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Zhang v Minister for Immigration and Citizenship & Anor [2010] HCATrans 61 (12 March 2010)

Our new case in the High Court of Australia

[2010] HCATrans 061

IN THE HIGH COURT OF AUSTRALIA

 

 

Office of the Registry

Sydney                                      No S283 of 2009

B e t w e e n

KUANG LUN ZHANG

 

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

 

First Respondent

ATTORNEY‑GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

 

Second Respondent

Application for special leave to appeal

GUMMOW J

BELL J

TRANSCRIPT OF PROCEEDINGS

 

AT SYDNEY ON FRIDAY, 12 MARCH 2010, AT 12.12 PM

 

Copyright in the High Court of Australia

MR G.C. LINDSAY, SC: May it please the Court, I appear for the applicant with MR J.F. GORMLY.  (instructed by Wang and Associate Solicitors)

MR S B LLOYD, SC: Your Honour, I appear with MS A.M. MITCHELMORE for the Minister.  (instructed by Australian Government Solicitor)

GUMMOW J: Yes, Mr Lindsay.

MR LINDSAY: May it please the Court.  There are two classes of special leave question proposed for the Court’s consideration.  The first relates to the question whether the Migration Act impliedly excluded the principles of procedural fairness from application to a decision under section 162 of the Act to cancel a criminal justice stay certificate, which had been given to a witness pursuant to section 147.  The second class of question relates to whether section 162 required the Attorney-General, in deciding whether or not to cancel such a certificate, to form an independent judgment about whether the certificate was, to quote the section, “no longer required for the purposes for which it was given”.  The legislation is conveniently extracted in the reasons for judgment of the federal magistrate in the application book at pages 32 and 33.

If I may turn to the first of the two classes of question, the applicant submits firstly that if the principles of procedural fairness were not excluded from the Act procedural fairness was on the facts of this case denied.  That appears to have been the view taken by the court below in the application book at pages 58 to 59, paragraphs 70 to 72.

The second point we make is that in our submission, the Federal Magistrate was correct in his analysis of the case at pages 35 through to 39 of the application book.  We submit further that the reasoning of Justice Merkel in Wasfi v the Commonwealth, upon which the Federal Magistrate relied ‑ ‑ ‑

GUMMOW J: Just interrupting you for a minute.  The Court heard an appeal yesterday in the matter of Saeed v the Minister, which Mr Lloyd is up to speed on, which raises questions of the construction of the Migration Act, in particular, section 51A, is it not, and the general connection between the Migration Act and what one might call principles of national justice.  There may be something to be said for standing over this application until we have decided Saeed.  I do not know if you are familiar with Saeed.

MR LINDSAY: I am not, no.

GUMMOW J: Let me just ask Mr Lloyd.

MR LLOYD: I think I understand, your Honour, that there is potential overlap on some points, but we would say this is not a case affected by section 51A.

GUMMOW J: No, that is so.  Remember there was some discussion generally in submissions as to what we mean when we talk about the rules of natural justice in this context of the Migration Act, and federal law generally.

MR LLOYD: I understand.  I suppose all I would say in respect of that, given your Honour put it so broadly, that this is a case in which the court below found that there was this jurisdictional fact which had to be determined by section 162, whether or not the applicant was no longer required.  The only evidence ‑ ‑ ‑

GUMMOW J: What was the actual source of the statutory decision?

MR LLOYD: Section 162.

GUMMOW J: Do we see that set out?

MR LLOYD: Yes, on page 33, at the bottom of the page, around about line 40.  So a certificate having been granted, and we would say granted for the purposes of allowing his presence for the purposes of an investigation and potential prosecution – then there was evidence, and the only evidence that went to that point was a letter referring to the fact the DPP had said that he was no longer required for that investigation or prosecution.  That is what led to the Attorney forming the view that section 162(1) was activated and then cancelling it.

GUMMOW J: The jurisdictional fact was the “no longer required”, if the presence is no longer required.

MR LLOYD: That is so, and perhaps if I put it this way.  What I am saying is that even assuming, because the Court is looking at this natural justice issue, what we are saying is in this particular case, there would be futility because we argue that the only evidence before the court below was that he was not required.  While he said he might have had a chance to go to tell the Attorney why he might have been a good witness or some such thing, we say it is not the Attorney’s role to decide those things.  That is for the DPP or the investigator to decide.  The Attorney is standing apart from that, so it is not within his scope of what he has to do.  If the DPP say they do not want him, then they do not want him and that is the end of the matter and that defines reflection in the decision of the court below at ‑ ‑ ‑


GUMMOW J: You are saying, I think, that the jurisdictional fact here is one that is just not susceptible to a natural justice process.

MR LLOYD: That is so, yes.  That is reflected in paragraphs 120 and 121 of the court below.

GUMMOW J: Yes.

MR LLOYD: Then the other matter which is raised in the special leave application is the fact that there is an allegation that ‑ ‑ ‑

GUMMOW J: I will put it another way.  What would have to be controverted would be that he was required.

