Plaintiff M174-2016 v Minister for Immigration and Border Protection & Anor [2017] HCATrans 31 (16 February 2017)

Last Updated: 17 February 2017

[2017] HCATrans 031

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M174 of 2016

B e t w e e n -

PLAINTIFF M174/2016

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

IMMIGRATION ASSESSMENT AUTHORITY

Second Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON THURSDAY, 16 FEBRUARY 2017, AT 9.53 AM

Copyright in the High Court of Australia

MR R.C. KNOWLES: Your Honour, if it pleases the Court, I appear for the plaintiff in this matter. (instructed by Victoria Legal Aid)

MR A. MARKUS: If your Honour pleases, solicitor for the first defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: Mr Knowles, I gather – perhaps I am being overly optimistic – you have reached something of a rapprochement, at least at this stage of the proceeding.

MR KNOWLES: I believe largely so, your Honour, and to that end can I hand up a form of order that is proposed by the plaintiff to your Honour? It has been provided to my learned friend, Mr Markus.

HIS HONOUR: Certainly.

MR KNOWLES: Now, as your Honour will see from the order and will have seen from the first defendant’s outline of submissions, the parties agree that insofar as this matter involves a challenge to the decision made by a delegate of the Minister, it is not capable of being remitted to the Federal Circuit Court, and insofar as it involves a challenge to the Immigration Assessment Authority’s decision, it is not appropriate, in the respectful submission of the parties, for that to be remitted because that challenge is heavily dependent on the interrelationship in this case between the delegate’s decision and the Authority’s subsequent decision.

So there is agreement about that issue. There is agreement as to orders in respect of the plaintiff filing any agreed special case by a particular date. There is also agreement that the matter ought then subsequently be brought back before the Court for further directions and agreement as to the usual ancillary orders relating to liberty to apply and reserving of costs. The first defendant otherwise does not oppose the grant of an extension of time being made in respect of this proceeding for the plaintiff, but has expressed reservations about that and seems to suggest that that lack of opposition is conditional on the plaintiff discontinuing another proceeding instituted by the plaintiff in respect of the Authority’s decision in the Federal Circuit Court.

The difficulty that the plaintiff has is that the Federal Circuit Court proceeding has been brought within time. It is not a proceeding in which any asserted jurisdictional error relates to the delegate’s decision. It is a proceeding in which any claims will and can only relate to the Authority’s decision. It is also a proceeding in which the plaintiff will not make arguments in any way related to the arguments advanced thus far in the application before this Court.

HIS HONOUR: Just to pause there, will you be seeking in this proceeding any of the relief which is sought in the Federal Circuit Court proceeding?

MR KNOWLES: Yes, insofar as it relates to the Authority’s decision, your Honour, but obviously if this proceeding went forward and the plaintiff was successful, then the plaintiff would obviously not proceed with the Federal Circuit Court proceeding, but on the other hand, if the plaintiff were unsuccessful in this proceeding, the plaintiff would then seek to run the arguments in the Federal Circuit Court which are different to those which it would put in this case as to why the Authority’s decision was affected by jurisdictional error and relief should follow in respect of the Authority’s decision alone.

HIS HONOUR: What is the difference between the delegate and the Authority’s alleged jurisdictional error?

MR KNOWLES: I am sorry, your Honour, what is the difference between the delegate and the Authority’s alleged jurisdictional error?

HIS HONOUR: Yes.

MR KNOWLES: In the case of the delegate, the allegation is that there was a failure to comply with the codified natural justice requirements of the Act.

HIS HONOUR: Section 57.

MR KNOWLES: Indeed.

HIS HONOUR: Yes.

MR KNOWLES: And in the case of the Authority, in this proceeding at least, it is put that by virtue of there not being a lawful decision made by the delegate, there is an impact on the validity of the Authority’s decision. This is a case, given the nature of the review power of the Authority, in which long-held views about merits review will not necessarily apply, those views being expressed in cases such as Brian Lawlor Automotive where it was held, for instance, your Honour, that the mere fact of a decision being made, regardless of its legality, will be enough for merits review jurisdiction to be enlivened.

