KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCATrans 20 (11 February 2021)

Last Updated: 24 February 2021

[2021] HCATrans 020

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M65 of 2020

B e t w e e n -

KDSP

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

Office of the Registry
Melbourne No M95 of 2020

B e t w e e n -

KDSP

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Defendant

GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 FEBRUARY 2021, AT 2.22 PM

Copyright in the High Court of Australia

____________________

GORDON J: Consistent with the practice of the High Court during COVID I will announce appearances, if I may.

MS L.G. DE FERRARI, SC with MR M.W. GUO for the applicant in M65 and the plaintiff in M95. (instructed by Victoria Legal Aid)

MR P.D. HERZFELD, SC with MR G.J. JOHNSON for the respondent in M65 and the defendant in M95. (instructed by Sparke Helmore)

GORDON J: Ms De Ferrari.

MS De FERRARI: Thank you, your Honour. Your Honours, there are two special leave questions. They relate to the two grounds of the appeal below and they are pressed as grounds of appeal here. I propose to start with the ground about the power is time limited which is the second ground. I accept that it logically follows in terms of consideration from the first ground because if the first ground were upheld then the power is not available at all whereas this ground is a ground that says the power ceases to be available after a certain amount of time.

Now, in respect of this ground, the Minister disputes that there is a question of special importance. The Minister does not dispute and, therefore, I take it the Minister accepts that a question of public importance arises in respect of the first ground, the BAL19 ground that is referred to in the submissions.

In our submission, the public importance of the ground is apparent both from the clear importance that the Minister himself assigns to this unilateral ability to overturn a decision of the AAT – and it is a power that has been exercised on many an occasion. It is not a rare case for the Minister to exercise the power. The broader importance as well is what precisely is the implication of a time which the authorities tell us is to be done in the case where no time is specified. How is that exercise to be conducted?

GORDON J: Can I ask a couple of questions about that submission, Ms De Ferrari? It is, in effect, a question about utility in this sense. The remedy for delay, if there is one, is mandamus which your client could have brought and could bring. So, in a sense, the idea that there is some general principle that this Court could espouse is itself difficult given the nature of the power, the fact that there is a remedy available and three, that it is fact specific.

MS DE FERRARI: Your Honour, if I can actually take it from the starting proposition, namely that there is a remedy available, your Honours will know that that is how Justice Bromberg proceeded. Notably, a point I was going to make, their Honours Justice O’Callaghan and Steward did not decide that question. They proceeded to jump straight into an analysis of the reasonableness of the explanation that had been offered by the Minister.

But the first question really presupposes that mandamus would go, and that, as we said in the reply, there is a very large issue which has never been determined by any court, not this Court, but also not the Federal Court and certainly not the Federal Circuit Court at all, about what is the interrelationship between sections 47 and 65 on the one hand, and sections like 501 and 501A, because we do not accept for our part that mandamus goes in respect of 501A.

Section 501A just comes in the mix of what we say is the only duties found in section 47 and 65 by that proviso which asks the Minister, when exercising the duties in section 65 to either grant or refuse, to consider whether there is a prevention on grant – not a criterion, mind you, which is how Justices O’Callaghan and Steward analysed section 501A, but something in some other law that prevents the grant of a visa. Now, the question that ‑ ‑ ‑

GORDON J: Can I ask a second question then, which is probably the first question really, and that is given the conduct and the facts here, is there any basis to even contend that we need to address that question? As I understand the facts there is at the most on the findings one or two months between each of the steps.

MS DE FERRARI: Well, your Honours, we would put ground 2 in this way - accepting that there is to be a real implication as to some time, the question that is one of statutory construction as to what that time really should be.

EDELMAN J: That is not a question of statutory construction. Once you accept that a reasonable time is implied, whether or not mandamus is available never arises if, on the application to the facts before us there was a reasonable – a reasonable time requirement was satisfied.

MS DE FERRARI: Well, your Honour, “reasonable time” is a phrase that has come about in judicial statements. But really the question is – we would put the question as, is there a time limitation and then you look at the statute, and you do not answer saying at a reasonable time, because looking at the statute, and in particular in this context section 501A, which has some extraordinary characteristics, we would say that the implied time limitation that you are reading would be as soon as possible.

I mean the person is in detention. The person has the benefit of a favourable decision of the AAT. You do not answer by saying what a reasonable time as if that immediately leads into the question of like is there a reasonable explanation for what has happened. You look at what, exactly, is a time limitation. Why should it not be as soon as possible? If the answer is as soon as possible, then you do not look at whether there is two months between one step or the others, you look at whether the steps are even adequate to explain the delay at all.

Why should this not have been done, given that the only purpose was to determine whether to refuse the grant of the visa, allegedly, and given what this Court has said about how detention in those circumstances is only authorised for that purpose to consider whether to grant or refuse a visa. Why should one not read that superpower of the Minister overturning a fatal decision of the AAT to say, well, the Act has provided that you have to do it personally, but that does not mean that you can take your time and get all the briefs that you possibly want and change your position in terms of the direction. The Act requires you to do it as soon as possible which, really ‑ ‑ ‑

EDELMAN J: Ms De Ferrari, there are many, many, many examples of statutes which require something to be done and an implication is made that that thing must be done within a reasonable time. Are there any examples to which you can direct our attention where the implication is made that it – not that it be done within a reasonable time, but that it be done as soon as possible?

