Issue 83: Sep 2018
High Court of Australia Judgment Summary Notes

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The following summary notes of recent decisions of the High Court of Australia provide a brief overview of each case. For more detailed information, please consult the Reasons for Judgment which may be downloaded by clicking on the case name.

Hossain v Minister for Immigration and Border Protection [2018] HCA 34

Today the High Court unanimously held that an error of law made by the Administrative Appeals Tribunal in relation to one criterion for the grant of a partner visa did not invalidate the Tribunal's decision not to grant the visa because the Tribunal correctly concluded that the requirements of another criterion were not met. The Court held that, in those circumstances, the Tribunal's error of law in relation to the first criterion did not materially affect the Tribunal's decision.

Mr Sorwar Hossain, a citizen of Bangladesh, applied for a partner visa in May 2015. A delegate of the Minister for Immigration and Border Protection refused to grant the visa and Mr Hossain applied to the Tribunal for review of the delegate's decision. The Tribunal affirmed the delegate's decision because the Tribunal was not satisfied that two criteria prescribed by the Migration Regulations 1994 (Cth) had been met. The first criterion was that the application for the visa be made within 28 days of the applicant ceasing to hold a previous visa "unless the Minister is satisfied that there are compelling reasons for not applying" that criterion. The second criterion was that the visa applicant "does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment". Section 65 of the Migration Act 1958 (Cth) provided that "if satisfied" that all the criteria prescribed for the visa had been met, the Minister was to grant the visa; and that, "if not so satisfied", the Minister was to refuse to grant the visa. For the purposes of the review of the delegate's decision, the Tribunal was required to determine whether it was satisfied that the criteria had been met.

The Tribunal was not satisfied that the first criterion had been met because Mr Hossain had not applied for the partner visa within 28 days of ceasing to hold a previous visa and the Tribunal was satisfied that there were no compelling reasons, as at the time at which Mr Hossain had applied for the partner visa, for not applying that criterion. The Tribunal also was not satisfied that the second criterion had been met because Mr Hossain had a debt to the Commonwealth which he had made no arrangements to repay, although Mr Hossain told the Tribunal that he intended to repay the debt. The Tribunal accordingly affirmed the delegate's decision not to grant the partner visa.

Mr Hossain applied to the Federal Circuit Court of Australia for judicial review of the Tribunal's decision. Before that Court, the Minister conceded that the Tribunal had made an error of law by deciding that there were no compelling reasons for not applying the first criterion as at the time of the visa application, whereas the Tribunal should have decided whether such reasons existed as at the time of the Tribunal's decision. The Federal Circuit Court held that this error was jurisdictional in nature and meant that the Tribunal's decision was invalid, notwithstanding that the Tribunal also had not been satisfied that the second criterion had been met. On appeal, a majority of the Full Court of the Federal Court held that the Tribunal's error was jurisdictional in nature, but that the error had not stripped the Tribunal of authority to affirm the delegate's decision.

By grant of special leave, Mr Hossain appealed to the High Court. The Court held that a decision ‑ maker is required to proceed on a correct understanding of the applicable law, but that an error of law will not be jurisdictional in nature if the error does not materially affect the decision. The Tribunal's findings with respect to the second criterion provided an independent basis on which the Tribunal was bound to affirm the delegate's decision. The suggestion that the Tribunal might have allowed Mr Hossain more time to arrange to repay his debt if the Tribunal had not made the error was insufficient to demonstrate that the Tribunal's decision might have been different had it not made the error. The Court therefore dismissed the appeal.

Shrestha v Minister for Immigration and Border Protection; Ghimire v Minister for Immigration and Border Protection; Acharya v Minister for Immigration and Border Protection [2018] HCA 35

Today the High Court unanimously dismissed three appeals from a judgment of the Full Court of the Federal Court of Australia which rejected the appellants' respective challenges to decisions of the Migration Review Tribunal.

