A, Ex parte- Re Minister for Immigration and Multicultural Affairs

[1998] HCATrans 145

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S55 of 1998

In the matter of -

An application for Writs of Prohibition and Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

Respondent

Ex parte -

“A”

Prosecutrix

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 14 MAY 1998, AT 9.35 AM

Copyright in the High Court of Australia

MR G.T. JOHNSON:   Your Honour, I appear for the respondent.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes.  Well, this is really an ex parte application, but I am grateful, you are here.

MR JOHNSON:   Of course, your Honour.

MR A.J. RAYMENT:   May it please the Court, I appear for the prosecutrix.  (instructed by Corby Levingston)

HIS HONOUR:   Now, this is an ex parte application for an order nisi, is it not?

MR RAYMENT:   Yes, your Honour.

HIS HONOUR:   Now, you move on an affidavit of your client, sworn 4 May, is that right?

MR RAYMENT:   Yes, your Honour.

HIS HONOUR:   You had better stand up when you are talking to me.

MR RAYMENT:   Yes.  I move on the affidavit sworn 30 April 1998.

HIS HONOUR:   Yes, sworn 30 April; filed on 4 May; and an affidavit of Mr Levingston, the solicitor, of, also, 30 April and, likewise, filed on 4 May.

MR RAYMENT:   Yes, your Honour.

HIS HONOUR:   I just want to ask Mr Johnson a question about the Act which may assist you as well.  Mr Johnson, I have a reprint of 31 January 1996, Reprint No 6 - - -

MR JOHNSON:   That is it, your Honour, yes.

HIS HONOUR:   And the cancellation was expressed in exercise of power under 116(1)(b), non-compliance.

MR JOHNSON:   That is correct, your Honour.

HIS HONOUR:   And then 127 provided for notification of the decision, and that was done here, it seems, from the material.

MR JOHNSON:   Yes, your Honour.

HIS HONOUR:   And then there is some reference in Mr Rayment’s material as to 128 but I do not see that has anything to do with it.

MR JOHNSON:   That is right, your Honour.  That is only applicable to people outside Australia.

HIS HONOUR:   That is right.  Would the decision to cancel have been reviewable under 346?

MR JOHNSON:   Your Honour, yes.  The decision to cancel was reviewable under section 346 and, if I can attempt to - - -

HIS HONOUR:   Within the time limits of 347.

MR JOHNSON:   That is so, your Honour.  Your Honour, this is not a judicially reviewable decision for the purposes of section 475, if that is where your Honour is headed.

HIS HONOUR:   No, I was just wondering what the scope would be of - we will come to that.  Reviewed by the IRT, would that be governed by 349?

MR RAYMENT:   Your Honour, I have some submissions which deal with these particular - - -

HIS HONOUR:   Yes.  We will come to them, Mr Rayment, after.

MR JOHNSON:   If the matter went to the IRT then, certainly, 349 would bear upon the Tribunal’s powers.

HIS HONOUR:   Would have applied, yes.  There does not seem to be any limitation in 349 or 346 of the grounds of the review.  I know it changes completely when it gets into the court system but within the IRT there would have been a review, would there not?

MR JOHNSON:   Within the IRT, your Honour, it would have been a review on the merits.

HIS HONOUR:   Yes, exactly.  That is what I am trying to get at.

MR JOHNSON:   Just in case it affects things, your Honour, could I just give your Honour a little bit more detail as to the track by which this becomes reviewable by the Tribunal?

HIS HONOUR:   Yes.

MR JOHNSON:   Could I ask your Honour, first, to go to the definition of “IRT-reviewable decision” on page 6 of the reprint.

HIS HONOUR:   Yes.  It is not a very helpful definition.

MR JOHNSON:   Indeed, your Honour.  That takes you on to 346 where your Honour started.

HIS HONOUR:   That is right.

MR JOHNSON:   If your Honour would just bear with me, I have passages marked more clearly in this one.  In section 346(1)(d), your Honour, it talks about “other decisions prescribed to be IRT-reviewable decisions”.