HIS HONOUR: Well, the two are closely related, are they not?

MR KNOWLES: That is true in this case. In relation to the matter that would be run before the Federal Circuit Court that is presently there, it is a completely separate and different argument. So the argument that is advanced to impugn the Authority’s decision there will – and it has not been put in an amended application at the present time because the orders for doing so have not fallen due - the time for providing an amended application in the Federal Circuit Court is 28 days before the hearing and the hearing has not been fixed.

But the argument as presently framed for the Federal Circuit Court rests on the following factual circumstances, that the delegate made a finding which was intrinsically favourable to the plaintiff’s case. The finding was that the plaintiff had left Iran unlawfully and that would affect how he would be treated upon his return. The Authority without notice to the plaintiff on the review made a different finding, a finding that was disadvantageous to the plaintiff that the plaintiff had left Iran lawfully.

Now, the question is obviously there are statutory provisions that relate to the nature and content of procedural fairness obligations owed by the Authority to the plaintiff; the question is how do those provisions interact with the factual scenario that I have just outlined to your Honour. Now, in a different statutory framework, that type of scenario would give rise to jurisdictional error. That different statutory scenario is the one contemplated by this Court in the matter of SZBEL where the relevant provision was section 425 which related to the obligation to invite a person to a hearing, that obligation being owed by the then Refugee Review Tribunal.

Now, obviously there is no right under the Act akin to that, but the question that would be addressed in the Federal Circuit Court would go to that interplay between the statutory regime applying to the Authority’s decision-making power and that factual scenario that I have outlined to your Honour. As your Honour can see, it is a matter that is confined strictly to the Authority’s decision-making power. It is a matter that we say can and should be dealt with by the Federal Circuit Court in due course.

It may be that the appropriate course for my client to take is to seek that the matter in the Federal Circuit Court be adjourned, pending the outcome of this matter, and if it were the case that this matter was successful for the plaintiff, then the Federal Circuit Court proceeding would be discontinued at that point in time.

HIS HONOUR: Is that the way to go or would it be better to consolidate it all into one proceeding, deal with the parts that can only be dealt with in the High Court first and then remit the remainder back to the Federal Circuit Court?

MR KNOWLES: We accept that that is another option.

HIS HONOUR: Would that be less attractive, less practical?

MR KNOWLES: In some ways it may be less attractive in one sense, and we assume that the lack of opposition to an extension of time would extend to that argument being brought before this Court such that if it were remitted ultimately to the Federal Circuit Court no issue would be taken by the Minister in terms of time limits.

HIS HONOUR: I would assume so too.

MR KNOWLES: Yes. But otherwise, the only lack of attraction to that scenario is that there would need to be things done now to bring it before this Court where it would ultimately lead to a scenario where, if the plaintiff were unsuccessful in this Court, we would be back to square one where we already are.

HIS HONOUR: I see.

MR KNOWLES: The only other thing I can say, your Honour, is that in the Federal Circuit Court the matter has not been listed for hearing. It may not be listed for hearing for some time. It may be that in the intervening period of time the law changes in some way that provides some basis upon which the case could be argued alternative to that which I have just outlined to your Honour.

HIS HONOUR: One can only hope.

MR KNOWLES: Well, certainly for my client’s sake, indeed. But otherwise, your Honour, I accept that that is an alternative. It is less attractive to my client - - -

HIS HONOUR: But the only thing between you and the Commonwealth is that they want you to, what, discontinue the Federal Circuit Court proceeding or have it stayed pro tem or what?

MR KNOWLES: I believe that they, according to the written submissions at least, seek that we discontinue it and we would assume that the consequence of that would be that we would then seek leave to amend the application to bring in the argument to which I have just referred. It may be that there is no opposition to that but, as I say, that is the less attractive option for my client. We would prefer to leave things as they presently stand.