MS DE FERRARI: Your Honour, because the question, we would say, and I apologise if I put it badly, is that a reasonable time is just a phrase that in the context of construing the statute requires to sort of say what is reasonable? Is it reasonable if you only do it as soon as possible or is it reasonable if you then, just by an omnibus, reasonable person observer that then looks at how, if ever, the Minister gets to satisfy its own - what is it, 13‑month delay?

GORDON J: Well, I think what we are putting to you is two questions. One is, are there any provisions that have been construed in this way in the way you would have us look at this provision and, secondly, why is it not that here we are dictated to by the findings made and the explanations given in relation to the 13 months?

MS DE FERRARI: Yes, your Honour, because no one except Justice Bromberg, certainly not the judge at first instance, certainly not the plurality in the court below, certainly no other court, Full Court or single judge, has ever looked at how you construe the reasonableness, how you consider the implication of time in this particular statutory context?

GORDON J: Because it is fact specific – the problem is because it is fact specific.

MS DE FERRARI: No, your Honour, it ‑ ‑ ‑

GORDON J: That is the difficulty.

MS DE FERRARI: No, I do not accept that, your Honour. It is because it is statute specific. The problem is there is no other Act that I am aware of where the consequences of a reasonable - a period left at large to then look at factually what is reasonable have the consequence that in the meantime the person is deprived of their liberty. I am not aware of any such statute.

EDELMAN J: I mean, you may be entirely right, Ms De Ferrari, but what is reasonable in relation to one particular context, where there are no pressing interests, no urgency, very little at stake, may be very different from what is reasonable in another context. But it is highly dependent upon the particular facts, is it not?

MS DE FERRARI: But, your Honours, neither the judge at first instance, nor the plurality, undertook the statutory construction consideration of what is reasonable. All they did was looked at whether any period by the Minister was such that.....show delay that is capricious. That is not the test (a) generally - certainly we do not accept that that is a test, and (b), it puts the cart before the horse, with respect, because if you just start by saying, well, I am just going to look at whether, as I said, as a reasonable lay bystander, I am prepared to accept an explanation that it took someone three months to prepare a brief, that is just not looking at the context and the context would have sort of said, why should I, at all, even accept that there could be a reasonable explanation for taking two months to prepare a brief?

GORDON J: I think we have heard you in relation to this ground, Ms De Ferrari. Do you want to say anything in relation to proposed ground 1?

MS DE FERRARI: Yes, your Honour. In respect of proposed ground 1, the Minister does accept that it raises a question of public importance. We would say it clearly does. There are many cases – there is another special leave that I mentioned was withdrawn that addressed the same points. The question really is not answered satisfactorily by any of the various analyses that have been provided.

GORDON J: I missed that last submission. It is not answered by - what did you say?

MS DE FERRARI: By any of the reasonings of, we say, satisfactorily. I know it is answered. We say they do not grapple, any of the reasonings either in the court below or in the related judgment by the five-judge Bench.

GORDON J: Are you referring to BFW20?

MS DE FERRARI: I am, your Honour, yes. What is the proper construction? Again I go back to the point that I already made in the context of addressing the Court on the second question and that is there is no analysis at all about how sections 501 and 501A after the enactment of section 36C, come to be engaged at all by section 65. Now, there is a complete divergence of opinion about that question and really there is only ‑ ‑ ‑

GORDON J: Is the divergence only Justice Rares?

MS DE FERRARI: Justice Rares versus Justice Lindgren. They are the only two authorities. Justice Bromberg followed Justice Rares and really we say - and we have gone back and looked at the history of this prevented by – and it has an interest in history, legislative history that goes back to before the 1994 reform project, how it came about.

It is of course our position, we say, your Honour, that prevented by is only ever engaged by the Minister exercising the powers under section 37 and 65, so exercising discharging the duties under section 37 and 65, if there has already been factually something of a decision refusing the grant of a visa.

Now, it is accepted that refusal under section – it is accepted by us but I think it is disputed by the Minister, that refusal under section 501A is another power, a little bit like 91W, by which the duty of section 47 might be brought to an end, but it is not accepted that within section 65 you stop at that proviso in (iii) and then you wait forever to see whether someone other than you is going to make a decision under section 501 or 501A to refuse the visa.

EDELMAN J: Ms De Ferrari, do you accept that prior to 2014 this power was available under section 501?

MS DE FERRARI: Well, your Honour, the Court’s judgment in M47 is not really as clear as one might say. In our submission, there is no plurality of reasoning as to where the power – I withdraw that. I am assuming your Honour is referring to section 36C versus section 501.

EDELMAN J: Yes, the introduction of it in 2014.