HIS HONOUR:   Yes, and this would be one?

MR JOHNSON:   And this is one, and it is so prescribed in regulation 4.09(d) of the Migration Regulations.

HIS HONOUR:   That is agreed, is it, Mr Rayment?

MR RAYMENT:   Yes, your Honour.

MR JOHNSON:   Your Honour, could I just also say I appreciate it is an ex parte application but there is an affidavit I would seek your Honour’s leave to read. 

HIS HONOUR:   Well, can you just stay on the IRT for the minute.  What would be the path out of that into the judicial structure, if any?

MR JOHNSON:   The path out of that in the judicial structure, ordinarily, your Honour, would be section 475. 

HIS HONOUR:   Yes.

MR JOHNSON:   Or, alternatively, as the prosecutrix has done here, come to this Court under the Constitution. Your Honour, this particular decision would not be a judicially-reviewable decision because it is caught by section 475(2)(c) for the reasons that we have just gone through.

HIS HONOUR:   Yes.  So, what would happen?  The only possibility would be this Court, would it?

MR JOHNSON:   Of course, in this case, your Honour, the applicant did not go to the IRT.

HIS HONOUR:   I know.  That provisionally strikes me as a most significant matter.

MR JOHNSON:   So, the only way, really, for the prosecutrix to start is to come here as has happened.  This, certainly unlike the - - -

HIS HONOUR:   If she comes here what are the restrictions on any of my power to remit?

MR JOHNSON:   Your Honour, I do not think that there are any.  Can I just take your Honour to the relevant provision?  Your Honour, it is section 485, which is at page 233 of the - - -

HIS HONOUR:   I think I understand these sections but they reveal new insights every time I look at them.  Section 485?

MR JOHNSON:   Section 485, your Honour, at page 233.  The relevant ones are subsection (1) and (3).  If I could just go through them.  Subsection (1):

In spite of any other law, including section 39B of the Judiciary Act, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.

HIS HONOUR:   This is not a judicially-reviewable decision.

MR JOHNSON:   That is correct, your Honour.  And then if one drops down to subsection (3), that provides that:

If a matter relating to a judicially-reviewable decision -

which this is not -

is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part.

Your Honour, we would accept that if the matter was remitted back by your Honour under section 44 of the Judiciary Act then - - -

HIS HONOUR:   That is enough to found jurisdiction in the Federal Court and it is not taken away by any of these other provisions.

MR JOHNSON:   That is right, your Honour, and if your Honour was inclined to do that then certainly we would not oppose it.  The one concern, your Honour, we have about that is that the - and this really brings me to the territory of my application for leave to read the affidavit.  The visas which was cancelled would have by now already expired and, query, in those circumstances, whether there is any utility in sending it to the Federal Court.  We appreciate - - -

HIS HONOUR:   When would it have expired?

MR JOHNSON:   It would have expired, your Honour, earlier this month.  The visa expired on 6 May 1998.

HIS HONOUR:   Is that agreed, Mr Rayment, that in the ordinary course the visa was for a period that would have expired on 6 May?

MR RAYMENT:   No, it is not conceded yet, your Honour.  I saw a date that said something like July.

HIS HONOUR:   Well, I will wait until you get it checked.

MR RAYMENT:   It is conceded.

MR JOHNSON:   Your Honour, again, given that concession, I do not need to press the application I was going to make in relation to the affidavit.

HIS HONOUR:   Well, Mr Rayment, it seems to me you have three problems. The first one is why, in any event, should I not remit it, under section 44? And I have been satisfied by Mr Johnson that the path exists to do that through the legislation. Why should I not remit it to the Federal Court? Secondly, is it of any practical utility to do that in any event, and should I not simply refuse your application for an order nisi on - two matters you would have to consider: the first one is that the visa, in any event, would have expired by now, and the second one is that whatever the requirement of procedural fairness before the cancellation took place, the content of that has to be measured against the statutory framework, and the

statutory framework includes available remedies within the statute and one of which was a merits review before the IRT.  Although your client had solicitors, as is apparent from these materials, at the relevant times, no course was taken to invoke the review by the IRT within the times laid down in the Act.

