Watson v MIMIA [2006] HCATrans 138 (10 March 2006)

--

Watson v MIMIA [2006] HCATrans 138 (10 March 2006)

Last Updated: 22 March 2006

[2006] HCATrans 138

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B83 of 2005

B e t w e e n -

IRWIN WATSON

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 MARCH 2006, AT 10.21 AM

Copyright in the High Court of Australia

MR J.A. LOGAN, SC: May it please the Court, I appear with my learned friend, MR H. SCOTT-MACKENZIE, for the applicant. (instructed by Rouyanian & Company)

MR R.M. DERRINGTON, SC: May it please the Court, I appear with my learned friend, MR P.G. BICKFORD, for the respondent. (instructed by Clayton Utz)

GUMMOW J: Thank you.

MR LOGAN: If the Court pleases, section 33(1) of the Acts Interpretation Act contains a statutory presumption - - -

GUMMOW J: Before we get into the mysteries of section 33, is not your client at risk of a further application of the power by the Minister in the light of this conviction on 19 May 2002?

MR LOGAN: There would be, if the applicant’s argument is correct, an ability to exercise the power from time to time as occasion required and the conviction to which your Honour refers may supply an occasion.

GUMMOW J: Yes.

MR LOGAN: It has not, but it would be a logical corollary of the argument.

KIRBY J: Presumably it has not because the Minister is taking the point that she has already probably exercised a power which never disappeared and, therefore, that she does not need to re-exercise it but it raises the concern that the issue is really moot in practical terms because you might win on the issues of law that you are arguing but it is really a bit of a waste of the Court’s time because there is this other source on which the Minister could, and likely would, exercise the power to remove your client. Do you understand the problem?

MR LOGAN: Yes.

KIRBY J: It is a question of deploying our time effectively.

MR LOGAN: The applicant has a redeeming virtue, perhaps, of a Scotch heritage but he would wish to remain in Australia and to have the opportunity at least of making a submission were the Minister disposed to exercise a discretionary power in the future.

KIRBY J: That has not persuaded the Minister in the past.

MR LOGAN: There is a new Minister.

KIRBY J: You know my view on this matter, Mr Logan, but the law has been stated in the Nolan terms again and, therefore, the power to remove your client at the moment whilst that law still prevails is clear. I suppose you are entitled to say, “Let’s deal with these matters as they come. The Minister hasn’t exercised the power under the new matter and therefore we should see whether we can succeed and then we’ll face that Rubicon if and when we come to it”. Is that it?

MR LOGAN: With respect, yes, one step at a time and the Minister can run the gauntlet.

GUMMOW J: You want to achieve a result where we say that the Minister has revoked, do you not?

MR LOGAN: That is right.

GUMMOW J: Thereby, no doubt, activating her to move.

MR LOGAN: She may or she may not. If she does then she will run the gauntlet of the judicial power of the Commonwealth in an appropriate case, perhaps in this place, again.

GUMMOW J: Wait a minute, what does that mean?

MR LOGAN: What it means, with respect, is that one step at a time. If the decision is flawed in the way the applicant contends then he is, in our submission, entitled to a grant of special leave. If it transpires that the Minister later is disposed to move in a particular way, that is literally another matter.

GUMMOW J: He is not entitled to a grant of special leave, I am afraid.

KIRBY J: You want to run your course now and if you have to you will consider whether you have another basis in the future but you think you have a very good basis now and there are some differences in the reasoning in the Full Court of the Federal Court here. I think you should just use your time to argue your application, speaking for myself.

GUMMOW J: Perhaps you had better get on with the section 33 point. We took you off it.

MR LOGAN: Your Honours, the statutory provision concerned contains a presumption and it is a presumption, in our submission, which is designed to overcome what your Honour Justice Gummow described once as an inconvenient common law doctrine of uncertain extent. Its presumption, which Justice Dowsett observed in the court below, has a pervasive effect and, as your Honour Justice Kirby has perhaps observed already, there is no consensus either in the judgments below, in our submission, or generally in the Federal Court, as to the nature and extent of that statutory presumption’s meaning. Our submission is in that pervasiveness and in the absence of consensus lies one reason why there ought to be a grant of special leave in this case.

KIRBY J: How long did your client live in Scotland? It was only a matter of months, was it not?

MR LOGAN: Yes, I was just coming to that. He was born there on 27 March and there is a difference in the evidence below as to whether it was April or July 1973, the same year that he came to Australia. On either view he was a babe in arms.

