Falzon v Minister for Immigration and Border Protection [2017] HCATrans 84 (11 April 2017)

Last Updated: 19 April 2017

[2017] HCATrans 084

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S31 of 2017

B e t w e e n -

JOHN FALZON

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON TUESDAY, 11 APRIL 2017, AT 9.27 AM

Copyright in the High Court of Australia

MR D.P. HUME: May it please the Court, I appear for the plaintiff. (instructed by Zali Burrows Lawyers)

MS A.M. MITCHELMORE: If the Court pleases, I appear for the defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: Mr Hume, I have read the submissions of the parties. I am minded to make the order for the extension that you seek. I hope to give some brief reasons for that in due course. I am also minded to make the directions that Ms Mitchelmore has outlined in her submissions, subject to anything you have to say about that. One thing I should say about it is that I was minded to bring the matter back for a mention after the date for the filing of the application book, which I assume will be in the form of a special case by the parties pursuant to rule 27.08.

I was minded to bring it back because of the possibility that there may be some dispute about the facts but, on reflection, I am probably being unduly pessimistic about that because there does not seem to be much room for argument about any facts that seem to be relevant here.

MR HUME: Yes.

HIS HONOUR: Would I be unduly pessimistic in taking the view that we need to bring it back?

MR HUME: I do not apprehend there will be any dispute as to the facts. It may be convenient to have a marker for a directions hearing but that can be vacated if there is, as I hope, no dispute.

HIS HONOUR: I thought about that myself, but having thought about it, I thought about it again, and maybe the provision for liberty to apply covers the problem. Obviously, the parties appreciate that if there is a dispute about the facts the question of remitter might need to be revisited, but I think that that is a sufficiently unlikely eventuality, that we can probably just rely on the parties to bring it back if necessary under the provision for liberty to apply.

MR HUME: Yes, I think that is so, and I should say that – two points. First, we do agree with the orders proposed by the Minister in paragraph 9 of his submissions. Secondly, if your Honour is minded to have the facts proceed by way of a special case book, Ms Mitchelmore informs me that it will need to come back to be referred – to have the special case referred to the Full Court. So that may make it – if it is going to be by way of special case, that may make it convenient to in fact have a mention listed after the time for order to - - -

HIS HONOUR: If it is not done by special case how is it proposed to get the facts before us? I am not trying to be difficult, I am just curious.

MR HUME: No. The way that we proposed was simply to have the application to show cause referred, based on an application book – referred today. So that was the vehicle proposed by the parties.

HIS HONOUR: Yes. What facts are in there and how are they in there? Or how are they to be put in there?

MR HUME: So the order proposes an agreement between the parties. At the moment I am not - what I had in mind was that we would have - as in the case of a challenge to an administrative decision, we have the material before the decision-maker. Now, as it turns out, that may not actually be of significant relevance in the proceedings - - -

HIS HONOUR: Quite.

MR HUME: - - - since the issue is essentially legal. It may be that we either have the material before the decision-maker or we have nothing. That will be a matter for agreement between the parties and if - - -

HIS HONOUR: Well, you probably need to have the decision just to create the list and perhaps the material before the decision-maker to make that real and concrete.

MR HUME: I think that is so.

HIS HONOUR: If that is all there is, and Ms Mitchelmore is content with that, then we can probably dispense with any provision for a special case.

MR HUME: Yes.

HIS HONOUR: Ms Mitchelmore, can I take it that you are content with this course?

MS MITCHELMORE: Yes, your Honour. Presently before the Court there is an affidavit of Ms Burrows which accompanied the application. I understand from paragraph 2 of that affidavit that Ms Burrows was missing some material in terms of the material that accompanied the original decision to cancel. So, obviously, that can be supplemented but – I am told by Mr Hume that they now have that material. So, subject to all of that material going into the application book, the Court would have the material that was before – was relevant to both decisions and that would be sufficient to address the issues that are raised on the application to show cause which would then be referred.

HIS HONOUR: All right.

MS MITCHELMORE: If the Court pleases.

HIS HONOUR: Well, I am content with that. Thanks, Ms Mitchelmore. Mr Hume, is there anything else that you need to raise in relation to the directions?

