Evans v MIMIA & Anor [2004] HCATrans 346 (10 September 2004)

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Evans v MIMIA & Anor [2004] HCATrans 346 (10 September 2004)

Last Updated: 16 September 2004

[2004] HCATrans 346

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M313 of 2003

B e t w e e n -

MOHAMMED IGHASAAN EVANS

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

THE COMMONWEALTH OF AUSTRALIA

Second Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 SEPTEMBER 2004, AT 10.56 AM

Copyright in the High Court of Australia

MR T.V. HURLEY: May it please the Court, I appear for the applicant. (instructed by Mark Andrews & Associates)

MR P.R.D. GRAY: May it please the Court, I appear for the respondents. (instructed by Australian Government Solicitor)

GUMMOW J: Yes, Mr Hurley.

MR HURLEY: Your Honour, this application was brought in relation to the decision of the Full Court. That is found, amongst other places, in the application book, beginning at - - -

GUMMOW J: Now, these were separate questions, were they not?

MR HURLEY: Yes, your Honour, a preliminary separate question under Order 29.

GUMMOW J: So it produced interlocutory orders.

MR HURLEY: They are interlocutory orders, your Honour. The point, we say, that arises is – section 46(1)(b) has been said as giving the court the blue pencil power – whether, in the circumstances of this matter, this case application of that provision leads to it being used as a scalpel, as Justices Merkel and Kenny would see, or as an artistic brush to create something, as Justice Gray saw below and as Justice Lindgren has agreed in the matter of a separate proceeding raising the same question, Wong.

HAYNE J: Now, when it comes to final relief being argued, in particular, the injunction you seek, the Act as it stands at that time will be engaged, will it not?

MR HURLEY: With respect, no, not entirely, your Honour. There will be two aspects to it.

HAYNE J: Why? Insofar as you seek injunction to restrain the Minister from considering the decision to cancel without telling you of the information concerned, why is that not a question which will be decided according to the then state of the law?

MR HURLEY: Your Honour, it will be decided according to the then state of the law - - -

HAYNE J: If that is so, why is this question still alive in this litigation?

MR HURLEY: Because, your Honour, my client has been invited to make submissions as to why his visa should not be cancelled.

HAYNE J: I understand that, and you seek injunction to restrain the Minister dealing with the cancellation without, in effect, giving you notice of the information said to come from one of the investigative bodies. Is that right? That is the final relief you sought.

MR HURLEY: Yes, your Honour, but in relation to the past decision. An earlier decision has been made to cancel the visa and my client seeks to respond to the next decision, to know what it was that moved the Minister in the last decision. The Minister replies by saying that the information is protected by section 503A. We answer that by saying, it is not protected, the past information is not protected, because at the point of time it was given to the authorised migration officer, there were no gazetted agencies in existence. That led to the preliminary question, and therefore, your Honour, it remains a live question.

If the Minister moves to make a decision in the future, he would make that decision on the law as enforced at the time, but my client simply seeks to address whatever it was that was before the Minister in the previous decision which, in our submission, and the point that we seek to agitate here, was not the subject and did not emanate from a gazetted agency. So it is a very pertinent question, because it is the only way my client will be able to respond at all and have any rights to natural justice that section 501(2) and 501(5) of the Act would otherwise see him have. Your Honour, it does remain a live issue, so that he can respond to the notice he has been given by addressing the concerns that previously moved the Minister.

GUMMOW J: I am not sure I understand that.

HAYNE J: I am perhaps making assumptions about the nature of the process. What is the basic process that was before the Federal Court out of which these two separate questions were shelled?

MR HURLEY: An application, your Honour, by my client, seeking two things. It sought damages for past detention on the basis that that was unlawful; it sought an injunction to restrain the Minister proceeding to further consider cancelling the visa until the exhibit that is Attachment G was delivered to the applicant so that he could make meaningful submissions.

HAYNE J: Injunction has not yet gone, is that right?

MR HURLEY: No, your Honour, the injunction has not gone - - -

GUMMOW J: There was an agreed arrangement.