GUMMOW J: That will not tell us anything about section 33. It says:

Where an Act confers a power or imposes a duty - - -

and this confers a power, I suppose:

then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires.

Where do you get out of that a power to revoke the consequence of the exercise of the power? It does not talk about it.

MR LOGAN: We get out of it inherently in the ability to exercise a power “from time to time”. It must carry with it, in our submission, the ability to reconsider and, therefore, revoke that which has gone before in exactly the same way, in our respectful submission, as your Honour Justice Gummow observed in Kurtovic.

GUMMOW J: What did Justice Hely say about this in the Full Court?

MR LOGAN: Justice Hely, in our submission, highlighted what he conceived to be a narrow view firstly, from Dutton’s Case, Justice Branson. He then acknowledged there was a broader view by reference to your Honour’s judgment in Kurtovic but, in the end, in our submission, he seems to have opted – and we refer to paragraph 23 in his reasons – for a narrow view of the provision. It is on page 25 of the application book.

KIRBY J: I realise this is very important for your client and I have some sympathy for your client having lived all his life, except for two months, in Australia but what is the general significance of this case? These are very peculiar fact circumstances which really arise out of the history of the uncertainty as to the operating constitutional norm so it is not a case that really concerns practice in this area.

MR LOGAN: Quite. What the peculiarity of the circumstances highlights though, in our submission, is the question of the application of a very pervasive statutory presumption indeed, which is section 33(1), and then whether or not, in relation to a discretionary power, that is indeed the subject of a contrary statutory intention. Our submission is that one cannot measure whether there is a contrary statutory intention without an understanding of what the fullness, or otherwise, of that presumption is. Hence, the submission, given the pervasiveness of the provision that it truly is a point of general application, it is just that it is raised in singular facts.

We do not wish to make any further submission in relation to section 33(1) other than one reason why, in our submission, it exists is that times change, people move on, governments change, government policies change. Those were matters which Justice Gummow highlighted, in our respectful submission, by reference to the Laker Airways Case.

KIRBY J: Ministers change too. Some ministers may have more generous views about these matters than others.

MR LOGAN: Indeed, that is right, with respect, so that supplies in itself a reason why one can see practical utility in a “from time to time” power relative to the common law position.

In terms of the question as to whether section 501(2) evinces a statutory contrary intention or, for that matter, the statutory scheme as a whole, there was a difference of views in the court below as to that. Justice Dowsett, in our submission, considered the package, as it were, that came from the legislation concerning the strengthening of the character test, so-called, did not provide the contrary intention; the other two members of the court, clearly enough, did conceive there to be a contrary intention in that regard.

Justice Dowsett’s reason, in our submission, flowed from, with respect, a misconception as to the nature of the power that was being exercised. The power that was being exercised originally was a discretionary power under section 501(2). It was not one of those which flowed from the existence of a jurisdictional fact constituted by a state of ministerial satisfaction so that the apprehended basis, in our submission, for a contrary intention on his part was, with respect, misconceived. In relation to the other apprehended contrary intentions, there is every reason, in our submission, to conceive of why it is that a personal ministerial power, in the absence of some express indication to the contrary, should be attended with that presumption for the reasons we have already given in terms of times changing.

The basis upon which the contrary intention seems to have been found flowed from section 501C(4) which is in no way concerned at all with the personal discretionary power vested in the Minister under section 501(2). Hence, the submission that, in relation to contrary intention and the Migration Act itself, there is a point of particular importance in relation to exactly what does attend, in terms of finality, in the face of a statutory presumption, a power which may only be exercised personally, relevantly, by the Minister.

Those are the bases then upon which it is submitted that the case warrants a grant of special leave, a point of pervasive importance in relation to the statutory powers vested in the Executive agents of the Commonwealth under Commonwealth statutory or subordinate legislation and then in relation to whether or not, with a personal ministerial power, there is a contrary intention. If the Court pleases.

GUMMOW J: Just before you sit down, Mr Logan, what was the relief that Justice Spender gave, a declaration?

KIRBY J: It was a declaration, was it not?

MR LOGAN: Yes.

GUMMOW J: A declaration that the cancellation had been revoked - - -

CRENNAN J: By a letter of 13 September 2001.

