Akpata, Ex parte - Re MIMA

[2002] HCATrans 277

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A94 of 2002

In the matter of -

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

Respondent

Ex parte –

STEPHEN OGHO AKPATA

Applicant/Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 19 JULY 2002, AT 10.02 AM

Copyright in the High Court of Australia

MR B.M. O’BRIEN:   If your Honour pleases, I appear on behalf of the applicant/prosecutor.  (instructed by Hamdan Lawyers)

MS S.J. MAHARAJ:   If it please your Honour, I appear for the Minister.  (instructed by Sparke Helmore)

HIS HONOUR:   Now, I notice, Ms Maharaj, some reference in the papers on your behalf to some possible transfer to the Federal Court, is that right?

MS MAHARAJ:   Yes, your Honour.  We filed some short submissions yesterday asking for the Court’s indulgence under section 44 to remit the matter to the Federal Court.

HIS HONOUR:   How would I have jurisdiction to do that?  I can only send it there if they have jurisdiction to do all I can do.

MS MAHARAJ:   Your Honour, we seek such an order under section 44(2A).

HIS HONOUR:   Yes, but ‑ ‑ ‑

MS MAHARAJ:   And I think your Honour may be assisted by section 476(4) of the Migration Act.

HIS HONOUR:   Yes, that is what I am looking at – 476 subsection?

MS MAHARAJ:   Subsection (4) of the Migration Act.

HIS HONOUR:   That is right, yes.  I think it really has to stay here, at the moment anyway.

MS MAHARAJ:   It depends a little bit, your Honour, on the sorts of issues that may be agitated by my learned friend.

HIS HONOUR:   It does, yes.  You are quite right.

MS MAHARAJ:   Yes, and it is not very clear, and understandably so, from the papers that have been filed as to precisely what is alleged and what will be sought and on what basis.

HIS HONOUR:   Yes.  Just before you sit down before I come to Mr O’Brien, I see from the material accompanying the affidavit of Elizabeth Mary Reed of 17 July that there was a refusal on character grounds under 501 and that brings into play, am I right in thinking – this is what I am asking you – am I right in thinking that that brings into play an

automatic cancellation under 501F(3) of any bridging visa which this gentleman may have had pending his other special leave application?

MS MAHARAJ:   That is correct, your Honour.

HIS HONOUR:   And that being so, if he lost any other visa that he had automatically, that would transform him into an unlawful non‑citizen under 13 and 14 ‑ ‑ ‑

MS MAHARAJ:   That is correct, your Honour.

HIS HONOUR:   ‑ ‑ ‑ and that would trigger the detention power – well, the detention requirement, not really a power – the detention requirement under 189.

MS MAHARAJ:   That is precisely the scheme, your Honour.  Section 189 and section 196 is triggered into application.

HIS HONOUR:   And that being so, at least provisionally, it would seem that there is no ground for any injunction requiring the release of this gentleman from detention.

MS MAHARAJ:   That would be our submission, your Honour.

HIS HONOUR:   All right.  I will ask Mr O’Brien first what he says about that.

MR O’BRIEN:   Your Honour, the basis of our application and the basis of the relief which we seek is that ‑ ‑ ‑

HIS HONOUR:   Just a minute.  There is a draft order nisi here somewhere.

MR O’BRIEN:   Yes, there is, your Honour.

HIS HONOUR:   Yes, I have it.  Now, has there been one draft order nisi or there is more than one?  Yes, I have it.

MR O’BRIEN:   There were a number of attempts but I hope the final version your Honour got.

HIS HONOUR:   Yes, I do.  It was faxed, I think, on 18 July.  It is a document of three pages ‑ ‑ ‑

MR O’BRIEN:   Yes, that is right.

HIS HONOUR:   ‑ ‑ ‑ and I am looking at – that is right – and 1(e) and 1(d) are the matters I have been raising with Ms Maharaj.

MR O’BRIEN:   Yes, that is right, your Honour.

HIS HONOUR:   Well, the matters that have been raised with her are the end of (d) and (e), are they not?

MR O’BRIEN:   Yes, they are, and (e) would include relief in the form of an interim injunction.

HIS HONOUR:   Yes, but I would not give it in the face of the Act.

MR O’BRIEN:   Yes, your Honour.