MR HURLEY: There was an agreed arrangement. It is frozen, your Honour.

HAYNE J: Thus the final relief which you seek is an injunction to restrain consideration without giving the material, is that right?

MR HURLEY: Yes, your Honour.

HAYNE J: When it comes time to decide whether an injunction should go, what state of the Act will be considered: the Act as it then stands at the time of judgment or the Act as it stood in some historical form?

MR HURLEY: Your Honour, it would be the Act as it stood when Attachment G was delivered to the Minister some time prior to 31 July 2001.

GUMMOW J: Why?

MR HURLEY: Because in the application book at page 97, your Honour will see the text of section 503A, which provides that:

(1) If information is communicated to an authorised migration officer by a gazetted agency –

on certain conditions –

(a) the officer must not divulge or communicate the information –

Now, your Honour, we submit that the status of Attachment G is established when the information is communicated.

HAYNE J: Why? Why does the Act not speak at the point when the court is making its order and relevantly say, on the construction of the Act, that the relevant authority cannot divulge this? Why does the court shut its eyes to the change in the legislation at the time of making its final orders?

GUMMOW J: The section says, “must not divulge”.

MR HURLEY: Yes, your Honour:

If information is communicated . . . by a gazetted agency –

The information that is in Attachment G, we say, whenever the question comes to be determined – the provision in its current form, your Honour, is at the Court book at page 101, and that subsection has not altered.

HAYNE J: But the gazettal has. There is now a gazettal which is rather more specific than the earlier one is, if I can describe it in those.....neutral terms.

MR HURLEY: Yes, your Honour, but we - - -

GUMMOW J: See, “is communicated” in the first line may mean “has been at any time”.

MR HURLEY: Well, your Honour, it is in the present tense.

GUMMOW J: I realise that. It is one of those drafting ellipses, really.

MR HURLEY: Your Honour, this whole litigation relates to a drafting ellipsis.

GUMMOW J: I understand that.

HAYNE J: “Is in a state of having been communicated” maybe. Sounds like an old Latin class, does it not, Mr Hurley?

MR HURLEY: Your Honour, whenever the question of the status of Attachment G is considered, we submit, its status is determined at the point in time prior to the Minister’s last decision, when it was given to the Minister. It was either given to him by a gazetted agency on that at that time, or it was not. We rely on Justices Gray below and Lindgren in the other matter to submit that a serious question arises that there was no gazetted agency at any time prior to 31 July 2001 when the Minister made the first decision.

The subsequent amendments, your Honour, in our submission, do not alter that situation at all. In our book of authorities, at the first tab, your Honours have the amending legislation of 2003. If your Honours go to pages 14 and 15 of that, this is the legislation that amended section 503A by inserting provisions protecting the Minister from having to divulge anything and introduced section 503B, which authorises the Federal Magistrates Court and the Federal Court to make orders enabling certain information to be released, section 503C, which authorises interim orders in the process, and 503D, which is set out at page 14 of this amending legislation, which extends to protect the agency’s details. Now, the unusual aspect of this question in this proceeding is that the agency’s details are known because of the course of the litigation, but - - -

HAYNE J: You have this provision in items 7 and 8 of the amendments about operation, which seem intended to give it effect no matter whether there are proceedings on foot or not.

MR HURLEY: Yes, your Honour, those are proceedings, but 503B and 503C are proceedings which introduce a regime or structure where the Minister can approach the court to seek a mechanism where he or she can give information to the court and the court would only give it to certain people in that proceeding. It is neutral as to the operation of section 503A, which is the provision which establishes whether or not Attachment G was protected information.

HAYNE J: Mr Hurley, I should say this to you. The bottom line seems to me at the moment to be this, that this is a classically interlocutory case where subsequent legislative events have overtaken the moving caravan. That is the difficulty you have to address. How do you deal with it?