MR LLOYD: That is so.

GUMMOW J: “Required”, I suppose, means required by the authorities with the conduct of the proceeding.

MR LLOYD: Yes, and to be fair, the federal magistrate said he could have gone to the Attorney and said that he would have been a good witness, and he could add things.  That is in the federal magistrate’s reasoning, for example, at paragraph 33 on page 37.  He would have given more information about the investigation – those are things that he could have said.  “He might have been able to point to information” – that is the kind of thing which a magistrate no doubt moots could have been said, and we say it was not the Attorney’s role in the scheme to decide that.  It is either a fact that he was required or not.  It is really for the DPP to decide, not for the Attorney to decide.

GUMMOW J: Thank you.  Yes, Mr Lindsay.

MR LINDSAY: So far as it may be relevant, if the Court were minded to stand the application over until judgment is delivered in Saeed ‑ ‑ ‑

GUMMOW J: The question is whether it would be useful to do so.

MR LINDSAY: I cannot do more than say that if the Court were minded to do that, we would not stand in the way of that, but otherwise ‑ ‑ ‑

GUMMOW J: You had better develop your submissions.

MR LINDSAY: Thank you.  If your Honours will just go to the application book at pages 32 and 33, your Honours will see that there is an interplay between section 162 which is reproduced ‑ ‑ ‑

GUMMOW J: What do you say your client would wish to have done, and what possible consequence could that have had for the operation of the ‑ ‑ ‑

MR LINDSAY: The material before the Court was to the effect that the applicant had been induced to co‑operate with the authorities as a witness for the purpose of assisting an investigation in relation to another party.  This case factually is distinguished therefore from all the other cases where the issue has been considered because they all concern people who were either accused or convicted.

We submit that in considering what evaluative decision would be made for the purpose of section 162, which ties back to section 147, it would be appropriate to consider whether there were any inducements offered to a witness and it could not be said merely because a DPP – not the Attorney‑General, a DPP – had formed an unexplained view, a conclusion, if you like, that a witness was no longer required by him, that there were the grounds set out for section 162 to operate.

We have an unusual situation where a witness is approached by the Department of Immigration, made promises about the prospects of obtaining a permanent visa if there was co‑operation, the co‑operation is given and it is given for some four years, not six months as was initially anticipated.  The Department of Immigration then sends a letter saying “You are no longer required because the DPP says you are no longer required”, and about the same time, the Department of Immigration sends a bare communication to the Attorney-General’s Department saying “This witness is no longer required.  Please make arrangements to cancel the certificate”.  The evidence is that with that bare request and nothing more – no inquiries, no further information provided – a delegate of the Attorney purported to effect a cancellation.

BELL J: The Attorney or his delegate was under an obligation in the event that the fact in section 162(1) was established, namely that the non‑citizen is no longer required.  The determination was based on the communication with the Director of Public Prosecutions had so indicated.  It is the function of the Director of Public Prosecutions to make such a determination, surely.

MR LINDSAY: In our submission, it is significant that in section 162, and also in section 147, the Act confers a power, a function, on the Attorney‑General – not on anybody else – on the Attorney‑General, and specifically in the context of the Act, not on the Department of Immigration.  In our submission, a judgment about whether or not the section 162 fact exists has to be made by the Attorney.

In the formation of that judgment, in our submission, and on the case that we advance, it would be necessary for the Attorney or the Attorney’s delegate to turn attention to the facts underlying the grant of the certificate in order to make an evaluative decision about whether or not the witness was required.

In our submission, in the course of doing that, the Attorney could receive – perhaps should receive – any representations that are made about inducements that are, or were, held out to the witness in securing co‑operation.  The difference between us is that on the respondent’s side of the record they say none of that is necessary.  All that the Attorney needs to do is get a bare request from the Department of Immigration.  Nothing more is required, and ‑ ‑ ‑

GUMMOW J: The Attorney‑General under the present system stands outside the activities of the DPP.

MR LINDSAY: The Attorney‑General – this is a statutory power and function conferred on the Attorney ‑ ‑ ‑

GUMMOW J: But in terms of the criminal prosecution.  The statutory scheme in the Commonwealth is that the Attorney‑General stands outside.

MR LINDSAY: It is the Attorney, yes, which has the powers and the function, the duty, under section 162.

GUMMOW J: In effect, to put it pejoratively, does not meddle in what the DPP is doing.

MR LINDSAY: The statute confers a power and function on the Attorney‑General.  It is not a power or function ‑ ‑ ‑

GUMMOW J: Under section 162 it imposes an obligation, actually.  That is what Justice Bell was putting to you.  Section 162 imposes an obligation on the Attorney in certain circumstances.

MR LINDSAY: Once the Attorney has formed the view, the judgment, that the fact exists.  In our submission, in order to form that view, the Attorney needs to consider more than just a bare request from somebody in relation to what should be done, a mere request, and the evidence quite clearly suggests there was nothing more than that was done here.  In those circumstances, adopting the reasoning of Justice Merkel, we say it could not be said that the principles of procedural fairness were excluded by the Act in relation to ‑ ‑ ‑

GUMMOW J: The question always is how would they apply?

