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Cohen, Ex parte - Re Minister for Immigration and Multicultural Affairs and Ors S166/2000 [ 2000] HCATrans 617  (18 October 2000)

Sydney No S166 of 2000

In the matter of -

An application for Writs of Prohibition, Mandamus, Certiorari and Injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

JULIE BAIL, Member of the Migration Review Tribunal

Second Respondent

SUE TONGUE, Principal Member of the Migration Review Tribunal

Third Respondent

Ex parte -

MEIR COHEN

Prosecutor

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 18 OCTOBER 2000, AT 10.02 AM

Copyright in the High Court of Australia

MR D.C. RANGIAH: If it please the Court, I appear for the prosecutor. (instructed by Dominic David Stamfords)

MR R.T. BEECH-JONES: If the Court pleases, I appear on behalf of the first respondent. (instructed by the Australian Government Solicitor)

HIS HONOUR: I have a certificate from the Deputy Registrar in which she says that she has been informed by the solicitor for the second and third respondents, Julie Bail, a member of the Migration Review Tribunal, and Sue Tongue, the principal member of the Migration Review Tribunal, that they do not wish to be represented at the hearing of this matter and will submit to any order of the Court save as to costs. Yes, Mr Rangiah.

MR RANGIAH: Your Honour, I read the affidavit of Suzy David filed on - - -

HIS HONOUR: You can take it that I have read it. Both of you are no doubt more familiar with these regulations than I am, but how does it come about that the special need relative provision is still in operation or applies to this action?

MR RANGIAH: Your Honour, that arises from some transitional - - -

HIS HONOUR: I know that and I see that that is what you say in your submissions and regulation 5(5) of Statutory Rule 259 says that:

If an application for a visa of one of the following classes was made before 1 November 1999, but was not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958 ) before that date, the Migration Regulations 1994, as in force immediately before 1 November 1999, continue to apply -

and one of the designated visas is "Family (Residence) (Class AO)". That is what you rely on. There may have been a hiccough here, but the provision in relation to special need relative was not in force as of 1 November 1999 and that was because, so it seems to me at the moment, Statutory Rule 306 of 1998 deleted that concept as from 1 December 1998. Can I hand both counsel a copy of it.

If you look at 306, it was dated 27 October 1998 and you look at clause 3:

Schedule 1 amends the Migration Regulations.

Then Schedule 1:

[1] Regulation 1.03, definition of special need relative -

is omitted. I should have mentioned that Regulation 2 said that:

These regulations commence on 1 December 1998.

At the moment, unless you can enlighten me, it would seem that between the time that your client filed his application and 1 November 1999 clause 806 was amended with the effect that special need relative subclass of visa was removed and the concept of special need relative was replaced by a statutory scheme structured around the concept of a carer.

What troubles me at the moment are these words "as in force immediately before 1 November 1999". No one seems to have picked up this point and I do not think I am so smart that it would have missed all these other people, but am I overlooking something here? I mean, the Tribunal seems to have acted on the basis that the special need relative subclass was still in existence when it made its decision, but having regard to the terms of Statutory Rule 306 of 1998, it does not seem to me that it was.

MR BEECH-JONES: If I could just indicate what my understanding and perhaps my instructions are, is that I anticipate that, I think at least implicitly, the Tribunal took the view that there was an accrued right, in effect, to have the visa determined in accordance with the criteria as at the date of the application.

HIS HONOUR: That raises another question.

MR BEECH-JONES: That raises a whole Esber - Patty May Lee, I think, where it got to the barrier and then special leave was revoked because the legislation changed.

HIS HONOUR: Yes.

MR BEECH-JONES: It is not a point we seek to take. I do not know if that makes any difference.

HIS HONOUR: I am not going to send off matters to the Federal Court, for instance, if I am engaged in a futile exercise.

MR BEECH-JONES: I may pre-empting or jumping the gun, but it may be that whether it is a futile exercise might be a matter that your Honour can leave to the Federal Court to determine.

HIS HONOUR: That is so.

MR BEECH-JONES: Your Honour, sections 47 and 65 of the Act appear to be the linchpin of your right to have your visa application considered and then determined. I think that the extension of Patty May Lee was about a discretion. This is not a discretion. This is an obligation. So there may appear to be a stronger view that you did have an accrued right to have it considered. I do not make any concession, but it seems to me - that is why we have not taken any point, at least at this stage, on the order nisi. I do not know if that is any assistance, your Honour.

