Berenguel v Minister for Immigration and Citizenship [2009] HCATrans 265 (9 October 2009)

Last Updated: 20 October 2009

[2009] HCATrans 265

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M66 of 2009

B e t w e e n -

MARCOS FLAVIO BERENGUEL

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Application for an order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 OCTOBER 2009, AT 9.26 AM

Copyright in the High Court of Australia

MR A. BONNICI: May it please your Honour, I appear on behalf of the plaintiff. (instructed by S.V. Winter & Co)

MR R.C. KNOWLES: If the Court pleases, your Honour, I appear for the defendant. (instructed by Clayton Utz Lawyers)

HER HONOUR: Yes, Mr Knowles.

MR KNOWLES: Your Honour, the matter obviously came before the Court on 7 October and at that time the parties informed your Honour that there had been no agreement reached about the special case. Your Honour heard at that time that there had been a questions of law document which had been filed by the plaintiff on 5 October and the questions in that document solely related to construction of subregulation 1.15B(5) of the Migration Regulations 1994. There was no reference in that document to other grounds which were set out in the further amended application such as a denial of natural justice ground and a Wednesbury unreasonableness ground. The Court also heard on that occasion - - -

HER HONOUR: I think it was, in a sense, accepted to a degree on the previous occasion that those grounds were really about the statutory construction issue, or the issue of the construction of the relevant regulation. That was my impression. I may be wrong.

MR KNOWLES: Yes, your Honour. What has since occurred, since the filing of the draft special case, is, as your Honour will be aware, there has been agreement about the form and content of the statement of special case. That has been filed with your Honour. There should also be a copy of the annexure to the document which has been filed.

HER HONOUR: Yes, I have that, thank you.

MR KNOWLES: The parties, I can inform the Court, have also agreed to proposed orders for the timetabling for the proceeding such that the plaintiff file and serve submissions and a list of authorities no later than 15 working days before the date of the hearing and that the defendant file and serve submissions and a list of authorities no later than seven working days before the date of the hearing.

Despite agreement about the special case and the timetabling, your Honour, the matter has come back before the Court due to the present form of the plaintiff’s application as further amended. There is an outstanding issue on the part of the defendant as to what grounds are actually going to be pursued in this case. In that regard, your Honour, I have a copy of a very short affidavit which I have handed to my learned friend earlier today and I would seek leave to hand up the original of that affidavit to your Honour.

HER HONOUR: Yes.

MR KNOWLES: The affidavit exhibits two pieces of recent correspondence sent from my instructors to my learned friend’s instructors and I will return to it in just a moment, but I just indicate that because there is nothing in the affidavit which, in my submission, would come as a surprise to my learned friend or the plaintiff, for that matter. In relation to this matter, your Honour, your Honour will recall that, at the time of the matter first coming before your Honour on 16 September 2009, the defendant opposed the enlargement of time in respect of the grounds that were then set out in the application on the basis that there was no merit in them. Your Honour might recall – and it is recorded at lines 116 to 117 of the transcript of the hearing on that occasion – that - - -

HER HONOUR: I will just turn that up, if I may.

MR KNOWLES: Yes.

HER HONOUR: Yes.

MR KNOWLES: Your Honour there said:

So as it presently stands, it might be said that the application contains no arguable point –

and then your Honour moved on, though, to discuss the issue of statutory construction and that particular point.

HER HONOUR: That was raised as an arguable point and as the point that was sought to be argued through the grounds in relation to procedural fairness and Wednesbury unreasonableness. I think Mr Bonnici agreed with that. That was the basis on which I was proposing that it may be an appropriate matter to be the subject of a special case and there was some debate about whether that point was arguable or not.

MR KNOWLES: Yes, your Honour. The defendant’s concern really rests with the other grounds.

HER HONOUR: Does it matter particularly if they are just variations on a theme?

MR KNOWLES: In my submission, it does in the sense that it is not clear at the present time whether or not this is purely a statutory construction case or whether or not there are some arguments that are going to be raised concerning Wednesbury unreasonableness or natural justice.

HER HONOUR: At large.

MR KNOWLES: At large, that do not - - -

HER HONOUR: I always understood they were all related to a statutory construction point, but I dare say I can ask Mr Bonnici to confirm that. Just assuming they are related to the statutory construction point, which was always my understanding, it would not matter then if they remained in the application because they are all variations on the argument about the statutory construction point.

MR KNOWLES: In my respectful submission, your Honour, if they are related to the statutory construction point and therefore subsumed within it, there seems very little point - - -

HER HONOUR: They are otiose, in a sense, are they not?

MR KNOWLES: - - - in having them and perhaps keeping the door somewhat ajar for something to be revived at large. That is my client’s concern about this.

HER HONOUR: I can understand that.