HIS HONOUR:   Unless you want to persuade me otherwise, but I cannot see how I could.

MR O’BRIEN:   I appreciate your Honour’s difficulty in that respect and I do not have ‑ ‑ ‑

HIS HONOUR:   It all hinges on the 501 decision being that special category which triggers the other section ‑ ‑ ‑

MR O’BRIEN:   Yes.  I agree with your Honour in that respect.  It is our case, your Honour ‑ ‑ ‑

HIS HONOUR:   Now, as to the – just let me ask about (a), (b) and (c).  That is what you are now coming to, I guess:  1(a), (b) and (c), mandamus, prohibition and certiorari.

MR O’BRIEN:   Yes, your Honour.

HIS HONOUR:   Now, are they directed to the 501 decision?

MR O’BRIEN:   They are.

HIS HONOUR:   I see.  Yes, thank you.  Now, is not that 501 decision ‑ ‑ ‑

MR O’BRIEN:   Subject to 474?

HIS HONOUR:   That is what I am worried about, yes.

MR O’BRIEN:   Yes.  Well, if your Honour would give me a moment, I will just develop the case we were going to put.

HIS HONOUR:   Yes.

MR O’BRIEN:   Your Honour has read the affidavit of Ms Reed?

HIS HONOUR:   Yes.

MR O’BRIEN:   It is our case that when the Minister came to make his decision as to whether to grant or refuse the parent visa there were two consequences which he had to keep in mind.  There was one, the consequence of a refusal of the parent visa itself, and there was also the consequence that if he did refuse it, automatically section 501F(3) came into operation and the applicant thereby automatically lost his liberty for the reasons your Honour has already set out.

It is the applicant’s case that when the Minister invited the applicant to make submissions in a letter dated 28 February which appears as, I think, the first exhibit, or part of the first exhibit, to the affidavit of Ms Reed, the Minister should have informed the applicant that one of the consequences of refusal would be that, by virtue of 501F(3), his liberty would have been lost and should have invited the applicant to put submissions as to what impact that would have on him, both on him emotionally, financially and, more importantly, what impact it would have on his family emotionally and financially.  Also what impact it would have on him in terms of prosecuting his special leave application in relation to the protection visa that he is seeking.

HIS HONOUR:   Yes.  Just to get it on the transcript, that is matter No A94 of 2002.  That is the pending special leave application.

MR O’BRIEN:   No.  That is this matter.  That is this one.

HIS HONOUR:   That is this one.  The pending leave application is A1, I am sorry, A1 of 2002.

MR O’BRIEN:   Yes.  I am informed that it is, your Honour.

HIS HONOUR:   Yes, that is right.

MR O’BRIEN:   So there were three categories of consequences that an immediate loss of detention could impact upon:  one, on the applicant himself personally; two, on his family; and, three, on his special leave application.  Now, no submissions were invited at all.  The applicant was never told that this consequence would flow.  The applicant was totally taken by surprise when two days after the decision was made he was summarily arrested.  So it is the applicant’s case that this was a fundamental denial of natural justice in that regard.

If the applicant were to be able to proceed in disregard of section 474, it is the applicant’s case that on the authorities the Minister acted without jurisdiction, his decision should therefore be set aside.  But your Honour rightly is concerned with the terms of 474 and it is the applicant’s case – the applicant has available to him three categories of argument:  one, as your Honour is no doubt aware, there are challenges currently in the system that 474 is unconstitutional.

HIS HONOUR:   That is right.

MR O’BRIEN:   And this will be just another case.  There is also two decisions handed down in March and April by the Federal Court, one by his Honour Justice Finkelstein, the other by his Honour Justice Gyles, concerning the interpretation of 474 and those authorities – one I mention on my list of authorities, and that is in NACO.  The other is ‑ ‑ ‑

HIS HONOUR:   Kwan, is that right?

MR O’BRIEN:   No – sorry, you are right, your Honour.  Kwan is the decision by Justice Finkelstein and the decision by Justice Gyles is the decision of NAAX and if your Honour will bear with me for one moment, I can give your Honour the citation to that.  I only have an internet citation.  I understand from my friend that that case has gone to the Full Court.  Those two authorities deal with the question of how 474 should be interpreted and so those matters are still in limbo.