HIS HONOUR: There is no great urgency about this matter, is there, at the moment?

MR BEECH-JONES: No, your Honour.

HIS HONOUR: I think I might adjourn these proceedings to allow each of you to prepare some written argument about this and file some written submissions and the matter can be heard when I am next in Sydney.

MR BEECH-JONES: I am sorry, I did not - my instructions are to concede that the visa criteria considered by the Tribunal was the correct one.

HIS HONOUR: Yes.

MR BEECH-JONES: I do not know - my friend will obviously submit that to your Honour as well.

HIS HONOUR: Yes, but you cannot give this Court or any court jurisdiction by consent.

MR BEECH-JONES: Quite so, but it might not affect jurisdiction though.

HIS HONOUR: It might in terms of what we were going to do with it. If it is a futile exercise in terms of the Court itself dealing with it - I mean, if I thought that the whole proceedings were misconceived, for example, then it would be a matter of whether I could grant an order nisi or a further matter into Court. I know you want to send it off to the Federal Court, but I am not sure whether or not I should, among other reasons, that I have serious doubts about whether it raises any jurisdictional issues under 75(v) of the Constitution. That is a matter that, on one view, can be determined at the Federal Court level.

I would like to have some written submissions, both on whether the special need relative provision is still operative and you may have to give serious consideration as to whether, having regard to the very terms of Regulation 5(5), there is any room for any other provisions to operate, whether or not this is not to be seen as a special provision regulating these applications as opposed to something which you can embrace either under common law concepts of accrued rights or under the Interpretation Act. In addition, I would like to hear some argument as to whether or not this is a jurisdictional matter or merely an error within law.

MR BEECH-JONES: Right. I am conscious of a couple of cases where that issue may be being tossed up again, about whether you can grant an injunction if there is a lower threshold.

HIS HONOUR: Yes. There does not seem to be much room for an injunction here, I would not have thought.

MR BEECH-JONES: Not yet.

HIS HONOUR: No.

MR RANGIAH: Your Honour, I wonder if I might be heard about the course that your Honour has suggested.

HIS HONOUR: Yes.

MR RANGIAH: My instructions are to oppose the remitter of the matter to the Federal Court and, in that event, the point that your Honour makes about whether special need visas still apply will be very relevant to the question of whether you should grant an order nisi, but there is a question of cost for my client and I wonder if your Honour might consider hearing argument on the points that can be argued today followed by written submissions and, if necessary, any oral argument.

HIS HONOUR: One of the problems at the moment is that I do not think there is much that can be said except in respect of the matters that I am dealing with. You raised these questions. I have read your submissions. It seems to me that they raise the question as to whether Huang was correctly decided. If it was correctly decided, that seems to me to be just about the end of your case. If it was not, there is still a question as to whether that constitutes jurisdictional error.

If I am sending anything down, what I am sending down is, in effect, the 75(v) jurisdiction application. So I do not want to send something down which is just futile. I do not think that I should burden the Federal Court with matters if I have a clear view that proceedings are misconceived, but, ordinarily, the matter should go down. This Court should not be burdened with these matters. So I think there is a lot to be said for sending it down and, in fact, what would stop me from sending it down is that I thought that there just was no jurisdiction or the whole proceedings were futile, otherwise I can send it down on my own motion and I would do that.

MR RANGIAH: Your Honour has just identified one area though where I wish to raise some argument and that is in relation to whether the matter ought to be remitted to the Federal Court and there is at least one authority which, in my submission, suggests that the matter should not be remitted in a case where it can affect the substantive rights of the parties.

HIS HONOUR: What authority is that? We remit matters every other day that affects the substantive rights of the parties.

MR RANGIAH: There is a decision in State Bank of New South Wales v Commonwealth Savings Bank of Australia where Chief Justice Gibbs said that:

The purpose of a remitter under s.44 is simply to relieve this Court of the necessity to hear cases that might more conveniently be heard elsewhere.....The Court should not, by making a remitter, alter the rights of the parties.

Aand the right which I am submitting would be altered here is the right to have this matter determined by the High Court in the sense that - - -

HIS HONOUR: But section 44 of the Judiciary Act expressly empowers us to remit things within our jurisdiction. Its whole purpose is to facilitate our work.

MR RANGIAH: I accept that it empowers the Court to do that, but it is a question, in my submission, of whether it ought to do that.