MR KNOWLES: If this case is purely a case relating to statutory construction - - -

HER HONOUR: I always understood it was, that there was one point in this case, which was like the Kamal Case, the one point being the statutory construction point.

MR KNOWLES: Yes. Obviously – and I have submitted this to your Honour before – we say that it is completely distinguishable from Kamal.

HER HONOUR: I understand that.

MR KNOWLES: But we certainly agree that if there is any point whatsoever, it comes back to a statutory construction point. That seems to have been acknowledged in the questions of law document prepared by the plaintiff and filed and served on 5 October which does not refer to anything in relation to natural justice or Wednesbury unreasonableness. If the plaintiff is successful on the construction point, then the other arguments fall away. If the plaintiff is unsuccessful on the construction point, similarly those other arguments which are completely dependent upon that would fall away.

So in the circumstances, your Honour, it seems, from the defendant’s perspective that there is little utility in having those grounds there and there is concern on the defendant’s part that it might lead to some sort of revival of some additional matter outside the confines of the special case. If I can take your Honour now briefly to the exhibits, to the affidavit of Natasha Bosnjak, can I take it that the affidavit is read, your Honour?

HER HONOUR: Yes.

MR KNOWLES: Yes. Your Honour will see that the first exhibit NB-1 is correspondence from my instructors to my learned friend’s instructors. It is dated 5 October 2009 but, in fact, it was actually sent, as your Honour will see on the second page of the exhibit, on 6 October 2009 at about 20 to three. Your Honour will see there that in the last paragraph of that correspondence it is put by my instructors that they have thought that the grounds, other than the construction ground, were not pressed. It is also put that that appears to be confirmed by the proposed questions of law document which was sent and there is a request as to the intentions in relation to those three grounds.

HER HONOUR: Just going through those, the natural justice ground, which is ground 2 in the amended application, seems to be related to the argument about statutory construction. It is part of the agreed facts now, is it not, in the special case?

MR KNOWLES: Yes, your Honour. As I understand the natural justice ground, it is put on the basis that a person can have a legitimate expectation that their visa application will be dealt with lawfully. So, in other words, if the Court were to find that the visa application had been dealt with lawfully, there had been no error or misconstruction of the relevant regulation, then it seems, from what I can understand of the ground, it would simply fall away.

HER HONOUR: Ground 3 then, relevant considerations, again it is a ground which is turning on chronology of events prior to and subsequent to the application and, again, it seems to me it turns on this statutory construction point.

MR KNOWLES: In my submission, it totally does.

HER HONOUR: I have always apprehended that ground 4 is about the statutory construction point.

MR KNOWLES: As I understand it, your Honour, that is how it is raised by the plaintiff. Mr Bonnici can, no doubt, enlighten the Court about that. The submission that is made by the defendant is that if that is so, there is no need for these other grounds because they are all hanging off the statutory construction point. If that point is successful, then perhaps these grounds might also be successful. If that point is unsuccessful, then these grounds would most certainly not succeed because they are entirely dependent on the statutory construction.

HER HONOUR: That is right. Does it cure things for the application to make it a little clearer that those grounds all turn on the statutory construction point, as I feel confident they do?

MR KNOWLES: The position that the defendant has put to the plaintiff is that the grounds, if they are merely another way of putting the statutory construction point and are entirely dependent on it, ought to be abandoned in the circumstances of the case where they will hang off this point. There has been agreement between the parties for the matter to be referred pursuant to a special case. That agreement is intended to narrow the issues such that there need not be consideration of matters that are, in this sense, otiose or extraneous to the core issue and in those circumstances it is submitted that those grounds ought to be, in my submission, struck out.

To the extent that they might be raised at large, it is submitted that submissions that were previously made before your Honour about the natural justice point and the unreasonableness point in the defendant’s outline of submissions previously indicate that they are otherwise, in my submission, without merit. In relation to the natural justice point, it is not clear whether or not there is some other basis that might be put, but if it were, what is pointed out is that the natural justice point relies on common law obligations. Section 51A of the Migration Act purports to exclude those obligations.

Even if there were common law obligations, there is little basis to say that they would apply prior to an application even being lodged for the visa at a time when the defendant could not even have known necessarily that the plaintiff was going to actually apply for the visa. Even if you could then say that there were common law obligations in such circumstances, as your Honour will recall, the relevant visa application form made it quite plain that there was a need to put evidence in in support of language ability as at the time of the application. So the form clearly indicated what the understood requirements were of the relevant criteria.

Insofar as Wednesbury unreasonableness is raised, the only basis seems to be on the basis of statutory construction. Now, that of itself will not give rise to unreasonableness. So, in my submission, having regard to,

firstly, the approach taken by the plaintiff in this case where there have been requests, particularly in the correspondence of yesterday, indicating that there is a desire that those grounds be abandoned because of the nature of the special case which is put forward and indicating that if those grounds were not abandoned, then there would be a need to come before your Honour today and the defendant would seek its costs of and incidental to the hearing today, also, the fact that those grounds, except insofar as they might hang off the statutory construction point, are, in my submission, unarguable.