MR HUME: No, nothing else, thank you, your Honour.

HIS HONOUR: All right. Well, if you just take your seat. I need to give some brief reasons about the application for the extension.

On 10 March 2016, the Minister decided to cancel Mr Falzon’s visa pursuant to section 501(3A) of the Migration Act 1958 (Cth) (“the Act”). Shortly thereafter, pursuant to section 189 of the Act Mr Falzon was taken into detention where he remains. On 15 March 2016, Mr Falzon sought to have the cancellation of his visa revoked under section 501CA of the Act. On 10 January 2017, the Minister decided not to revoke the cancellation.

On 14 February 2017, Mr Falzon commenced proceedings in the original jurisdiction of the Court, seeking a declaration of section 501(3A) of the Act as invalid, the quashing of the cancellation decision and the non-revocation decision and mandamus compelling his release from detention.

Section 501(3A) of the Act obliges the Minister to cancel a visa if the Minister is satisfied that a visa holder does not pass the character test because of his or her criminal record. On behalf of Mr Falzon it is contended that section 501(3A) is invalid because it purports to confer the judicial power of the Commonwealth on the Minister.

By summons filed on 14 February 2017, Mr Falzon seeks directions with a view to the matter being heard and determined by the Full Court. As a first step in this regard, he seeks an extension of time for the bringing of his challenge to the cancellation decision. The extension of time sought is necessary because section 486A(1) of the Act required the application in relation to the cancellation decision to be brought within 35 days of the decision. An extension of time is authorised by section 486A(2) of the Act upon an application made:

specifying why the applicant considers that it is necessary in the interests of the administration of justice to –

order the extension sought and the Court:

is satisfied that it is necessary in the interests of the administration of justice to make the order.

I am satisfied that it is in the interests of the administration of justice to order the extension sought. It appears that the time between the cancellation decision and the commencement of the current proceeding was taken up with Mr Falzon pursuing his attempt to have that decision revoked. In this regard, he acted promptly and the Minister took more than nine months to decide whether to revoke the cancellation decision.

It does not appear that there would be any prejudice to the defendant if the extension were granted. Mr Falzon’s challenge to the non-revocation decision was brought within time and similar issues in relation to the validity of section 501(3A) would arise on the challenge to the cancellation decision as would be agitated in the challenge to the non-revocation decision. The defendant does not oppose the extension of time.

As to the further conduct of these matters in this Court, the defendant is agreeable to the matter proceeding to a hearing by the Full Court. Neither party contends that the matter should be remitted to another court. Whether or not the matter should be remitted to another court depends on whether any issue of fact arises requiring determination. The parties do not anticipate that any issue of fact will arise. Should the parties’ expectation in this regard be disappointed, the possibility of remitting the matters to another court would be reviewed.

I therefore make the following orders:

1. The time for the making of an application by the plaintiff in relation to the decision of the defendant, dated 10 March 2016, to cancel the plaintiff’s visa be extended under section 486A(2) of the Act until 15 February 2017.
   
2. On or before 26 April 2017, the plaintiff is to file and serve an application book containing such documents relevant to this application as have been agreed between the parties and in accordance with an index settled by the Registry.
   
3. On or before 10 May 2017, the plaintiff is to file and serve written submissions prepared in accordance with rule 44.02 of the Rules.
   
4. On or before 7 June 2017, the defendant is to file and serve written submissions prepared in accordance with rule 44.03 of the Rules.
   
5. On or before 21 June 2017, the plaintiff is to file and serve any written submissions in reply prepared in accordance with rule 44.05 of the Rules.
   
6. Any intervener is to file and serve written submissions within seven days after written submissions by the party in support of whom the intervention is to be made are filed, such submissions to be prepared in accordance with rule 44.04 of the Rules.
   
7. The application is to be referred to a Full Court for hearing on a date to be fixed.
   

8. There be liberty to apply on two days’ written notice.

9. Costs reserved.

Anything further, Mr Hume?

MR HUME: Nothing further.

HIS HONOUR: Ms Mitchelmore?

MS MITCHELMORE: No, your Honour.

HIS HONOUR: Very well. Adjourn the Court.

AT 9.39 AM THE MATTER WAS ADJOURNED