In other words, the content of the procedural fairness is linked up with the availability of this facility for a merits review by the IRT and, provisionally, it seems to me to be no answer to that to say, “Oh well, we chose not to do that, and therefore we can complain about what was done to us.”  Do you see that I mean?

MR RAYMENT:   Yes, your Honour.

HIS HONOUR:   Well, what am I to do?

MR RAYMENT:   If I might just hand up my written submissions in relation to this matter, your Honour.

HIS HONOUR:   Yes, but how will they answer these problems?

MR RAYMENT:   Well, some of them are dealt with.  In the first place, about the remitter, the first problem is section 478(1)(b) - - -

HIS HONOUR:   Just a moment, 47 - - -?

MR RAYMENT:   Section 478(2), I apologise, precludes the Federal Court from making an order where an application is not made within 28 days of being notified of the decision.

HIS HONOUR:   But that is not involved here. The basis of the Federal Court’s jurisdiction would be section 44 of Judiciary Act. The Federal Court would be exercising the constitutional jurisdiction of this Court under section 75(v) of the Constitution which cannot, and has not been, so limited.

MR RAYMENT:   Well, I thought that the only jurisdiction the prosecutrix could exercise in the Federal Court is governed by the provisions of this part or by - sorry, under section 485(1), it says:

judicially-reviewable decisions or decisions covered by subsection 475(2) -

which is, in this case, the prosecutrix not having a judicially-reviewable decision.

HIS HONOUR:   We will start with the Constitution, that is why you are here. We will start in the High Court with the Constitution, and then we go to section 44 of the Judiciary Act.  Have you got that?

MR RAYMENT:   Yes, your Honour.  The difficulty as I see it, your Honour, was that - - -

HIS HONOUR:   If you could just look at section 44 first.

MR RAYMENT:   Yes, your Honour.

HIS HONOUR:   Now, the question is does any other Commonwealth statute cut down the scope of the power in 44, and as Mr Johnson very fairly points out, for your benefit really, 485(1) does not relevantly do that because we are not talking here about an IRT-reviewable - we are not talking about a decision under 475(1) because this is taken out by 475(2)(c).

MR RAYMENT:   Yes, your Honour.

HIS HONOUR:   So, it seems there is power to remit but is it of utility to do so, and is it of utility for your client to spend further time and effort?

MR RAYMENT:   Your Honour, in relation to the time periods, the Immigration Review Tribunal will hear an application provided it is lodged within 2 days.  That is prescribed in the regulations.  The prosecutrix was in detention during the time in which she had to lodge the application.  That is covered by regulation 4.10(2) of the regulations.

HIS HONOUR:   Yes.  So, you say she could not get to her solicitors or she had no solicitors at that time?

MR RAYMENT:   She deposes in her affidavit, your Honour, to having been detained without the use of an interpreter.

HIS HONOUR:   That is true but she seems to have sworn an affidavit before Mr Martin, Justice of the Peace, in English.

MR RAYMENT:   Yes, your Honour.  Well, I am - - -

HIS HONOUR:   Be very careful what you say now.

MR RAYMENT:   I am instructed an interpreter was used and I endeavoured to have an affidavit drafted this morning in relation to that.

HIS HONOUR:   In that event, the affidavit is not in proper form, is it?

MR RAYMENT:   No, your Honour, and I apologise to the Court.

HIS HONOUR:   It is not a question of apologising.  It does not offend me personally but it is an abuse of the system.  Yes, all right.  So, when do you say she first had access to a solicitor?

MR RAYMENT:   As I understand, the first contact was after she was released from detention, being a date in late February.

HIS HONOUR:   Does she say that in her affidavit?

MR RAYMENT:   No, she does not but she does depose to the fact that she was in detention for 48 hours or two nights.