HIS HONOUR: We do it every day of the week and we do it in all sorts of cases: taxation cases, negligence cases, any action against the Commonwealth and migration cases. As far as I am concerned, unless there is something so important and urgent about the matter that it should go to the Full Court of the High Court, then, prima facie, the proper course is to remit it. This Court cannot become a trial court for migration matters.

There are hundreds of special leave applications being filed. The workload of the Court has almost doubled since 1980. We seem to do nothing but read special leave application books. We just cannot cope with these cases.

MR RANGIAH: I accept everything your Honour says but, nevertheless, there is a point which distinguishes this from other migration cases, that is, that my client really has to overcome a decision of the Full Federal Court in order to succeed. The only chance that my client may have of having his argument determined on its merits is before the High Court in the sense that a single judge of the Federal Court may consider himself or herself to be bound by the decision of the Full Court.

The Full Court may consider that the decision is not plainly wrong, although it may be doubtful. It would be difficult to show, or impossible to show, a question of public importance in this case given that, on any view of it, the regulation has been repealed.

HIS HONOUR: Yes, but can I put this against what you are putting. If you had to come up through the findings of the Federal Court, you would be coming up here by way of special leave, would you not?

MR RANGIAH: Yes.

HIS HONOUR: That gives the Court very considerable discretion as to whether it should entertain this matter. You want us to entertain this particular action on the rather low threshold of a case for an order nisi?

MR RANGIAH: Yes.

HIS HONOUR: There does not seem to me much about the case that would warrant the grant of special leave to appeal.

MR RANGIAH: I accept that, your Honour, which is why my client is really forced to adopt the course he has adopted, and it is really to avoid the necessity to comply with the requirements of section 35A of the Judiciary Act, but it is right to say that under the Constitution my client has a right to invoke the jurisdiction of this Court. In the authority that I have referred to it is suggested that the Court should not, by making a remitter, alter the rights of the parties and that is intended to refer to giving one party an advantage over the other in the litigation.

HIS HONOUR: I know, but the two writs that you seek are mandamus and certiorari.

MR RANGIAH: Yes.

HIS HONOUR: Certiorari will only go as ancillary to the writ of mandamus. The writ of mandamus is a discretionary remedy and one well-known ground for refusing mandamus is alternative remedies and you had an alternative remedy to the Federal Court, did you not?

MR RANGIAH: It is arguably an alternative remedy in the sense that at least a single judge of the Federal Court may not have any discretion to grant the relief at all in the sense that it is bound by the - - -

HIS HONOUR: I know, but you could have dealt with these matters under 476, could you not? You could have gone to the Federal Court. Instead you have bypassed the Federal Court and you have come here.

MR RANGIAH: Yes. Your Honour, the reason why I raise these matters now, and the reason why I ask your Honour to hear argument on it, is because if your Honour indicates a particular view at the end of the argument, it may be that the parties need not trouble your Honour any further and can deal with the matter by consent.

HIS HONOUR: How do you mean "by consent"?

MR RANGIAH: By consenting to the remitter of the matter to the Federal Court, which would avoid the necessity for your Honour to hear it again.

HIS HONOUR: Even though the parties consent, I have to make an order and I am not inclined to make an order remitting something to the Federal Court if I think it is clear that there is no jurisdiction to entertain it. It is just a futile exercise. We should not burden the Federal Court with cases if we come to the conclusion that there is no substance in them.

MR RANGIAH: All right. Your Honour, I had prepared an outline setting out the matters on which I relied in relation to the remitter. I do know if there is any point in dealing with that further at the moment.

HIS HONOUR: If you have the outline, hand it to me. Does it go beyond the submissions that you have - - -

MR RANGIAH: It addresses another point concerning the availability of relief in the Federal Court and at least one other decision in which it was arguable that that alternative relief was not available and, therefore, Justice Brennan granted an order nisi. I will hand up my outline.

HIS HONOUR: Have you seen this, Mr Beech-Jones?

MR BEECH-JONES: I have, your Honour.

HIS HONOUR: Yes. Yes, thank you, Mr Rangiah.

MR RANGIAH: Your Honour, the three matters, in my submission, emerge from that passage in State Bank of New South Wales which I have quoted and that is, firstly, that the starting point is that the plaintiff is entitled to choose his or her forum and, secondly, the Court should not affect the rights of the parties by making the remitter and, thirdly, that the purpose of the remitter is for the convenience for the Court and, implicitly, not the parties.

HIS HONOUR: But how do we alter the rights of the parties?