MR LINDSAY: First of all ‑ ‑ ‑

GUMMOW J: What would happen?  Natural justice is meant to be very practical.

MR LINDSAY: Yes.  In practical terms, for a starting point the Attorney might have asked why is the request made?  The Attorney might have asked what were the circumstances in which the witness was requested?

GUMMOW J: He might have been told, “It is none of your business”.

MR LINDSAY: The Attorney should then inquire, in our submission, how the co‑operation of the witness was required and that might properly be addressed, should be addressed, in our submission, as an invitation to the applicant.  Had that invitation been made it is plain that the Attorney would have been told that a promise was made and it was a promise which requires consideration as to whether or not it should be honoured in all the circumstances in which it was made.

None of that happened in this case because the view was taken, a rather machine‑like decision, that it was sufficient to keep the applicant as a prospective witness hanging there and then simply to dismiss him without any further inquiry.  The scheme of the legislation, in our submission, simply could not permit that.  The Attorney‑General, on our case, as the holder of an office such as that has an obligation to superintend the administration of justice and in the course of doing that one of the matters that might be taken and, in our submission, should be taken very seriously is whether or not the co‑operation of a witness was secured by an inducement.  In our submission that is a factor which would be highly material.

None of that happened.  The applicant was not given an opportunity to bring those matters to the attention of the Attorney.  The two different ways we put the case are first of all in relation to procedural fairness and as I commenced to say the case we make in terms of the legal reasoning is substantially as set out by Justice Merkel in Wasfi.  In our submission the court below erred in refusing to follow that reasoning.  It made that decision at appeal book page 64, paragraph 105.

In our submission the court below also erred in following some general observations about the operation of the Migration Act that were made by Justice French, as his Honour then was, in the case of Goldie and by Justice Lindgren in the case of Lee.  Your Honours can see in short form what those observations are by turning to pages 63 and 64 of the application book.  At page 63 in paragraph 99 Justice French is quoted as saying that on the face of it:

the rules of natural justice are excluded at every stage of the decision‑making process –

Justice Lindgren is paraphrased on page 64 of the application book as saying that:

references to investigation, prosecution and punishment in the definition of the “administration of criminal justice” in s 142 make it clear that the relevant perspective is that of the administrators of the criminal justice system.

Each of those statements was made in an entirely different context.  They were made in a case where the person complaining of a denial of procedural fairness was the subject of investigation.  One may well see that a different approach would be taken to such a person, and in our submission a different approach should be taken, to such a person when compared to a witness who is standing outside the system and who is the subject of an inducement.

The observations made by Justices French and Lindgren in our submission have been taken out of context.  That context is important and in our submission when one is looking at the question whether the rules of natural justice and procedural fairness have been excluded impliedly by the legislation one needs to be quite cautious.

GUMMOW J: The question is whether they applied in the first place.

MR LINDSAY: That is right.  That is true.  This particular case in our submission, adopting what Justice Merkel said, focuses attention on the need for there to be a judgment, a view taken that has an evaluative nature about it.  We say in those circumstances, whether one approaches it from the point of view of saying do the rules apply or have they been excluded, the point is reached by either route where in our submission the proper conclusion is that the principles of procedural fairness do apply.

The other side’s answer to our proposition is that there should be a blanket approach taken.  All decisions made under this particular part of the Migration Act should all of them, at the outset, be the subject of some exclusion of procedural fairness.  In our submission when one looks at the nature of the decisions that could be made under the Act, there is a full range of them, and it is necessary in our submission to have regard to the particular case and it is not the case that a blanket approach could or should be taken.  That is a point of difference between us.  That is a point that, in our submission, points towards a special leave grant being made.

When one comes to the second way the case is put, namely whether or not the Attorney had to form an independent view, we say that the legislation in fact is predicated upon the fact that the Attorney‑General is the guardian of the administration of justice and in those circumstances, to pick up an expression that was used by the federal magistrate – in our submission, he cannot act merely as a rubber stamp and the materials before the Court on this occasion show that that is what the Attorney or his delegate purported to do.

In our submission, whichever way one looks at it, on either of the two classes of ground the questions for determination would warrant a grant of special leave.  Thank you.

GUMMOW J: We will take a short adjournment.

AT 12.36 PM SHORT ADJOURNMENT

 

UPON RESUMING AT 12.43 PM:

 

 

 

GUMMOW J: We do not need to hear further from you, Mr Lloyd.

Section 162 of the Migration Act 1958 (Cth) is cast in terms which do not permit that intrusion into the operation of the system of investigation and prosecution in the criminal justice system, which would be the consequence of acceptance of the submissions of the applicant, in particular those made in paragraph 28 of the outline of argument.  Special leave is refused with costs.

We will now adjourn to 2.15.

AT 12.43 PM THE MATTER WAS CONCLUDED