MIAC v SZKKC & Anor; MIAC v SZJMA & Anor [2008] HCATrans 86 (8 February 2008)

Last Updated: 13 February 2008

[2008] HCATrans 086

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S380 of 2007

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Applicant

and

SZKKC

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Office of the Registry
Sydney No S381 of 2007

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Applicant

and

SZJMA

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Applications for special leave to appeal

GLEESON CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 FEBRUARY 2008, AT 12.18 PM

Copyright in the High Court of Australia

__________________

MS M.A. PERRY, QC: If the Court pleases, I appear with MR S.B. LLOYD for the applicant. (instructed by Sparke Helmore)

MR R.T. BEECH-JONES, SC: If the Court pleases, I appear with MS K.A. STERN for the first respondent. (instructed by Gilbert & Tobin)

GLEESON CJ: Yes, Ms Perry.

MS PERRY: The application raises an important question of statutory interpretation as to whether time limits on judicial review under the Migration Act, as it now stands, begin to run if and only if an applicant personally has been physically handed a written statement of the decision by the Refugee Review Tribunal. On the construction adopted by the Full Court physical receipt of the decision by a visa applicant by any other means would not suffice, nor physical receipt by a person nominated by the visa applicant or his or her authorised recipient, a question which arises as a result of amendments since the decision of this Court in WACB.

GLEESON CJ: The decision in WACB was a decision about a person who was in immigration detention at the time.

MS PERRY: Yes, your Honour, that is correct.

GLEESON CJ: There does not seem to have been a lot of attention given to that aspect of the case in some of what has been said in relation to these cases.

MS PERRY: I think that the relevant provisions which would have applied in these cases were ones which on the face of them required a provision of a statement in writing. The relevant provisions which were applied were section 430D.

GLEESON CJ: It might be worth looking, in due course, in WACB at the significance for that decision of the circumstances that the person involved was in immigration detention and the consequences of that for the operation of the other provisions of the legislation.

MS PERRY: Thank you, your Honour. I will come back to that one, if I may. The third point that arose as a result of the Full Court’s decision is that normal physical receipt outside of the 14 days prescribed in section 430D(1) so finds, which is a point which would go beyond the decision, we would say, in WACB v Minister for Immigration and Multicultural Affairs. The relevant time limit, of course, is prescribed in section 477(1) which provides that:

An application to the Federal Magistrates Court . . . must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.

So the question is ultimately how the words “actual (as opposed to deemed) notification of the decision” are to be construed. At bottom, it is the applicant’s case that the Act has materially changed since the decision in WACB and that the Full Court was in error in purporting to apply it. Rather, we say that as the Act presently stands the Act requires actual notification of the decision to the addressee, be it the applicant or a person authorised by the applicant, to receive it.

Section 477 is relevantly in the same terms as section 477A which applies to applications for judicial review in the Federal Court and, of course, also to section 486A which applied to the High Court until it was held invalid in Bodruddaza but it was on section 486A that the provisions that we are concerned with now were modelled. As such, the times limits prescribed by section 477 and 477A potentially apply to a considerable number of cases in the Federal Court and Federal Magistrates Court.

In addition, of course, the Full Court’s decision is not limited to the giving and receipt of statements of decision by the Refugee Review Tribunal. The statutory scheme for the giving and receipt of documents in Division 7A of the Act, which is relevant here, has its equivalence, with respect, to the Migration Review Tribunal and also to primary decision-makers where there is no merits review.

Notwithstanding that the Full Court felt driven to the construction that it adopted on the basis in large part, we say, the decision in WACB, the questions arising here are not resolved, we say with respect, by that decision. At the time that WACB was decided, a time limit was imposed by section 478(1) of the Migration Act in very different terms and that was that an application under sections 476 or 477 must be lodged with the Federal Court within 28 days of the applicant being notified of the decision.

Now, the court, of course, in that case held that given the legislative structure and history of the Act, as it was at that time, notification of the decision required that the code set out in Part 7 as it applied to the Refugee Review Tribunal and Division 6 of Part 5 in relation to the Migration Review Tribunal prescribing the methods by which a tribunal decision could be delivered to an applicant be observed.

In that case, as your Honour has pointed out, the relevant method was also section 430D(2) which required that the Tribunal give the applicant a copy of the written submissions within 14 days. The requirement that the court held meant physical delivery to the applicant and accordingly it was only at that point in time that section 478(1)(b), the time limit, was enlivened and time began to run.

However, WACB did not deal with the question of what the words “actual (as opposed to deemed) notification of the decision” meant. Those words, of course, were first introduced when section 486A was enacted, after the decision in that case.

GLEESON CJ: In the WACB case, WACB in immigration detention, was there any provision in the Act then for delivery of reasons to a representative of the applicant?

MS PERRY: No, your Honour, there was not, and in fact that was one of the fundamental points that we say distinguishes the cases that we are concerned with from the case in WACB.

GLEESON CJ: If WACB had not been in detention, then is it not the case that delivery to a representative would have sufficed?

MS PERRY: We would have said, yes, your Honour. In this case, in the case of SZKKC, we had delivery to a representative of the applicant. That occurred prior to the insertion of section 441G, which enabled a person to nominate an authorised recipient, but nonetheless a representative was a person authorised to represent the applicant. In the case of SZJMA, however, the applicant did nominate an authorised recipient in accordance with section 441G. Those differences, we say, are critical. WACB simply did not deal with that question.