MR RANGIAH: Because of the application of section 35A of the Judiciary Act. If the matter were to be determined through the avenue of an order nisi, my client would not be faced with the hurdle of section - - -

HIS HONOUR: I appreciate that, but let us take an ordinary negligence case against the Commonwealth on a question of fact that comes up here. Are we not to exercise our power under section 44 to remit the matter to the Federal Court because they never get special leave? Does that mean the Court has to hear negligence actions against the Commonwealth if they would not get special leave?

MR RANGIAH: No, your Honour, because this is a peculiar circumstance in that there is a binding decision of the - there is a decision of the Full Federal Court which my client has to overcome in order to succeed.

HIS HONOUR: I understand that, but why should it be assumed that you are going to be any better off here? I mean, you want to reargue the case and - I mean, the fact that you have this decision against you does not seem to me to be a reason why this Court should take on a matter which ordinarily would be dealt with in the Federal Court. If there was no decision in Shan, the matter would just be sent down there as of course.

MR RANGIAH: That is so.

HIS HONOUR: You say, "Well, don't send it down there because there is this decision". Why should you not have to live with it?

MR RANGIAH: Your Honour, because in this particular case the remitter would have the effect of altering the rights of the parties - - -

HIS HONOUR: No, it does not have the effect of altering the rights of the party at all.

MR RANGIAH: In my submission, it does in the sense that it increases the respondent's prospects of ultimately succeeding and reduces my client's prospects of ultimately succeeding.

HIS HONOUR: That is not because of rights. On a special leave application this Court might well think that Shan was wrongly decided, but the reason special leave would be refused would have nothing to do with Shan. It would simply be because the case generally just was not of sufficient importance to warrant the grant of special leave. It would not affect your rights in any way. You might have got a wrong decision. Anyway, I understand what you want to say about it.

MR RANGIAH: Your Honour, can I just put one final argument as well?

HIS HONOUR: Yes.

MR RANGIAH: That obviously when the framers of the Constitution who gave the Court original jurisdiction under 75 promulgated that section, it could not have been contemplated that a provision such as section 35 of the Judiciary Act, or section 44, would result in the exercise of the discretion in such a way that the Court would restrict its ability to hear matters in its original jurisdiction.

HIS HONOUR: Why not? I mean, so far as the special leave provisions are concerned, section 73 of the Constitution specifically provides that the Parliament may limit the grants of special leave. That was decided at a very early stage of the Court's history. So it is hard to say the special leave provisions were not within the contemplation of the Parliament. Right from the very beginning special leave jurisdiction was there. Section 73 of the Constitution says:

The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees and orders -

and, if I remember rightly, in Parkin v James, in the first two or three volumes of the Commonwealth Law Reports, the validity of the special leave provisions was challenged, and the remitter is the product of the bringing into existence of the Federal Court to do the trial work and its exact source is probably 51(xxxix) plus 75 and 73 of the Constitution. Anyway, I have heard what you have said. What about these other matters?

MR RANGIAH: I am sorry, which other matters?

HIS HONOUR: The matters I have raised about the special need relative visas, whether that provision is still operative, and, secondly, whether or not, assuming you were right about Shan being wrongly decided, whether it would constitute jurisdictional error on the part of the Tribunal.

MR RANGIAH: Your Honour, in relation to the first matter, it is something which I will have to have a look at, but it may be that Esber and so forth assists with that point, but in relation to the jurisdictional error, there were two matters in relation to that. Firstly, I propose to file an amended draft order nisi. I do not know if I will bother at the moment, your Honour, because I have heard about your Honour's decision in a matter of Reyes recently and I think that will affect the way the relief claimed is framed and the relief sought and the necessary parties.

HIS HONOUR: Yes.

MR RANGIAH: It may be convenient to amend it after I have had a look at the decision when it is available.

HIS HONOUR: Yes. One thing, so far as certiorari is concerned, it is clear that, at least as far as I am concerned, it is the Tribunal that should be named as the party. So far as you seek mandamus, having regard to the terms of the High Court's Rules, it may be arguable that you can get an order nisi against a named individual. In fact, the High Court Rules say it should be in the name of the particular officers as far as mandamus and prohibition is concerned.

One of the great difficulties about that rule, and it may need re-examination, is that what happens if, as is the case in a number of these applications, the Tribunal member is no longer a member of the Tribunal? How do you get mandamus against somebody like Dr Hudson, for example, who is no longer a member of the Tribunal? I mean, you cannot mandamus him to rehear the case. He is not a member. So, notwithstanding the terms of the High Court Rule - I think it is in Order 55 - it may be that the Tribunal should still be the proper party so far as mandamus is concerned, but it is a matter that may have to be more closely examined in the very near future. We are not going to get stuck on matters of form in this case. I want to look at the substance of the matter.