There is a third aspect to this case which, in my submission, is somewhat peculiar to this case.  If I could take your Honour to 501F(3), I can illustrate the point I wish to make.

HIS HONOUR:   Yes.

MR O’BRIEN:   Section 501F(3) states:

If:

(a)   the person holds another visa; and

(b)  that other visa is neither a protection visa nor a visa specified in the regulations –

and we take it that the bridging visa fall into neither of those categories –

the Minister is taken to have decided to cancel that other visa.

In other words, his decision is a deemed decision.  If it is a deemed decision, is it protected under 474?  Under 474, your Honour, it would be our submission that 474 only protects actual decisions, not deemed decisions.  If the denial of natural justice goes to the deemed decision and not to the actual decision, then it is our submission that no protection is provided by the privative clause in 474 of the Act.

HIS HONOUR:   Just let me make sure I understand that.  How do you get over the application of 474 to the 501 decision?

MR O’BRIEN:   What we say is this, and if I may, for example, quote from your Honour’s joint judgment with Justice Gaudron in the Darling Casino Case, and I think your Honour is familiar with that.

HIS HONOUR:   Yes.

MR O’BRIEN:   Your Honour starts with the fundamental proposition that the Hickman principle is a principle of construction.

HIS HONOUR:   Yes.

MR O’BRIEN:   It is a principle of construction and if one expands the jurisdiction of the decision‑maker by virtue of that principle of construction, then you look to the words of the privative clause to decide what jurisdiction is being expanded.  Is it a jurisdiction to decide the actual decision or is it the jurisdiction to decide both the actual decision and the deemed decision.  In our submission, if the word “decision” in subsection (2) refers only to actual decisions, that expansion can only go to the actual decision.  It cannot go to the deemed decision.

HIS HONOUR:   Yes, but I am not talking about 501F(3), I am talking about 501 itself, the character decision.  That is an actual decision.

MR O’BRIEN:   That is an actual decision and ‑ ‑ ‑

HIS HONOUR:   Certainly 474 bites on that, I guess.

MR O’BRIEN:   It does bite on that, on the actual decision, but in so far ‑ ‑ ‑

HIS HONOUR:   Yes, but that – yes.

MR O’BRIEN:   Sorry, your Honour.  I interrupted.

HIS HONOUR:   It bites on the actual decision on the character grounds and it is the natural justice in relation to that which you agitate.

MR O’BRIEN:   No.  We agitate the natural justice in relation to the consequential decision.  We say the denial of natural justice went entirely to the consequential or deemed decision.  We were not told of the consequences of a refusal.  We were not invited to put submission as to the detrimental effect a refusal would have given that it would involve a loss of liberty.

HIS HONOUR:   I know that, but that is all in the context of the process in relation to the actual 501 character decision, is it not?

MR O’BRIEN:   It is all in part of that process ‑ ‑ ‑

HIS HONOUR:   In the process of that, you say, “The Minister should have had in mind that if he went ahead with that, that would trigger 501F(3) and that would prejudice us in various respects, including the prosecution of the special leave application.”  But it is tied back into the 501 cancellation of character grounds process and to that, it seems to me, 474 attaches.  It may be you are right, that 474 does not attach to the 501F(3) decision because it is not an administrative decision in the sense there is no choice, it is automatic.

MR O’BRIEN:   Yes, it is automatic.

HIS HONOUR:   Yes, but if there is no 474 there, how would one challenge 501F(3) operation, as it were?  It is automatic.  There is no administrative decision to challenge.

MR O’BRIEN:   That is right.

HIS HONOUR:   That is the problem, I think, from your point of view.

MR O’BRIEN:   But we focus on the 501(1) decision.  We say 501(1) decision involves two steps or two consequences and when the Minister makes a 501(1) decision, which will have the consequence in the case of a refusal of triggering a loss of liberty, the Minister has to bring that to the attention of the applicant.  That would be the case absent 474 under the rules of natural justice.  Your Honour then says but 474 protects that very decision, 501(1), with which we do not argue at this stage.  But what we say is that if you follow the line of authorities that begin with the decision in Hickman and go up and include the decision of your Honours in the Darling Casino Case, that it has been made abundantly clear that a private clause operates as a rule of construction and what it does is it expands the jurisdiction of the decision‑maker so that ‑ ‑ ‑

HIS HONOUR:   Yes, I know, but all I am putting to you is 501F(3) is not a private clause.  It is not a Hickman clause.