In addition, a third, we say, significant difference is that there was no longer a requirement that there be notification of the decision to the applicant as there had been in the time limit construed in WACB. Those words simply do not appear in section 477 and 477A. These differences, we say, are critical. They reveal a break from the legislative history which had played such a significant role in WACB and the significance of those differences and the significance of the different factual circumstances in these cases, we say, carry a much greater weight, a much greater significance, than the Full Court accorded them. If I can illustrate those by reference to the tension we say that the Full Court’s construction creates.

GLEESON CJ: We thought we would be assisted at this stage by hearing what Mr Beech-Jones has to say.

MS PERRY: Thank you, your Honour.

MR BEECH-JONES: Your Honours, can I just make a couple of points at the outset and then come back to the issue that your Honour raised in the questions to my learned friend. Your Honour, in my respectful submission, at no point does the application raise any question of principle. From beginning to end it is a question of statutory construction and it is brought by the party who, if it is dissatisfied with a particular statutory outcome, is probably in the best position to approach Parliament to correct it.

Just turning to the particular provision and the relevance of WACB, can I just briefly remind your Honours what the change in the time limit provision was. In WACB the time limit was within 28 days of the applicant being notified of the decision and the critical finding in WACB was, in context and not just for people in immigration detention, being notified of the decision meant notified of the written reasons of the tribunal in a case such as that, that is, a case where a tribunal had given a decision and was obliged to prepare a written record and then by the time the provision in this case is within 28 days of the “actual (as opposed to deemed) notification of the decision”.

Now, your Honour is clearly correct to say that WACB did not address a case in which the person in immigration – the circumstance where there was a scheme for the notification to the migration agent of a person in immigration detention. Its relevance to this case was what it said was required by the words “notified of the decision”. But the Full Court of the Federal Court did not rely on WACB to do with any aspect of the case concerning notification to agents. It considered that notification to agents was not sufficient to engage or to set the time of it running because of the inclusion of the words “actual (as opposed to deemed)”. It just was not in the world in WACB.

That was because the Minister’s primary submission in the Full Court was that this current time limit within 28 days of the “actual (as opposed to deemed) notification of the decision” included notification to migration agents and representatives, and that was the primary focus of the Full Court, was to answer that by going through the statutory scheme and saying, is it working a deeming or is it truly actual?

CRENNAN J: Which was effective to get time running.

MR BEECH-JONES: Which was effective to get time running. The Minister’s second argument in the Full Court, which is their primary argument now, was that leaving aside that, “notification of the decision” no longer means written reasons and the answer to that was, well, using Justice Buchanan’s judgment, well, no, we feel bound by WACB in that nothing sufficient has changed in the statutory scheme in relation to those words, “notification of the decision” to alter the position that it has to be in the written reasons.

Can I just point out to your Honours where that is in the Full Court. If your Honours have the book in SZKKC at page 45, we are well into Justice Buchanan’s judgment. Justice Buchanan is undertaking an analysis of saying, what is an actual notification and what is a deemed notification under this statutory scheme, because the Act says “actual (as opposed to deemed), and that means I have to distinguish between one and the other. Then he gets to paragraph 25 at the bottom of page 45 and says:

An important issue in WACB, and for the present appeals, concerned what was to be notified and how.

Then his Honour goes on to discuss that from the bottom of page 45 to the top of page 47. To conclude, perhaps the relevant paragraph is at the bottom of page 46:

In the present case the respondents urged that there was no reason to depart from these findings which should be regarded as remaining authoritative in all relevant respects. The Minister, on the other hand, argued (although it was not his ‘preferred position’) that the replacement of s 478 by the provisions now found in Part 8 and Part 8A (including ss 477, 477A and 486A) might be seen as bringing about a fundamental shift in the statutory scheme so as to render inapplicable the observations in WACB. In my view this contention should not be accepted.

So that in the Full Court the relevance of WACB was, what has to be notified, and Justice Buchanan accepted that it flowed from that that it was notification of the written reasons. That has got nothing to do with whether you are in immigration detention or not and it has not got anything to do with method of notification, that is really a separate aspect of the case.

In my respectful submission, we come back to this, that what the Minister’s now primary argument, which was its alternative argument, is that the error of principle is said to be the Full Court paid too much regard to a decision of this Court as opposed to the usual complaint that they did not pay sufficient regard and one might search in vain, at least in the written submissions, for any identification of an error of principle in any part of a Full Court’s judgment. What we are left with is a disagreement over the statutory construction of a time limit from a litigant who is probably in the best position to fix the problem, if there really is a problem. Your Honour, those are my submissions.

GLEESON CJ: Thank you. In these two matters there will be a grant of special leave to appeal and we will adjourn now until 2.00 pm.

MR BEECH-JONES: Could I just raise one matter, your Honour? We did seek an undertaking about costs.

GLEESON CJ: Yes, yes. Why should you not be put on condition that you do not disturb the orders for costs below, Ms Perry?

MS PERRY: Your Honours, we have in fact in our written submissions indicated that given the importance of the matter the Minister was prepared to pay the respondent’s reasonable costs whatever the result of any appeal.

GLEESON CJ: That is the costs of the appeal?

MS PERRY: Yes.

GLEESON CJ: And not seek to disturb the orders for costs made below?

MS PERRY: May I just have a moment, your Honour? There were no costs below, your Honour, I understand.

GLEESON CJ: Then you will not have any problem about giving that now. That leave is granted on condition that it is noted that the applicant in each case, the Minister, agrees to pay the costs of the respondents in any event and not to seek to disturb any orders for costs that were made below. We will adjourn until 2.00 pm.

AT 12.36 PM THE MATTER WAS CONCLUDED