In each case, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection to cancel the visa holder's student visa pursuant to s 116(1)(a) of the Migration Act 1958 (Cth). Section 116(1)(a) provided that "the Minister may cancel a visa if he or she is satisfied that ... any circumstances which permitted the grant of the visa no longer exist". Each appellant was granted a student visa on the basis that they satisfied the definition of an "eligible higher degree student" under the Migration Regulations 1994 (Cth). That definition required that, if the applicant proposed to undertake a preliminary course of study before and for the purposes of a principal course of study, the applicant had to be enrolled in that preliminary course of study. In each case, the Tribunal found that the visa holder had been enrolled in a preliminary course of study at the time that person was granted a student visa, but was no longer enrolled in that course of study. The Tribunal concluded that the visa holder therefore no longer met the definition of an "eligible higher degree student" and that a "circumstance" within the meaning of s 116(1)(a) no longer existed. The Tribunal in each case decided to cancel the visa holder's visa.

Each visa holder applied to the Federal Circuit Court of Australia for judicial review of the Tribunal's decision. In each case, the Federal Circuit Court dismissed the application. Each visa holder appealed to the Federal Court, where their appeals were heard together. The Full Court of the Federal Court held, by majority, that the word "circumstances" in s 116(1)(a) referred to a state of affairs rather than a legal characterisation of a state of affairs, and that in each case the Tribunal had made a legal error by focusing on whether the visa holder met the definition of an "eligible higher degree student" instead of whether the visa holder remained enrolled in that course of study. The majority held that the error was jurisdictional in nature, but that the Tribunal's decisions should not be set aside because the error could have had no impact on the decisions.

By special leave, the visa holders appealed to the High Court. A plurality of the Court held that the appeals should be dismissed on the basis that, even if the Tribunal had in each case made the alleged error, that error could have had no impact on the Tribunal's decisions because at most the error caused the Tribunal to ask a superfluous question. Accordingly, the alleged error was not jurisdictional in nature and could not invalidate the Tribunal's decisions.

Nobarani v Mariconte [2018] HCA 36

Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales, holding that a new trial should be granted to the appellant on the basis that he was denied procedural fairness in the conduct of a trial involving the respondent's claim for probate of a will in solemn form.

The appellant was unrepresented. He claimed an interest in challenging a will made in 2013 ("the 2013 Will"), which left the whole of the estate to the respondent. The appellant filed two caveats against a grant of probate without notice to him. The respondent brought proceedings for orders that the caveats cease to be in force ("the caveat motion"). The respondent also filed a summons for probate of the 2013 Will and a statement of claim, in which the appellant was not named as a defendant. Although the appellant was served with the statement of claim and filed an appearance, he was not directed to take any steps in the proceedings. His preparation was essentially limited to the caveat motion, which was listed for hearing. At a directions hearing, it was explained to the appellant that the trial would be limited to determination of the caveat motion. Three clear business days before the trial, at a further directions hearing, the trial judge told the appellant that the trial would be of the claim for probate and directed that the appellant be joined as a defendant. At trial, the appellant's defence was in disarray. His applications for adjournments were refused. The trial judge delivered judgment orally, granting probate of the 2013 Will in solemn form. The appellant was ordered to pay costs.

A majority of the Court of Appeal dismissed the appellant's appeal, but for different reasons. Ward JA concluded that, although the appellant had been denied procedural fairness, that denial did not deprive him of the possibility of a successful outcome. Emmett AJA concluded that the appellant did not have an interest in challenging the 2013 Will.

By grant of special leave, the appellant appealed to the High Court. The appellant argued that the Court of Appeal erred in not ordering a retrial. The respondent argued that there was no denial of procedural fairness, and, if there was, there was no substantial miscarriage of justice by reason of any such denial.

The Court unanimously held that the appellant had an interest in challenging the 2013 Will and he was denied procedural fairness. The denial of procedural fairness arose from the consequences, and effect on the appellant, of altering the hearing, at short notice, from a hearing of the caveat motion to a trial of the claim for probate. The denial amounted to a "substantial wrong or miscarriage" because the appellant was denied the possibility of a successful outcome.

HFM043 v The Republic of Nauru [2018] HCA 37

Today the High Court unanimously allowed an appeal from the Supreme Court of Nauru. The High Court held that the Supreme Court of Nauru erred in holding that s 31(5) of the Refugees Convention Act 2012 (Nr) made it futile to remit the appellant's application for merits review to the Refugee Status Review Tribunal ("the Tribunal").