HIS HONOUR:   Does Mr Levingston depose to it?  He does not say when he first got instructions, does he?

MR RAYMENT:   No, he does not, although, on 6 March 1998, Mr Levingston sent his first letter to the respondent.  If the relevant period is ‑ ‑ ‑

HIS HONOUR:   Of course, your client’s affidavit, on its face, discloses that she came to this country under a tourist visa proposing to work.

MR RAYMENT:   Your Honour, it was explained to her, as I see it, that she was able to work by a lady known as Mary at various points until such time as she arrived in the country.

HIS HONOUR:   Does she depose to that?

MR RAYMENT:   Subject to what she believed were death threats.

HIS HONOUR:   Did she depose to that in her affidavit?

MR RAYMENT:   I believe she does.  In paragraph 5 she says she will organise everything.

can I come in  through the correct channels?

Yes, I will organise everything.

What do I do now?

My relative will collect your passport and will get your visa, you do not have to do anything.

HIS HONOUR:   What is the answer to the point that, in any event, the visa has now expired?

MR RAYMENT:   Your Honour, if the decision were remitted to the Federal Court - - -

HIS HONOUR:   I would have thought, with this history, it would be unlikely your client would get a renewal.

MR RAYMENT:   If the decision were remitted to the Federal Court and made void ab initio pursuant to section 475(1) - - -

HIS HONOUR:   Yes.  Well, the visa would stay on foot until 6 May.

MR RAYMENT:   Yes, and in the interim, between now and the time of the Federal Court proceedings operated, an application could be made for a bridging visa pending any decision of the Federal Court to avoid the cancellation, pursuant to section 116.

HIS HONOUR:   No, no, no.  But just assume nothing had ever gone wrong from your client’s point of view as regards her migration status, her visa would have expired on 6 May.

MR RAYMENT:   But she would, as a substantive visa holder, have been entitled to make an application for a further visa whilst inside the country.  As a person whose visa had been cancelled, she - - -

HIS HONOUR:   Should would be entitled to make one.  I would not have thought she would have got very far, but still.

MR RAYMENT:   Having had her visa cancelled by section 116, she incurred such a significant disability by - - -

HIS HONOUR:   Your client has been in gross breach of the migration laws of this country.  Let us get down to tintacks.  And if you are advising, you have to face up to it.

MR RAYMENT:   Yes, your Honour, and when the respondent asked ‑ ‑ ‑

HIS HONOUR:   Gross breach.

MR RAYMENT:   I accept that, your Honour.  And when the respondent asked her to explain, she was asked inside the brothel.  That is not a reasonable place - - -

HIS HONOUR:   What could she have said?

MR RAYMENT:   She could have said, your Honour, that she was subject to death threats; was out here, for example, on a contract of slavery such as to attract the interest of the respondent in preventing further breaches of this kind, and become a State witness, for example.

HIS HONOUR:   I see.  All right.  At present, I am minded to remit this application to the Federal Court but I have real doubts as to the utility, from your client’s point of view, of that being done.  Do you want to get instructions?

MR RAYMENT:   Yes, your Honour.

HIS HONOUR:   You are faced with a choice, really:  you can withdraw the application here or I will remit it to the Federal Court and, at the end of the day, there must be a real risk that that will not produce effective relief from your client’s point of view.  Now, do you want to take further instructions about that?

MR RAYMENT:   Yes, your Honour.

HIS HONOUR:   All right, I will take a short adjournment.

AT 10.00 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.10 AM:

HIS HONOUR:   Yes, Mr Rayment?

MR RAYMENT:   We would seek to have the matter remitted, your Honour.

HIS HONOUR:   Very well. Now, Mr Johnson, it looks like section 44(2A), does it not, of the Judiciary Act?

MR JOHNSON:   If your Honour will just bear with me.

HIS HONOUR:   Mr Rayment has asported it.  He seeks relief against the Minister, I guess, that is the idea.

MR JOHNSON:   Yes, that is so, your Honour, yes.