MS DE FERRARI: Yes. As I say, the section ‑ the only decision is the decision of this Court in M47, but saying that the power there was available in section 501 came about - and there was not a majority of their Honours that said it was section 501 that gave the statutory power to deal with the obligations under Articles 32 and 33 of the Convention. Your Honours might recall that, for example, Justice Kiefel, as her Honour then was, thought that it was an implied power.

So, there is no clear ratio in M47 that 501 was to be once and for all the power to give effect to what is now section 36C. But more than that, your Honours, there clearly is nothing in M47 that dealt with 501A, which is the provision that we are dealing with.

GORDON J: Can I ask a direct question? What is wrong with the construction set out by the relevant judges in BFW20 at paragraphs 120 to 147?

MS DE FERRARI: Yes, your Honour. It puts at nought the intent of Parliament that it was codifying Australia’s obligations as it saw fit. We are not saying it had to codify them as a particular interpretation of the Refugees Convention but it was codifying Australia’s non‑refoulement obligations. It did that in section 36C. That would put it completely at nought but then having this - in 501 this other discretionary power completely outside the scheme of the Act in sections 47 and 65 for the Minister to exercise – at a whim, really – whether the person, not being of fit character, should have the visa refused.

I should say that in all of these cases, your Honour, there seems to be some issue about – well, there are various materials about the.....satisfied, the Minister.....and so on. There is never any doubt – given how subsection (c) of section 501 is now drafted. There is never any doubt that the person would never, ever again pass a character test.

So, all it needs is a discretion at large to the Minister to – in the case of 501A – to overturn the finality of the IAT’s decision in respect of 501 – which found it should not be applied against the applicant – assuming that 501 was valid – a power to overturn that in the context of Parliament having said, whatever this Court might have found to be a statutory basis of M47, that the statutory basis for dealing with non‑refoulement obligations versus serious crime is now to be found in section 36C.

That is what is wrong with that analysis, your Honour. It is just a completely de‑contextualised analysis. It does not have regard to how sections 47, 65 interrelate with sections 51 and 501A. It especially does not do so after the insertion of section 36C. It is no answer to sort of say, there is no problem generally with having two powers achieve the same object. First of all, they do not achieve the same object because 36C actually achieves the object of Australia engaging in its obligation under the Convention and section 501 – after the enactment of 36C – not an issue before this Court in M47 – section 501 is simply.....discretion to do otherwise than engage with the Refugees Convention Articles 32 and 33.

GORDON J: We do not need to hear from you, Mr Herzfeld.

There is no reason to doubt the correctness of the conclusion reached by the Full Court of the Federal Court of Australia in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his litigation representative, BFW20A, medium neutral citation [2020] FCAFC 21, and by the Full Court of the Federal Court in the decision the subject of the application for special leave to appeal. The application, otherwise, does not have sufficient prospects of success. The application for leave to appeal is dismissed. Do you seek costs, Mr Herzfeld?

MR HERZFELD: We do, your Honour.

GORDON J: With costs. Ms De Ferrari, in relation to M95 of 2020, the Court is minded to vacate the hearing of that application for the constitutional or other writ and relist it for hearing before a single Justice on a date to be fixed by the Court. We propose that for a couple of reasons. One, it will enable you to revisit the application in light of the refusal for the application for special leave in M65. Do you wish to say anything about that proposed course?

MS DE FERRARI: No, your Honour, save that there is a dispute as to whether the Minister has provided all the relevant documents so we would wish to agitate that as a.....matter in that application.

GORDON J: Right. Then, what I would propose to do is, I think, make those two orders and that will leave you with, in effect, the ball in your court to take whichever step you need to take in relation to that application before a single Justice. Do you have any objection to that course?

MS DE FERRARI: Could your Honour repeat what the two orders might be?

GORDON J: I am so sorry. The orders will be, vacate the hearing of the application for a constitutional or other writ. Second, relist the application for a constitutional or other writ before a single Justice on a date to be fixed by the Court. That will give you time to do two things. You can either revisit your application in substance or take any other step you seek to take.

MS DE FERRARI: Yes, your Honour, we will file the.....summons if we cannot get them to provide the documents. I have no objection to those two orders.

GORDON J: Mr Herzfeld, do you have any objection to those orders?

MR HERZFELD: No. As your Honours heard, there may need to be the resolution of an interlocutory dispute first but that seems to be accommodated in the orders which your Honour has proposed.

GORDON J: We have no application in front of us to deal with that application, so it is not before the Court at the moment?

MR HERZFELD: No, your Honours.

GORDON J: Thank you. So, in M95 of 2020, the orders of the Court will be as follows.

1. Vacate the hearing of the application for a constitutional or other writ.

2. Relist the application for a constitutional or other writ before a single Justice on a date to be fixed by the Court.

Thank you, counsel.

MR HERZFELD: Thank you, your Honours.

GORDON J: Adjourn the Court please to Friday, 12 February, at 9.30 am.

AT 2.45 PM THE MATTERS WERE CONCLUDED