MR LOGAN: His Honour really just took the view in light of Craig’s Case, an earlier one concerning the sort of letter, that it did amount to a revocation and that was the end of the matter, in effect.

CRENNAN J: Was his Honour addressed on the section 33 point?

MR LOGAN: Not as far as I am aware – I did not appear below – and it certainly does not appear from the reasons for judgment. One might expect it would have had that occurred.

GUMMOW J: What relief would you seek here? You seek a restoration of that declaration, do you not?

MR LOGAN: In effect, that is right, yes.

GUMMOW J: Not in effect expressly. At page 58 the appeal from Justice Spender be dismissed so there we are, so it would turn on this letter, would it not? Where do we see the text of the letter?

KIRBY J: I think it is reproduced in one of the reasons.

GUMMOW J: It is reproduced to some extent in one of the reasons, is it, as Justice Kirby says?

MR LOGAN: Yes, if you go to page 1, please, of the record, paragraph 3 in Justice Spender’s judgment, you see the essential part of the letter:

‘...the Department will no longer be proceeding with your removal following the conclusion of the custodial element of your sentence.’

That particular form of words was regarded in Craig’s Case as a revocation.

KIRBY J: You say the way the statute works is that, having given that notice and having thereby indicated what the department intended to do, there is a necessity, if it can be done, to reconsider the matter in new facts and new circumstances?

MR LOGAN: Exactly, and those new facts would be both favourable and unfavourable.

KIRBY J: That is not such a big burden on the Minister in the working of the statute and therefore it is not one from which you shrink. It is simply the re-exercise of or the fresh exercise of the power which is in very broad terms granted under the statute.

MR LOGAN: Indeed, that is right, with respect.

CRENNAN J: Cannot a decision not to proceed with removal be taken without a necessary revocation of a prior decision?

MR LOGAN: One would have to revoke one’s revocation, as it were, yes. One might expect though that - - -

GUMMOW J: The problem in a way with that sort of statement is that it might found a case of estoppel of some sort but Kurtovic says that does not run in this area, motions of estoppel.

MR LOGAN: Indeed, that is right.

GUMMOW J: So you have to put this at a higher level, do you not, and say it is an actual revocation.

MR LOGAN: That the letter itself was a revocation, yes, that is right.

GUMMOW J: Thank you, Mr Logan.

MR LOGAN: Thank you.

GUMMOW J: Yes, Mr Derrington.

MR DERRINGTON: May it please the Court. Your Honours, may I take up that last point addressed by my learned friend first. In the respondent’s submission, that of itself is a reason why this case is not a suitable vehicle for the Court’s attention in this matter. The question of whether or not the letter of the Minister was a revocation or not was not something addressed by the Full Court, none of the members of the court dealt with it.

KIRBY J: It is only a matter of interpreting the letter. It is not a lot of facts. You just have to look at the letter and see whether that constitutes a revocation.

MR DERRINGTON: What your Honour says is correct but that being said though were the point agitated by my learned friend as being the important point for this Court to determine the relevant - - -

KIRBY J: If we look at it practically, Mr Derrington, the Minister had made the decision, then came down Taylor, and then they must have had a minute or something to the Minister that said, “We’ve got Taylor now and you can’t go ahead with the earlier decision and therefore we suggest a letter in these terms be sent”. There must have been that and that, as it were, does seem to be the logical course that would have happened and it does suggest that there was a meeting of the mind of the Minister on the previous decision and a decision that the Minister would “revoke” that decision because she could not go ahead with it.

MR DERRINGTON: Not to revoke but merely, for the time being at least, not to enforce the decision.

KIRBY J: The time being is something that we will not go into in any great detail but that does not normally happen, certainly not as swiftly.

MR DERRINGTON: Quite, your Honour, but the short point is though that the applicant may necessarily fail if he cannot overcome that point which has not yet been argued. That is why, we would submit, in one respect this is not a suitable vehicle, that is, he may fail on that issue of which this Court does not have the benefit of the judgments of the members of the court below.

KIRBY J: But it really is just a matter of interpreting the letter and its legal effects so that is not a big deal. Do you rely on the subsequent conviction? Is that something that one should take into account, given that that does seem to suggest that the Minister might decide the matter against the applicant. On the other hand, the Minister would be bound, if there has been a revocation, to take into account any good things and we just do not know what the good things are.