Having regard to all of those matters, and also the fact that there was otherwise complete agreement between the parties which meant that there was no other reason for the matter to come before your Honour today, for those reasons it is submitted that the grounds that appear in the further amended application that are not contemplated by the special case ought to be struck out with costs. The costs, though, I should indicate, would only be confined to the costs of and incidental to the appearance required by the defendant’s representatives today. If your Honour pleases.

HER HONOUR: Yes. Thank you, Mr Knowles. Yes, Mr Bonnici. Mr Bonnici, I always understood that you were co-operating in relation to a special case on the basis that the real ground which you wished to raise on behalf of the applicant was this point of statutory construction. There was some discussion on the last occasion, I think, of the authority of the decision in Kamal. So you have heard what Mr Knowles has said and I dare say you have also heard me say that it would be possible, I would have thought, to slightly amend the application to ensure that it becomes very clear that all the grounds are related to this issue about the construction of regulation 1.15B(5).

MR BONNICI: Your Honour is quite right that, in fact, the plaintiff says that they are all parts of the construction point.

HER HONOUR: Yes. When you refer to Wednesbury unreasonableness you are referring to the construction point.

MR BONNICI: Exactly, yes. Now, the issue is this, that this matter was raised. Myself and Mr Knowles have had discussions last hearing day, on the 7th, yes, and I raised the same point with him. I said I would not want to see them withdrawn or struck out purely because they are part and parcel of the construction case and I would like to see them remain there.

HER HONOUR: Do you have a copy of your further amended application with you?

MR BONNICI: Your Honour, I am not so certain.

HER HONOUR: I wonder if Mr Knowles would let you have a look at his for the moment.

MR BONNICI: I am just trying to find my spectacles wherever they are. Age is an odious thing. Yes, your Honour.

HER HONOUR: Just give me a moment. If you look at ground 2, which is the natural justice ground, it says there:

A breach of the rules of natural justice occurred in connection with the making of the decision.

You could add to that “insofar as regulation 1.15B(5) was misconstrued”. Then you go on with the particulars. Then if I can just take up the same point in relation to paragraph 3, you could start by saying, “In construing regulation 1.15B(5) the primary decision maker failed to take relevant considerations into account”. That picks up the point. Then in 4, instead of “The decision is so unreasonable”, you could amend that to read “The construction of regulation 1.15B(5) is so unreasonable that no – that would cure this problem. Mr Knowles has identified a valid problem which is that the special case is meant to allow for the removal to the Full Court of this particular point that you wish to run. I understand you want to identify the point in different ways by reference to natural justice and by reference to Wednesbury unreasonableness - - -

MR BONNICI: Exactly, your Honour.

HER HONOUR: - - - but those amendments would cover that issue. They would narrow every point down to the construction point which I think is an appropriate course having regard to the referral of the special case.

MR BONNICI: Your Honour, there is no argument against it. For me, I am quite happy to do that.

HER HONOUR: For me to grant leave, in essence, for you to make those further amendments.

MR BONNICI: Yes, your Honour. That is what was meant anyway and that is what - - -

HER HONOUR: That is what I always understood was meant.

MR BONNICI: Yes, and that is what I told my learned friend when we were discussing it, that that was my concern.

HER HONOUR: I suppose from his point of view, to leave them as they were would not meet his difficulties. They do require amendment in order to narrow the point down. That seems a simple solution. I might just hear from Mr Knowles. Mr Knowles, I am inclined to permit those amendments which make it absolutely certain that although the point is phrased in different ways, and you may say it otiose, but it permits the applicant to raise the point in as many ways as he wishes to raise the point but at the end of the day it is a construction point.

MR KNOWLES: Yes.

HER HONOUR: I would be inclined, after the application is narrowed in that way, to simply reserve the costs of today. In a sense, there has been a little bit of miscommunication. You have raised a valid concern. Mr Bonnici has raised a willingness to address the concern but it has needed to come up before me before it has actually been implemented.

MR KNOWLES: Yes, your Honour. There is no concern about the further amended application being amended further in some way that deals with these issues.

HER HONOUR: Narrows it, yes.

MR KNOWLES: Your Honour said that it really just ends with the statutory construction point.

HER HONOUR: Yes.

MR KNOWLES: In my respectful submission, on the basis of what Mr Bonnici is saying, it really starts with the statutory construction point and one never even gets to these other arguments.