HIS HONOUR: On the basis that, if you can, you will park the Federal Circuit Court action for the time being.

MR KNOWLES: Absolutely, your Honour. We would seek to enter into consent orders along those lines that it be adjourned to some date to be fixed or otherwise stayed even.

HIS HONOUR: Very well, thank you. Thank you very much, Mr Knowles.

MR KNOWLES: Thank you.

HIS HONOUR: Mr Markus?

MR MARKUS: Yes, your Honour. Your Honour, our written submissions have been prepared on the incorrect assumption that the plaintiff intended to discontinue the Federal Circuit Court proceeding. Our position is summarised in paragraph 7 of our written submissions. We have a concern at the level of principle in a party commencing and maintaining two different proceedings relating to the same matter in two different courts. Ordinarily - - -

HIS HONOUR: I do too, but is it not necessary because of the legislation? He cannot get - - -

MR MARKUS: Not in this case.

HIS HONOUR: Can he get - - -

MR MARKUS: Not insofar – I am sorry, your Honour.

HIS HONOUR: Not at all, you go ahead.

MR MARKUS: Not insofar as the decision of the Authority is concerned. The decision of the Authority is reviewable by the Federal Circuit Court and, indeed, that is what is being done in the Federal Circuit Court proceeding. It is not, in my respectful submission, a case that is analogous to those series of cases where the jurisdiction of this Court or the jurisdiction of courts was necessarily bifurcated because of Part 8 of the Migration Act as it was some time ago.

HIS HONOUR: Let us just look at that for a moment in practicalities. So far as the plaintiff’s claim for relief on the basis that the Authority made no lawful decision is concerned, do you say that there is jurisdiction in the Federal Circuit Court to hear it?

MR MARKUS: Yes.

HIS HONOUR: So far as the plaintiff’s claim that the delegate failed to comply with section 57 is concerned, do you say that there is jurisdiction in the Federal Circuit Court to hear it?

MR MARKUS: No.

HIS HONOUR: As far as the argument that the Authority erred in making a finding as to immigration from Iran contrary to the applicant without affording the applicant an opportunity to support the finding of the delegate in that respect, do you say that that is cognisable in the Federal Circuit Court or not?

MR MARKUS: It is, your Honour. I should say that that is not a ground at this stage as reflected in any document but Mr Knowles has informed me of that proposed argument last night.

HIS HONOUR: So the only thing that the Federal Circuit cannot deal with is the delegate’s failure to comply with section 57 and thus the Authority acting unlawfully by reason of that?

MR MARKUS: That is correct. Your Honour, if I could just say this: our position ultimately is this. We would not want to be seen to consent to an enlargement of time in circumstances where we apprehend there is at least a serious question as to whether that would create a situation where either this or the Federal Circuit Court process amounts to an abuse of the court’s process, and also I suppose we would not want to be in a situation where we could not make a submission in the Federal Circuit Court if it came to that, that it ought not exercise its jurisdiction either because of some form of estoppel or abuse of process but, your Honour - - -

HIS HONOUR: Sorry, just pausing there, what is the apprehended abuse of process or ground of estoppel?

MR MARKUS: Well, if the proceeding in the present case seeks orders in relation to the decision of the second defendant Authority, then arguably there is at least a question of Anshun estoppel that may arise in relation to any proceeding in the Federal Circuit Court where the same relief is sought.

HIS HONOUR: There has been no determination of that yet, though, in the Federal Circuit Court, has there?

MR MARKUS: I am sorry, your Honour?

HIS HONOUR: There has been no determination of that issue as yet in the Federal Circuit Court.

MR MARKUS: No, no, I was simply making the point that assuming that the plaintiff fails in this proceeding and wishes to then proceed with the Federal Circuit Court proceeding, we may wish to make a submission to the Federal Circuit Court that it not proceed with the hearing of that matter and we would not want to be in a position where our consent to an enlargement of time would be relied upon as conduct inconsistent with what we may wish to do down the track.