MR DERRINGTON: I accept that is so, your Honour, and the new facts may have enlivened another occasion on which the Minister might exercise her power under section 501(2) to - - -

KIRBY J: It is speculation, is it not, to decide how, if the Minister did decide the matter again she would decide the matter because we just do not know all the facts and she would have to know all the facts, up to date, in this particular applicant’s case in order to make the decision lawfully.

MR DERRINGTON: Quite, your Honour, although the most significant fact is a conviction for a serious offence, the consequence of which was incarceration.

GUMMOW J: What was the offence, do you know, the latest in this rather lengthy list?

MR DERRINGTON: Yes, your Honour, I apprehend it was breaking - - -

GUMMOW J: Stealing a motor vehicle this time, he was imprisoned for two years. He seems to have spent a fair amount of his life in Australia as an adult in prison. Yes, go on.

MR DERRINGTON: Yes. Your Honour, might I move on to the section 33 point. Your Honours, the respondent’s submission is simply that this Court, in Pfeiffer v Stevens, considered the analogue of section 33(1), that is in the Queensland legislation, and, with respect, to my learned friend’s submissions, the principle identified by this Court in that case for the application of - - -

GUMMOW J: What was Pfeiffer v Stevens about?

MR DERRINGTON: Your Honour, it dealt with the analogue of the provision of section 33(1) in the Queensland legislation.

GUMMOW J: What was the case about?

MR DERRINGTON: The facts are somewhat complex although it dealt with interim local government by-laws and the power to make laws. It was somewhat different, I accept that.

KIRBY J: I wonder why we cannot remember it.

MR DERRINGTON: Quite, your Honour, but, nevertheless, the short point at paragraph 56 of the reasons of Justice McHugh - the citation is 209 CLR57. It is document 5 in the respondent’s bundle of cases, may it please your Honour - - -

KIRBY J: The analogue is section 23(1), is it?

MR DERRINGTON: Yes. In relation to that provision, his Honour Justice McHugh identified that the contrary intention that the Court looks for in the legislation:

may appear not only from the express terms or necessary implication of a legislative provision but from the general character of the legislation itself.

With respect to his Honour, Justice McHugh, that seems to be rather mundane but in the application in this case that is what occurred. Justice Dowsett, as your Honours have heard, took a different line in the application of that provision. His Honour applied a consideration of the broader operation of the Act and identified a contrary intention. Their Honours, Justices Hely and Lander looked at the more specific provisions of the legislation and found the contrary intention.

In other words, your Honour, there was nothing unusual in this case about the application of the principle identified by his Honour Justice McHugh save that the application differed between the judges. So, in that respect, no principle arises in relation to the application of section 33(1). It is simply an interpretive provision and the central issue is whether a contrary intention appears either from the Act itself or the particular provisions.

KIRBY J: Yes, but all of these are simply canons written in statute law to try to get at the true operation of the Migration Act and why is it not the true operation of the Migration Act that in this case the Minister made the decision to remove, then wrote the letter which seems to indicate, at least arguably, that she had reached a view that she could not or would not or could not and would not remove and so that the caravan has moved on and if she is to remove, which is her perfect power, at least she has to do so on updated facts in the circumstances of a person who had lived his entire life in this country and from a child of two months.

MR DERRINGTON: May it please your Honour, perhaps there are two responses. The first is in relation to the point of whether or not the power of revocation was in fact exercised. The point that the Full Court adopted was there is no power to revoke the decision made. In respect of section 501 and its associated provisions, there are some decisions of a minister who cancels a visa to revoke and in respect of the others, and in this case it was the exercise of the other powers, there is no express power. Put briefly, your Honour, under section 501 and its ancillary provisions, there are five occasions on which the Minister might exercise a discretion to cancel a visa. In respect of three of them, the Minister must accord natural justice before making that decision and can I tell your Honours that it was one of those powers that the Minister exercised in this case.

In respect of the other two provisions, the Minister does not need to accord natural justice before cancelling the visa. It is in respect of those latter two powers that the Minister might subsequently revoke his decision after giving the erstwhile visa holder an opportunity to be heard. So, in other words, the express power of revocation is granted specifically to the Minister on those occasions when the Minister can cancel a visa without hearing from a visa holder. The scheme of the Act is that the Minister is then required to give the erstwhile visa holder an opportunity to be heard about whether or not he or she ought revoke that decision and then the Minister revokes or does not otherwise.

