Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY and Anor [2014] HCATrans 122 (13 June 2014)

Last Updated: 16 June 2014

[2014] HCATrans 122

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S65 of 2014

B e t w e e n -

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

Appellant

and

SZRNY

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

FRENCH CJ
HAYNE J
CRENNAN J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 13 JUNE 2014, AT 10.01 AM

Copyright in the High Court of Australia

MR S.B. LLOYD, SC: I appear with MR B.D. KAPLAN for the appellant. (instructed by Sparke Helmore Lawyers)

MS N.A. ZERIAL: I am led by MR M.J. DARKE for the first respondent. The second respondent has entered a submitting appearance. (instructed by Dobbie and Devine Immigration Lawyers Pty Ltd)

FRENCH CJ: Is Mr Darke favouring us with his appearance?

MR DARKE: I apologise, your Honours.

FRENCH CJ: Mr Lloyd. I think both counsel were given notice of a question which the Court intends to raise with you and that is whether by reason of the enactment of the Migration Amendment Act 2014, there is any more a question of public importance to be considered.

MR LLOYD: What I can say about that, your Honours, is that the new legislation only addresses the issue going forwards. It does not address - - -

HAYNE J: Be it so, Mr Lloyd, why was this matter not drawn specifically to the attention of the Court rather than emerge simply by filing a supplementary annex to your submissions? Did not your side obtain leave on a specific basis?

MR LLOYD: There were a number of arguments put, only one of which was that there were significant implications. There were also arguments to the effect that there were errors in the court below and some of those issues continue.

CRENNAN J: Mr Lloyd, I was present on the occasion, and what was put to the Court was that there was essentially one point, a point of construction, and the Minister sought a grant of special leave because he wished to treat this matter as a test case of some importance.

MR LLOYD: I accept that and I cannot put it any higher than the fact that the legislation only operates prospectively and the issues that were problematic from my client’s point of view remain in respect of previous cases and perhaps bite most significantly in respect of removal questions and that the – to put it at its sharpest, the concern my client has, the ongoing concern in light of the new legislation, is there is ambiguity under the decision in the court below as to whether or not actual notification of a decision would be sufficient to make the visa application finally determined.

CRENNAN J: Did not the majority say in terms that what they said about notification was not directed to actual notification?

MR LLOYD: What they say at paragraph 84 is that:

Notification in this context –

this is at page 185 –

means notification in accordance with the Act; namely ss 441A and 441B and not actual notification –

The concern of my client is that one could have a situation where somebody has - for example, to put it at an extreme example that shows the concern - if somebody has had some flaw with the notification process but has, in fact, received actual notification, potentially has even sought judicial review in respect of that notification, but has never been notified in accordance with the Act, as a result of which the visa application has not been finally determined, as a result of which they cannot be removed, assuming they have been successful. Now, I accept that my client would argue - - -

KEANE J: Where is that question raised in your notice of appeal?

MR LLOYD: It is an issue which arises for the client on the reasoning of the Court below and if our argument is correct, on the matters that are raised on our construction of section 5(9)(a), then somebody who has been actually notified the application would be finally determined and this problem would not arise. So it is something which arises, necessarily, in the construction of 5(9)(a) – or at least, on our construction of 5(9)(a), that problem is avoided.

HAYNE J: That has a hypothetical problem that is advanced for the purpose of argument without any factual foundation. Is that right?

MR LLOYD: Well, we say it is a real problem but it is – I have to accept and I should make this clear – that my client – we cannot put it any higher than there is ambiguity about whether or not notification in accordance with the Act is required. My client, if the issue arose, would argue that notwithstanding the decision in paragraph 84, it cannot be what the court below meant, not least being because there was not actual notification – sorry, there was not notification in accordance with the Act in this case.

KEANE J: No doubt if that question arose, it could be decided in the usual way and would come to this Court having been considered by courts below, but it is just simply not something which was at the forefront of the consideration of the court below which that court was asked to resolve. It is something that has arisen in the heel of the hunt.