MR HURLEY: Because, your Honour, the status of the document did not change, in our submission. Section 503A(1) has never changed and the status the document had when the Minister first looked at it before or on 31 July has not changed. We say that on that date it was not protected information and it has not become such since. Your Honour, it is interlocutory proceedings, but they have a profound effect on my client, because if the Minister does make another decision and relies on acquired information that he receives after 15 July 2003 when the goal post in the legislation changes, it does not deny the ability of my client to at least respond to what went before.

The Federal Court is divided on this question, your Honour. Justices Gray and Tamberlin support my client’s position and Justices Kenny and Merkel, for different reasons, we say, do not. But the effect on my client, your Honour, is that this is the only way that he will have any hope of responding to whatever these allegations are which Parliament intended by the provisions in sections 501(2) and (5). So it is not a situation where his ability has been directly removed by statute.

The new schema that has been introduced is directed to another point; it is directed to equipping the Federal Court and the Federal Magistrates Court with a mechanism to receive information if the Minister thinks that that is appropriate and to give it out to certain people, but not the applicant. It is not intended to alter the status of what went before. It is not intended to alter the status of documents that were not protected information before 15 July 2003, when the legislation commenced, let alone when the Minister considered it on 31 July 2001. Does that answer your Honour’s question? That is the answer - - -

HAYNE J: That is your answer, Mr Hurley.

MR HURLEY: That is my reply, if your Honours please. I am sorry, your Honour. It is an interlocutory proceeding, but if my client is denied the right to agitate that Justices Gray and Tamberlin were correct, this is the only chance he has to respond to whatever it is that was in Attachment G in the face of a multitude of gazettals and alterations since, which would seem to indicate that Parliament, as one of the judges observes, seems to have accepted that there was some force in the submissions that were made.

Your Honour, we submit that the question of the construction and operation of the blue pencil rule, as to whether it is a rule which simply enables the excision of material, or whether, in fact, as it has been used here in a way to create a specification of agencies which was not intended by the Parliament nor the Minister, that of the entire galaxy of law enforcement agencies which the Minister contemplated would be international, the only uneven and uncertain – the wobbly pencil, the moving finger, writes in an uneven way the class that was required to be specified by the former section 503A(9), the definition of “gazetted agency”, which is at the application book at page 99, that Parliament required to be a specification.

All the judges, bar Justice Downes, accepted that no agency was specified in the notice on its plain reading. We submit that they all, bar Justice Downes, accepted that there was no specification, having applied section 46(2), and we submit that the division of the court thereafter as to whether section 46(1)(b) authorised some excision of material to define a class so the instrument did not exceed power begs the question as to whether the failure to specify in the first place means, as Justices Gray and Lindgren conclude, there was never a specification of anything within power, it was a nullity and section 46(1)(b) had no task to do.

Your Honour, severance is, as the Court has observed in my learned friend’s submission, the decision of Harrington v Lowe, a notoriously difficult area, but the consequences for my client result in this situation in a great practical injustice. He is not able otherwise to respond and avail himself of the opportunity to reply that Parliament would appear to have intended in section 501(2) and (5).

Your Honour, I do not want to repeat myself, but we submit the operation of the interpretation provisions themselves are a matter of some importance. The matter is of great practical importance. It effectively determines, adversely to my client, his entitlement to respond and to respond as he has been invited to do by the notice given to him on 29 April 2002. Those are the submissions, your Honour, on behalf of the applicant.

GUMMOW J: We do not need to call on you, Mr Gray.

In the action in the Federal Court the applicant seeks a final injunction against the Minister. That trial has yet to take place. Separate questions were determined in advance of trial by Justice Merkel. Since that happened there has appeared an instrument dated 14 August 2003 being a notice under section 503A of the Migration Act. The notice appears as Gazette No 35, 3 September 2003. The appearance of that notice would raise at trial a question of the construction of section 503A. We are not satisfied that there are sufficient prospects of success in the construction of section 503A that the applicant now would have to advance to warrant a grant of special leave. Accordingly, special leave is refused with costs.

AT 11.15 AM THE MATTER WAS CONCLUDED