Your Honours, can I also mention in this respect, that the express powers of revocation also have with them ancillary provisions dealing with the consequences of revocation, that is the original decision is of no effect and the Commonwealth is not liable for any detention caused under the decision to cancel the visa.

KIRBY J: It was a peculiar situation where the Constitution intervened by the decision of Patterson and therefore by the Constitution the decision had no effect, at least during the period that Patterson ruled.

MR DERRINGTON: Correct, your Honour, although then when Shaw was decided it was found that it did have effect.

KIRBY J: Do you have to mention that, Mr Derrington?

MR DERRINGTON: I apologise, your Honour.

GUMMOW J: You do not have to apologise to me.

KIRBY J: The original decision was made by Minister Ruddock, I assume, was it, and the matter would now come up before a different minister who might have different views on these matters.

MR DERRINGTON: That is true, but the question which was decided by the Full Court was whether or not the letter could amount to a revocation simply because there was no express power to do so and, in our submission, we have outlined that the only question is whether or not a power to revoke ought be implied into the Act either by a reading of the Act or by section 33(1) and we adopt what your Honour Justice Gummow indicated at the commencement of this hearing, that is to the effect it is difficult to see that section 33(1) implies or assumes or presumes a power to revoke when that is not mentioned at all. In that respect we note section 33(3) of the Acts Interpretation Act referring to instruments expressly identified - - -

KIRBY J: On one view, it does not address “revoke” but that still leaves the general principles of revocation applicable.

MR DERRINGTON: Correct, although perhaps the general rules of revocation were that there was no power to revoke a decision once made. Indeed, that was, in our respectful submission, the thrust of your Honour Justice Gummow’s decision in Kurtovic and in that respect both Justices Lander and Hely adopted what your Honour had said in Kurtovic about identifying the provision and trying to ascertain whether or not it was spent on its first exercise and, indeed, that forms the foundation of their decision that there was a contrary intention in the Act.

GUMMOW J: Thank you, Mr Derrington. Yes, Mr Logan. Do you have anything in reply?

MR LOGAN: Yes, three matters, if the Court pleases. Pfeiffer’s Case concerned just the power insofar as it related to an ability to extend. It in no way touched on whether it carried with it a quality of revocation. Secondly, the fact that other provisions might have express statements in relation to revocation does nothing more than indicate a contrary intention in relation to those statutory powers. Thirdly, and by reference to paragraph 20 on page 13 of the application book, there was a finding below by Justice Spender, never challenged, that in his judgment:

the letter of 13 September implicitly communicated to Watson that a decision had been made by, or on behalf of, the Minister to treat the decision to cancel his visa as no longer operative or having any force or effect.

KIRBY J: I take that third point and that is the way I think I would interpret it but I am not quite so convinced on your second point. You
remember in B v Minister for Immigration, a very critical matter in that, at least for me, was that there were express provisions in the Migration Act for searching children and that made it very difficult to say that you could introduce general notions into the Act to suggest that the Act did not contemplate the detention of children in immigration detention because the Act had addressed it.

Now, I would like you to help me a bit more on the submission, which I took Mr Derrington to be making, that because the Act gives particular provisions for revocation and because revocation is quite a serious matter for a minister to make, why does the absence of a particular provision relevant to this case and a specific statement of the Minister that “I am revoking the decision” not suggest that revocation did not apply in this particular case? Parliament has addressed its attention to the limited circumstances for revocation.

MR LOGAN: The answer to that, in our submission, lies in the express way in which this very power has been quarantined away from those, leaving intact, in our submission, the ordinary statutory presumption. In other words, there was a need perceived to have a particular codification in relation to non-natural justice decisions, as it were, but this one is one that has been reserved personally to the Minister and it is a strong presumption, in other words, to allow different ministers in different times to have different views.

GUMMOW J: Yes, thank you. We will take a short adjournment

AT 10.55 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.06 AM:

GUMMOW J: What I am about to say represents the view of the majority of us.

Having regard to the terms of the letter of 13 September 2001, to the necessity for the applicant to show that this amounted to revocation, to the absence of any decision by the Full Court on that point and to the decision of the Full Court on the issue of contrary intention, this is not an appropriate occasion for this Court to consider questions of principle respecting section 501(2) of the Migration Act 1958 (Cth) and section 33 of the Acts Interpretation Act 1901 (Cth).

Accordingly, special leave is refused with costs.

AT 11.07 AM THE MATTER WAS CONCLUDED