HIS HONOUR: Is the best way to - - -

MR MARKUS: It is a matter for the plaintiff whether he wishes to - - -

HIS HONOUR: No, no, let us just work with the practicalities. Is the best way then to deal with it to consolidate it all into one proceeding here, deal with the matters that can be dealt with here and then remit the.....back to the Federal Circuit Court?

MR MARKUS: That would be one way, your Honour.

HIS HONOUR: Would that get over your problem?

MR MARKUS: That would get rid of our problem, yes, your Honour, and it would also be a question, I suppose, which is a matter for this Court as well as the parties, but the issue that Mr Knowles foreshadowed as the ground that he in particular or his client in particular wishes to raise in the Federal Circuit Court, also appears to me to be of some significance, and it may be that we would be quite keen to try to incorporate that ground if this Court is prepared to deal with it in a special case.

HIS HONOUR: Well, if the Commonwealth is of the view that it is of such general public importance as to be dealt with in this Court, and subject to being satisfied of that, then I should think so, yes.

MR MARKUS: Well, your Honour, I am saying this without instructions, but because I had this conversation about the ground late yesterday with Mr Knowles. But it seems to me that it is certainly an issue that is of significance for the fast track regime that is a fairly new part of the Act and would be, I think, of some significance and interest to my client.

HIS HONOUR: Well, may I say this, Mr Markus. That being so, it is I think important that you and Mr Knowles agree as quickly as is possible as to what is going to go into the High Court proceeding, what is going to remain in the Federal Circuit Court proceeding and whether it is necessary to consolidate the two into one proceeding to avoid any possibility of allegations of Anshun estoppel at a later point in one or other of the proceedings. I think that should be capable of being done, at least I would

hope so, within the space of the week and you could come back here this time next week at which stage we could make orders to expedite it. Would that be appropriate?

MR MARKUS: That would be appropriate, your Honour.

HIS HONOUR: Thank you very much, Mr Markus, that is of great assistance. Mr Knowles, would that appeal to you?

MR KNOWLES: We are content with that, your Honour. We are happy to have discussions with the representatives of the first defendant in that regard. The only thing I should say is that if the matter were the subject of some consolidation, the concern is that my client is effectively relinquishing the rights that would have otherwise applied to have the matter heard not only in the Federal Circuit Court but then in the Federal Court and then to this Court and there perhaps curtailed if the matter were to be consolidated such that everything were to be heard in this Court as soon as possible.

HIS HONOUR: Well, as much as can be heard in this Court.

MR KNOWLES: Yes.

HIS HONOUR: I am not disposed to deal with matters that can properly be dealt with in the alternative by the Federal Circuit Court on a factual basis, such as the emigration from Iran, unless it is necessary to do so in order to avoid Anshun or other such considerations.

MR KNOWLES: Yes, well, hopefully there can be some agreement reached in relation to that issue, but otherwise we are content to have the matter returned before your Honour within a short space of time.

HIS HONOUR: I would only adjourn it on that basis if I could be relatively sure that there is going to be some serious action undertaken within the next week with a fair probability we will come back with an agreed position.

MR KNOWLES: Yes.

HIS HONOUR: I take it I can proceed on that basis.

MR KNOWLES: Yes, your Honour, yes.

HIS HONOUR: Thank you. Gentlemen, all I shall do now is adjourn the further hearing of this matter to next Wednesday, 22 February 2017 at 9.00 am in the hope that by then you can agree upon the basis of procedure, otherwise we will deal with it further at that stage.

MR KNOWLES: If your Honour pleases.

HIS HONOUR: I reserve each party’s costs of the day.

MR KNOWLES: If your Honour pleases.

AT 10.15 AM THE MATTER WAS ADJOURNED