judgment to be made in the application of established principle or he must challenge the established principle. We do not understand him to challenge anything that has been said by this Court. If the Full Court applied the wrong standard of scrutiny, that is a misapplication of the principle.

In effect, the Minister seeks to take issue with the role played by section 65, as we would understand it, in the reasoning of the Full Court. He seeks to invite this Court to say that all that it had meant in Plaintiff S157 was that there had to be a reconciliation between the requirements of section 474 and the individual criteria established by the regulations. One does not ignore any of the provisions of the Act in carrying out that reconciliation process. Section 65 is neither necessarily determinative, nor is it to be ignored. With respect, the Full Court did not err in seeking to apply the principles established by this Court in the manner that it did.

GUMMOW J: Yes, thank you, Mr Basten. Do you wish to add anything to that Mr Colquhoun-Kerr?

MR COLQUHOUN-KERR: Your Honours, only briefly. There are additional threshold questions in relation to the Lobo matter. In the first instance there are clear findings from each of the judges that have considered these matters, that, in fact, a policy document was followed rather than the regulations and that that policy document was materially different from the provisions which the law provided. I would simply submit that in those circumstances you do not get into any issue at all about privative clauses and the like.

At the core of the idea of the rule of law and the concept of jurisdictional error is the idea that the Executive is not above the law and whilst there is certainly nothing wrong with the Executive arm providing policy guides to administrators, if those policy documents misstate the law and the decision-maker follows policy rather than the law, it does not obviate the requirement to comply with the law. Otherwise, obviously the Executive uses its Parliament. That point is really as old as the Case of Proclamations and the Bill of Rights.

One small point I would add is that Mr Cavanough, in his submissions, suggested that a privative clause expands the jurisdiction of a decision-maker. That point was expressly rejected by the majority judgment in S157 at paragraph 91. This is an instance, too, where there seems to be a little bit of disingenuousness in relation to the submissions that are being put.

The actual draft notice of appeal suggests that the contest is on the basis that the decision-maker actually did apply the law and yet the written submissions - and I think nothing my learned friend has said in argument suggests that they are really resiling from the fact that a concession was made in the written documents that such was not, in fact, probably the case - I think is the language that is used in the written submissions.

So really I would submit also that Lobo is simply an inappropriate vehicle because to really address the issues that my learned friend has put on the draft notice and in paragraph 11 of their submissions, they would invite the Court to revisit factual issues as to whether the policy document was pursued or the law, which were found against them by the primary judge, Justice Gyles, and the Full Federal Court.

The final point I make, I did refer in an additional matter to Sinclair v Maryborough Mining Warden, not really to suggest anything other than that this is not anything other than the most basic and straightforward application of well-settled principles. The passages I might direct your Honours to are Chief Justice Barwick at page 478, paragraph 10, where his Honour said:

It is settled law that if the person having a duty to hear and consider misconceives what is his relevant duty, he will have failed
to perform that duty and may be compelled by mandamus to perform it according to law.

Mr Justice Gibbs saying in reasoning, very much analogous to that applied by the Full Court in Lobo, said:

In my judgment it appears from these reasons that in making his recommendation the warden was labouring under a misconception as to his duty, so that he did not apply himself to all the matters that the regulations required him to consider. There was thus a purported but not a real exercise of his functions and he has failed to perform his duty according to law.

Of course, your Honour, that takes you back to the passage that your Honour has referred to at paragraph 76, where the Court in Plaintiff S157 indicated that the protection extended by the privative clause did not go to validate the decisions that were not made under the Act and had no effect on purported decisions.

I do not wish to take any further time but this is, firstly, not an appropriate vehicle on the facts and, secondly, it is simply an application of extraordinarily well-settled law and made more so the fact that in this instance the findings of fact are that the decision-maker actually followed a policy document, did not apply their mind at all to the regulations as the law requires, and we would not wish, I would think, to have the rule of law substituted by the edict of the Executive. May it please.

GUMMOW J: Thank you. Yes, Mr Cavanough.

MR CAVANOUGH: What was said in S157 was that the mere satisfaction of the three Hickman provisos did not expand the jurisdictional power of the decision-maker because what was left over was the question of inviolable limitations or indispensable requirements, and there is the question. That was recognised in other places, at least in Mitchforce, the case we refer to in our submissions.

For instance, President Mason at paragraph 139 of the judgment in Mitchforce, which is still unreported but is in the folder, said that the orders with which he disagreed nonetheless:

were within power because Hungerford J’s jurisdiction under s 106 was expanded by s 179 and because his Honour’s decision-making came within the scope of the Hickman principle. This conclusion requires some elaboration.

And as I say, there is that footnote in S20 that makes it very clear that the conventional understanding, that one is not restricting the jurisdiction of the courts, one is giving additional flexibility if you like to decision-makers, is what happens with the operation of a privative clause, where it applies. In our respectful submission, the working out of that tension remains for this Court in relation to alleged errors of law in the interpretation and application of the myriad provisions of the regulations. Your Honours will be well familiar with the thickness of the books.

If it is the case that any error, however small, in relation to any one of those provisions that happens to be relevant to any particular case, necessarily will invalidate the decision of the tribunal or administrator concerned, we respectfully submit that the community is entitled to know that certainly and not just speculatively. If the Court pleases.

GUMMOW J: We will take a short adjournment.

AT 11.44 AM SHORT ADJUORNMENT

UPON RESUMING AT 11.50 AM:

GUMMOW J: First, as to the matter of Scargill, the Full Court of the Federal Court concluded that the Migration Review Tribunal made errors of law causing it to identify a wrong issue and to ask it itself the wrong question. The Minister seeks special leave to appeal to contend that those errors did not constitute jurisdictional error because section 474 of the Migration Act 1958 (Cth) “is capable of ‘curing’ what might otherwise have been regarded as jurisdictional error”. I quote from paragraph 3.14 of the written submissions.

The contention that the Minister would seek to make about the operation of section 474 is inconsistent with the Court’s decision in Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476. As was said in the joint reasons in that case at page 506, paragraph 76:

Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression “decision[s] . . . made under this Act” must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act.

It follows that section 474 does not have the effect for which the Minister would contend if special leave to appeal were to be granted. The actual decision of the Full Court of the Federal Court is not attended by sufficient doubt to warrant a grant of special leave. Special leave is refused with costs.

Coming to the matter of Lobo, the Full Court of the Federal Court concluded, and the Minister does not dispute, that the Migration Review Tribunal applied a test other than that prescribed by the applicable regulation. The Full Court’s conclusions that the Tribunal therefore fell into jurisdictional error and that it followed from this Court’s decision in Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 that the privative provision in section 474 of the Migration Act 1958 (Cth) was accordingly not engaged are not attended by doubt. Special leave to appeal is refused with costs in that matter also.

We will adjourn to reconstitute.

AT 11.53 AM THE MATTERS WERE CONCLUDED