MR RANGIAH: Yes. There was another possible consideration as well, and that is section 480 of the Migration Act which says that the parties to the review of a judicial review decision are the Minister and the applicant, et cetera, and there is an issue, I suppose, as to whether a matter remitted from the High Court is a judicially-reviewable decision and whether the Minister is a necessary party.

HIS HONOUR: Yes.

MR RANGIAH: But, in any event, the point I was going to make earlier was that I had amended the grounds of the relief sought to include failure to take into account a relevant consideration and that might affect the issue of jurisdictional error.

HIS HONOUR: Failure to take into account is not a matter that the Federal Court can deal with, is it?

MR RANGIAH: No, your Honour.

MR BEECH-JONES: No, your Honour. If I could just say something, your Honour, about that at the appropriate time.

HIS HONOUR: Yes.

MR RANGIAH: But it is not a matter which the Federal Court can deal with it, but it might be something which, if it is not already a jurisdictional error, might move it into a jurisdictional error if your Honour were to find that relevant consideration was not taken into account.

HIS HONOUR: Yes. What is the matter that is alleged that was not taken into account?

MR RANGIAH: It really flows from the earlier grounds that the subclause was misinterpreted and it is that the second respondent failed to take into account the inability of the child to care for himself by reason of his age.

HIS HONOUR: Yes. I will hear Mr Beech-Jones in a moment, but the last thing I want to do is have parties incur additional costs. I am happy to deal with the matter purely on the basis of written submissions, if you want to, that is, in relation to these other matters, rather than have any further oral hearing in respect of the matter.

MR RANGIAH: Yes. I would prefer that course, your Honour.

HIS HONOUR: You would?

MR RANGIAH: Yes.

HIS HONOUR: Yes. Mr Beech-Jones?

MR BEECH-JONES: Yes. Your Honour, the only matter I would just seek to address your Honour relates to this additional ground so that the submissions do not drift off into other issues.

HIS HONOUR: Yes.

MR BEECH-JONES: There was a draft order nisi which my friend said the alleged error was the failure to take into account the inability of the child to look after himself and, really, your Honour, we say two things about that. Firstly, that in Craig, when your Honours identified jurisdictional error for a tribunal and identified taking into account irrelevant material or failing to take into account was always prefaced by the words "if the Administrative Tribunal falls into an error of law". So even if my friend dresses this ground up as a failure to take into account a relevant consideration, it is really a 476(1)(e) ground just dressed up in another way.

The way it was prepared, with respect to my friend, it came in after my submission. It is an attempt to avoid remittal. It is not raising something that your Honour would perhaps keep in this Court. Alternatively, it, in my respectful submission, is clearly doomed to failure because it is clear the Tribunal did take into account the child's tender age. It just thought as a matter of law that is not in itself sufficient.

HIS HONOUR: Yes. There is no doubt it considered the child's age.

MR BEECH-JONES: Yes. So, your Honour, we would respectfully submit that even if another order nisi is coming in, that is not a barrier to remittal.

HIS HONOUR: How long would you want, Mr Rangiah, to put some written submissions in? I am afraid I will be in Perth all of next week. The Court will be in Perth. How long would you need?

MR RANGIAH: Since your Honour is going to be away in any event, can I have 10 days?

HIS HONOUR: Yes, no problem about that. What about you, Mr Beech-Jones?

MR BEECH-JONES: Ten days would take it to the 27th, your Honour. I could reply within about a week of that.

HIS HONOUR: I order that the parties file written submissions concerning (1) whether the subclass of special need relative visas still applies to these proceedings having regard to the terms of SR 259 of 1999, regulation 5(5) and the fact that the special need relative subclass of visa was removed by SR 306 of 1998, which commenced on 1 December 1998; (2) whether the matters relied on by the applicant raise questions of jurisdictional error as opposed to mere error of law or fact.

I direct that the applicant file written submissions by 4.00 pm on 27 October and that the first respondent file submissions in reply by 4.00 pm Monday 13 November. I give both parties leave to add anything they want to say about the question of remitter to the Federal Court. Costs of the day can be costs in the proceedings. I certify for the attendance of counsel.

AT 10.40 AM THE MATTER WAS CONCLUDED