HER HONOUR: That may well be right. It is just that Mr Bonnici wants the ability in submissions, I suppose, to treat the statutory construction point as having an element of Wednesbury unreasonableness about it. At the end of the day the statutory construction point is either a good point or it is not a good point.

MR KNOWLES: Yes.

HER HONOUR: I do not think it raises any problems for your client to further amend this application in the way I have suggested. It is just occasionally a problem. If you try to put somebody in a straightjacket, it can be counterproductive at the end of the day.

MR KNOWLES: Yes. The only two matters I would say, your Honour, about that is that all of these grounds, as they presently stand and as put by Mr Bonnici, are only symptoms of an alleged misconstruction of the - - -

HER HONOUR: Exactly. That is why I have suggested those amendments with which Mr Bonnici has agreed.

MR KNOWLES: Yes. Just on the misconstruction point, your Honour will no doubt be aware that the statement of special case includes the two questions - - -

HER HONOUR: Yes, I understand that.

MR KNOWLES: - - - and for the part of the defendant at least, regulation 1.15B(5) is relevant, but it is relevant in the context of clause 885.213 which is a time of visa application criterion.

HER HONOUR: Yes, I do understand that.

MR KNOWLES: So, insofar as your Honour’s proposed amendments, certainly from the defendant’s perspective, at least, those amendments relate to the construction of that provision in the context of a time of visa application criterion set out in clause 885.213.

HER HONOUR: Yes, I understand the point you are making, but I do not think that means that the application needs to be amended further to make that plain, do you, because that point is really made plain in the context of the questions of law raised?

MR KNOWLES: The main concern for the defendant, your Honour, is that at some stage down the track, perhaps even after the special case is decided, somehow these other grounds could be revived and then re-agitated before the Court. That is really the main issue on the part of the defendant.

HER HONOUR: As you would know from your experience, it sometimes happens that applicants have access to the judicial power of the Commonwealth and come right up to special leave and then they come back again and then we get into the territory of estoppel and res judicata and so forth. I suppose I am saying to you there is no cast iron way of precluding that.

MR KNOWLES: I accept that, your Honour. All I am saying is, in the context of this present proceeding - - -

HER HONOUR: Yes, I do understand.

MR KNOWLES: - - - I am not even referring to other proceedings. I am more concerned with what might happen down the track even after the special case were to be decided.

HER HONOUR: I think Mr Bonnici has indicated in clear terms for the purposes of this transcript today that the point sought to be agitated in relation to the special case is the statutory construction point in relation to regulation 1.15B(5) and he knows that you have raised in that context the other regulation that is set out in the questions of law.

MR KNOWLES: Yes, your Honour.

HER HONOUR: So probably we cannot do better than that at this stage.

MR KNOWLES: Yes. If your Honour pleases.

HER HONOUR: Yes. All right, Mr Bonnici, I propose to grant the leave to amend and I will read those proposed amendments out as part of my order, if that is convenient to you, just to capture them.

MR BONNICI: Yes, of course.

HER HONOUR: The orders are:

1. Extend the time limits referred to in section 486A(1) of the Migration Act 1951 (Cth) and rules 25.06.1 and 25.07.2 of the High Court Rules as required.
   
2. Grant leave to the plaintiff to further amend its further amended application for an order to show cause so that the words “insofar as regulation 1.15B(5) was misconstrued” are added to ground 2 and also to amend that application so that ground 3 is introduced by the words “In construing regulation 1.15B(5)” and so that ground 4 is amended to delete the second word “decision” and to substitute the phrase “construction of regulation 1.15B(5)”.
   
3. Refer the special case agreed on by the parties pursuant to rule 27.08.1 of the High Court Rules to the Full Court for hearing.
   
4. The plaintiff to file and serve written submissions and a list of authorities no later than 15 clear working days prior to the date of the hearing of the special case.
   
5. The respondent to file and serve written submissions and a list of authorities no later than seven clear working days prior to the date of the hearing of the special case.
   

That leaves the usual rules to cover the reply.

6. Costs be reserved.
   

There is nothing further, Mr Knowles, I think, is there?

MR KNOWLES: No, on my assessment, there is not. There was just one very minor matter. In the pronouncement of the fifth order your Honour referred to the defendant as the respondent.

HER HONOUR: I make that change. Thank you for that.

MR KNOWLES: But aside from that, your Honour, no.

HER HONOUR: Yes. The only other thing may be that paragraph 3 of the special case might need to refer to the fact that there has been more than one amendment to the further amended application. That can surely be attended to by agreement.

MR KNOWLES: Yes, your Honour.

HER HONOUR: Yes, very well. Nothing further, Mr Bonnici?

MR BONNICI: No, thank you, your Honour.

HER HONOUR: Thank you. I thank both members of counsel for their assistance. Adjourn the matter.

AT 9.55 AM THE MATTER WAS ADJOURNED