HIS HONOUR:   Yes, thank you.

This is an application for an order nisi for prerogative relief under section 75(v) of the Constitution against the Minister for Immigration and Multicultural Affairs of the Commonwealth of Australia.

The application is made ex parte but the Court has been assisted by counsel for the Minister who has referred the Court to various legislative provisions which apply in this case. 

The applicant was born in Thailand in 1974 and is a Thai citizen. She entered Australia in August 1997 under a tourist visa. Notwithstanding the restrictions upon that visa, she went to work at a brothel at Blacktown, a suburb of Sydney. In about October 1997, when her visa apparently was due to expire, she made an application for an extension. It is common ground that in the ordinary course the visa she held would have expired on 6 May this year. However, on 11 February 1998 her visa was cancelled in exercise of the power conferred by section 116(1)(b) of the Migration Act 1958. This provides for the cancellation upon satisfaction that the “holder” of the visa “has not complied with a condition of the visa”.

Section 127 contains a provision for notification which was observed here.  The decision to cancel was an “IRT-reviewable decision” having been prescribed within the meaning of section 346(1)(d) of the Act, see the definition in section 5(1).  No application for review by the Immigration Review Tribunal, (“the IRT”), was made within the time limits prescribed by the legislation.

Such a review by the IRT is a review on the merits, see section 349.  However, in the Federal Court the IRT-reviewable decision itself would not have been a judicially-reviewable decision within the meaning of section 475.  That section deals with the review jurisdiction of the Federal Court.  There are excluded, by section 475(2)(c), IRT-reviewable decisions.  A decision by the IRT would have been a judicially-reviewable decision (section 475(1)(a)), but not the initial decision to cancel the visa.  The Act required there first to have been a merits review by the IRT.

May this Court, however, remit the present application under section 75(v) to the Federal Court? On the face of section 44(2A) of the Judiciary Act 1903, this Court is empowered to remit the matter to the Federal Court and where this happens subsection (3) provides that the Federal Court has jurisdiction in the matter. The question is whether there is anything in the other legislation which cuts down the power conferred by section 44.

As counsel for the Minister has helpfully pointed out to the Court, the exclusions in section 485 of the Act in respect of the Federal Court apply only to cut down the powers of the Federal Court with respect to matters remitted under section 44 where the matter relates to a judicially‑reviewable decision within the meaning of section 475(1). The present, for the reasons I have indicated, is taken out of that class by the operation of section 475(2).

The result is that there is a power in this Court of remitter in this case.  The question is should it be exercised? 

The ground upon which prerogative relief is sought is denial of natural justice in making the decision to cancel the visa.  The content of the obligation of procedural fairness in a given case is to be ascertained having regard to the circumstances of the case and the relevant statutory framework.  That framework here includes the avenue of a merits review, as I have indicated.  On the other hand, the applicant complains that the period for the initiation of such a review is short and that she was in detention and did not have legal advice available to her.  I am not convinced that that circumstance necessarily determines the content of the natural justice obligation which is provided in the statutory framework itself.  Further, as I have indicated, in any event, the visa would have expired on 6 May 1998. 

In all the circumstances, though I have doubts in the matter, I am not sufficiently convinced at this stage to dismiss the application for an order nisi rather than to remit it for further consideration by the Federal Court.   Accordingly, I direct that the application made in this Court on 4 May 1998 be remitted to the Federal Court of Australia, New South Wales District Registry. 

I make no order to this effect but plainly this is a case which, consistently with the other exigencies of the Federal Court list, should be dealt with in that court as soon as practicable.

I do not think I should make an order for costs, Mr Johnson, this having been an ex parte application.  What I will say is, I now make no order for costs of the application in this Court, and any application for costs in this Court should be made to the Federal Court when it disposes of the matter remitted to it.

Is there anything else?

MR JOHNSON:   No, your Honour.

HIS HONOUR:   I will adjourn.

AT 10.25 AM THE MATTER WAS CONCLUDED