The appellant applied to the Secretary of the Department of Justice and Border Control of Nauru ("the Secretary") to be recognised as a refugee in January 2014. The Secretary determined that the appellant was not a refugee and that she was not owed complementary protection. In March 2015, the Tribunal affirmed the Secretary's determination. The appellant appealed to the Supreme Court of Nauru. Prior to the determination of her appeal, the appellant married Mr B, who had been recognised as a refugee. The appellant's solicitors sent an email to the Republic of Nauru's Refugee Status Determination Lawyer informing the Government of Nauru of her "dependency on her husband" and attaching submissions and statements in support of her "Application for Derivative Status". A document entitled "Refugee Determination Record" issued to the appellant in August 2016 stated that the Secretary had determined that she was a refugee. There was no dispute that this document refers to the appellant's derivative status as a dependant of her husband.

On 9 June 2017, the Supreme Court of Nauru held that the Tribunal had made an error of law by failing to adjourn the hearing so that the appellant could obtain a full medical report. The Supreme Court of Nauru made an order dismissing the appellant's appeal on the basis that it would be futile to remit the matter to the Tribunal "due to the operation of s 31(5)". Section 31(5) provides that an application for merits review by the Tribunal "that has not been determined at the time the person is given a Refugee Determination Record, is taken to have been validly determined at that time".

The appellant appealed as of right to the High Court. The High Court held that s 31(5) did not apply to the appellant. Section 31(5) applies only to persons who have been given a "Refugee Determination Record" as defined by s 3 of the Refugees Convention Act, which confines the meaning of that term to a document issued under s 6(2A). The document issued to the appellant in August 2016 was not a document issued under s 6(2A), as that provision came into effect on 23 December 2016 and was not given retrospective effect. The High Court set aside the orders of the Supreme Court of Nauru and remitted the matter to the Tribunal for determination according to law.

Mighty River International Limited v Hughes; Mighty River International Limited v Mineral Resources Limited [2018] HCA 38

Today the High Court published reasons for orders it made on 19 June 2018 dismissing two appeals brought by Mighty River International Ltd ("Mighty River") from decisions of the Court of Appeal of the Supreme Court of Western Australia.

Mesa Minerals Ltd ("Mesa Minerals") was placed into voluntary administration and administrators were appointed. At the second meeting of creditors, a majority of creditors voted in favour of entry into a deed of company arrangement ("the Deed"). The Deed was executed in the terms proposed by the administrators. Amongst other things, the Deed provided for a moratorium on creditors' claims; required the administrators to conduct further investigations and report to creditors concerning possible variations to the Deed within six months; and provided that no property of Mesa Minerals be made available for distribution to creditors.

Mighty River, a creditor of Mesa Minerals, brought proceedings in the Supreme Court of Western Australia claiming that the Deed was void. Its claim was heard together with a claim brought by another creditor, Mineral Resources Ltd, that the Deed was not void. At first instance, Master Sanderson dismissed Mighty River's claim and made a declaration that the Deed was not void. The Master held that the Deed was consistent with the object of Pt 5.3A of the Corporations Act 2001 (Cth); that s 444A(4)(b) did not require some property to be made available to pay creditors' claims; and that the use of a "holding" deed of company arrangement was one "gateway" to extend the period for convening a second creditors' meeting beyond the timeframe set by s 439A(5), the other being a court order under s 439A(6). Mighty River appealed to the Court of Appeal, which dismissed the appeals.

By grants of special leave, Mighty River appealed to the High Court. In essence, it made two submissions. First, the Deed was not a valid deed of company arrangement, principally because it was an agreed extension of time that had not been ordered by a court under s 439A(6) and was contrary to the object of Pt 5.3A. Secondly, the Deed should have been declared void under s 445G(2) for contravening ss 438A(b) and 439A(4), or s 444A(4)(b), or both.

A majority of the High Court held that the Deed was a valid deed of company arrangement. It had been formally executed in compliance with Pt 5.3A. The Deed created and conferred genuine rights and duties. It did not involve an impermissible sidestepping of s 439A(6) as it only had the incidental effect of extending the time for the administrators' investigations. The provision of a moratorium while Mesa Minerals' position was further assessed was consistent with the object of Pt 5.3A. A majority of the High Court also held that the Deed was not required to be declared void under s 445G(2). Section 444A(4)(b) did not require the Deed to specify some property to be available to pay creditors' claims, and the administrators had formed and expressed the opinions required by s 438A(b) and, at the relevant time, s 439A(4).