MR O’BRIEN:   A private clause decision?

HIS HONOUR:   Yes.  It is not a decision.

MR O’BRIEN:   Yes.  Well, it is a deemed decision.

HIS HONOUR:   That is right.  Yes.  So what would you have me do?

MR O’BRIEN:   Well, the basis of our case in terms of the arguments which we would put is pretty well set out in the affidavit of Ms Reed.  That is the case which we would be putting, subject to one other affidavit material coming from the applicant setting out what representations, submissions, he would have made to the Minister had he known that his liberty would be lost in the event that the Minister refused his application for a parent visa.  So we would seek leave to file that further affidavit material and, as far as I perceive, that cannot be controversial because this is merely what the applicant is saying he would have said had he known what consequences were to follow.  Then it would be my submission that that matter can be set down for argument and it ought not to take very long because the argument is an argument of law, most of which can be reduced to writing by way of written submissions.

HIS HONOUR:   Yes, very well.

MR O’BRIEN:   With a short oral argument.

HIS HONOUR:   Yes.  Now, I take it implicit in what you are saying is that we would be construing these provisions.  We would not be entering into any questions of validity.

MR O’BRIEN:   I would need to get some instructions on that, but I think the position my client takes is this that my client apprehends that were we to go into questions of validity, such as constitutional validity, my client will be sitting in detention for a very long time, or arguably for a long time ‑ ‑ ‑

HIS HONOUR:   I think that could be right.

MR O’BRIEN:   ‑ ‑ ‑ and my client is anxious to obtain his freedom and, in those circumstances, he would have to jettison those constitutional arguments.

HIS HONOUR:   Yes, I understand.

MR O’BRIEN:   I just would like to get some instructions on that point.

HIS HONOUR:   Yes, all right.  Can you get those instructions fairly soon or ‑ ‑ ‑

MR O’BRIEN:   I can get them now.

HIS HONOUR:   I will take a short adjournment.  You will need to talk to your client.

MR O’BRIEN:   Okay, thank you, your Honour.

AT 10.24 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.34 AM:

HIS HONOUR:   Yes.

MR O’BRIEN:   Thank you, your Honour, for that adjournment.  I have sought instructions and my client is happy to jettison the constitutional argument and just go on with the question of interpretation.

HIS HONOUR:   All right.  Well, I hear what – perhaps I should indicate before that, that being so, the Court is coming to Adelaide, as you know, in August and I would aim to get it ready for hearing on a final basis on the first day of the Adelaide sittings, which is 12 August.  We sit in the Full Court at 2.15, but I would take this matter myself on that day at 10.00 am.  Is that convenient to you, Mr O’Brien?

MR O’BRIEN:   I have an arbitration on at that time but I think I can seek an adjournment for half a day in relation to that matter.

HIS HONOUR:   Yes.

MR O’BRIEN:   That should not be a problem for me.

HIS HONOUR:   Good, thank you.  What about you, Ms Maharaj?

MS MAHARAJ:   I have another commitment, your Honour, but something can be sorted out in relation to that.

HIS HONOUR:   All right.  It would be good if you could come to this matter, I think, seeing you are familiar with it.

MS MAHARAJ:   Yes.

HIS HONOUR:   Yes, all right.  What I would propose for comment by counsel is that any further affidavits by the applicant be filed and served by 24 July, affidavits by the respondent by the 29th, applicant’s written submissions by 2 August, the respondent’s by 8 August, which is the Thursday before we come to Adelaide, then I would set the application down as one for final relief before me in Adelaide on 12 August at 10.00 am.  I would certify for counsel this morning and I would give liberty to apply on three days notice and reserve costs.  Would counsel just take a moment to think about that.

MR O’BRIEN:   Yes, your Honour.  I am happy with that timetable, your Honour.

HIS HONOUR:   Yes, very well.

MS MAHARAJ:   The timetable suits us as well, your Honour.

HIS HONOUR:   Yes.  Well, I will give directions as indicated and I will adjourn the further hearing to the Adelaide sittings as indicated at 10.00 am on 12 August.  There is nothing else I do not think this morning.  Very well, I will now adjourn.

AT 10.37 AM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 12 AUGUST 2002