MR LLOYD: Paragraph 84 is the beginning of the reasoning that leads to the construction of 5(9)(a). It is an intimate part of their analysis that notification is, and notification to both parties, was an essential part of the review.

KEANE J: However that notification might be effected.

MR LLOYD: True.

KEANE J: It is sufficient for the decision of this case that notification did not occur on any view.

MR LLOYD: That is so.

KEANE J: So it does seem to be true to say, does it not, that this is a question that does not arise for resolution in this case, but could be raised and decided in the ordinary way and this Court would have the benefit of the views of the courts below. Indeed, your client might not even be disposed to seek to bring the matter to the Court, depending on how the matter was resolved.

MR LLOYD: That is certainly true but my client would be arguing against what appears to be in paragraph 84, that is so, but my client’s concern is that it will be perceived from the apparently blunt language of 84 that it is part of the reasoning process and therefore part of the ratio of this decision which has an ongoing adverse consequence for my client’s management of the scheme, and notwithstanding that the legislation fixes the bulk of the problems going forward this is one issue that at least could not or was not fixed by the legislation. I cannot take it further than that.

FRENCH CJ: Yes, thank you. Yes, Mr Darke.

MR DARKE: Your Honours, may I make a few short points. The case raises one question of construction and that question of construction is materially affected by the amendments to the Act which your Honours have been discussing with my learned friend.

KEANE J: Well, it is resolved.

MR DARKE: It has been resolved. Indeed. The question of ambiguity which my learned friend raises does not arise in this case because there was no notice in any form to the respondent of the Tribunal’s decision. Could I also note that this case itself arises out of some fairly unusual circumstances. It arises out of circumstances where the Tribunal failed to comply with its statutory obligation to notify the respondent of its decision and where the Minister conceded that if that meant that the respondent’s

visa application was not finally determined before a particular date then the Tribunal’s decision on the application for review was affected by jurisdictional error.

Those unusual circumstances reduce the prospects of this case providing any guidance for courts below even in respect of other cases governed by the old legislation. Finally, there is no evidence before your Honours of any significant number of cases in which the issues of this case arise governed by the old legislation that are in train. If your Honours please.

FRENCH CJ: Thank you, Mr Darke. Anything in reply, Mr Lloyd?

MR LLOYD: Only in relation to that evidence point. The problem from my client’s point of view is if they have somebody who is facing removal in relation to a Tribunal decision not affected by the new legislation the issue arises whether they need to know that the notice by the Tribunal to the review applicant was sent in accordance with the Act. So do they – to know that they have the power to remove - do they need to make inquiries of the Tribunal of which they have no express powers under the Act to make inquiries, although obviously they can ask the Tribunal, and do they need to check in every case?

My client believes it does not have to check in every case if it knows that a decision was made because it has received a copy of the decision and it knows that the review applicant has received actual notification. So, although I accept there is no evidence, it is just logically obvious that in every case where the Tribunal has made a decision prior to the new legislation, the issue arises upon any removal whether or not notification has been done.

FRENCH CJ: All right. The Court will adjourn briefly to consider what course it should take.

AT 10.12 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.18 AM:

FRENCH CJ: The question of construction upon which special leave was granted in this matter was said to have important implications for more than one provision of the Migration Act 1958 (Cth). Since the grant of special leave was made the Migration Amendment Act 2014 (Cth) has been enacted and was assented to on 27 May 2014. Its operative provisions, for present purposes, came into effect on 28 May 2014.

Put shortly, the amendments to the Migration Act effected by the Migration Amendment Act substitute new provisions for those the subject of the Full Court decision in respect of which special leave was granted and have the effect that the case is no longer one of public importance as a test case. Where, as was the case here, the amending legislation undercut the basis upon which special leave was granted, it was to have been expected that the moving party would have brought that matter specifically to the Court’s attention well in advance of this hearing.

In the circumstances, the basis upon which special leave was granted no longer exists and special leave should be revoked. The order of the Court is:

1. Special leave revoked.
   
2. The appellant is to pay the first respondent’s costs.
   

The Court will adjourn until 10.15 am on Tuesday, 17 June.

AT 10.19 AM THE MATTER WAS ADJOURNED