Applicant S187-2002, Ex Parte - Re MIMA
[2002] HCATrans 317
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S187 of 2002
In the matter of -
An application for Writs of Prohibition, Certiorari and Habeas Corpus against THE HONOURABLE PHILIP MAXWELL RUDOCCK, THE MINISTER FOR IMMIGRATION AND MULTICULATURAL AFFAIRS & ANOTHER
Respondents
Ex parte –
APPLICANT S187 OF 2002
Applicant/Prosecutor
KIRBY J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON MONDAY, 19 AUGUST 2002, AT 12.26 PM
Copyright in the High Court of Australia
MS R.M. HENDERSON: If the Court pleases, I appear for the first and second respondents. I understand that the prosecutor will be appearing in person. He is a person in detention and, I think, may be just outside the Court. (instructed by the Australian Government Solicitor)
HIS HONOUR: The applicant is present at this level of the Court, is he?
MS HENDERSON: I have observed him sitting outside the Court earlier today, your Honour, so I do understand him to be about.
HIS HONOUR: I have asked the officer to bring in the prosecutor in the third application.
Are you the applicant in the third application?
APPLICANT S187/2002: Yes, your Honour, yes.
HIS HONOUR: I will not use your name because of the experience in the last case, we will just call you the applicant. But you are the applicant in person and you do not have a lawyer to represent you, is that correct?
APPLICANT S187/2002: That is correct, your Honour.
HIS HONOUR: Your first language is the Romanian language, is that correct?
APPLICANT S187/2002: Romani language.
HIS HONOUR: The Romani language?
APPLICANT S187/2002: Yes, Romani and second language is Romanian and third language is English.
HIS HONOUR: There is an interpreter, as I understand it, who has been brought to the Court, an interpreter in the Romanian language, is that correct.
APPLICANT S187/2002: Yes, that is correct, yes.
HIS HONOUR: Do you ask for the assistance of that interpreter? You seem to be able to speak pretty well in English? After all you have been here since 1980?
APPLICANT S187/2002: Of course, well, is not necessary.
HIS HONOUR: Do you want the interpreter sworn just in case you need some help?
APPLICANT S187/2002: Maybe a few words now and then.
HIS HONOUR: Yes.
CARMEN M. GONTA, sworn as interpreter:
HIS HONOUR: Thank you very much. You may sit at the Bar table with the applicant because I do not think he needs formal translation but simply assistance from time to time.
THE INTERPRETER: Yes.
HIS HONOUR: Would you move closer to the centre please, applicant, and the interpreter will sit next to you.
Now, I saw in your papers that you were going to ask for an adjournment today. Is that correct or not?
APPLICANT S187/2002: That is correct, your Honour.
HIS HONOUR: What is the basis of your application?
APPLICANT S187/2002: Yes, first of all would be advised to say I have no glasses.
HIS HONOUR: You do not have your glasses?
APPLICANT S187/2002: Yes, there was an incident between me and two officer in correctional centre which I was segregated for 14 days. I been beaten up and my glasses been broken and ‑ ‑ ‑
HIS HONOUR: You had better come to the centre, please.
APPLICANT S187/2002: Now I would like to tender that document just to affirm something. Is not much relevant but ‑ ‑ ‑
HIS HONOUR: Have you seen this document Ms Henderson?
MS HENDERSON: No, your Honour.
HIS HONOUR: Yes, please show the document to Ms Henderson. Hand up the document. You do not object to my receiving the document, do you, Ms Henderson?
MS HENDERSON: No, your Honour.
HIS HONOUR: What is the relevance of this to the application for adjournment?
APPLICANT S187/2002: Yes, your Honour, well, I am not presuming that I will make an allegation here. Just there was an incident that the thing is, to show that I have been segregated and I could not really make a proper submission. I did not have a facility and ‑ ‑ ‑
HIS HONOUR: This letter that you have handed me appears to have nothing to do with the matter. It is a letter from a firm of solicitors who have previously acted for you in relation to an alleged assault in prison by prison officers on 25 July 2002.
APPLICANT S187/2002: That is correct.
HIS HONOUR: It says that you have been charged in relation to that assault and asks for a copy of the details of the offences to be provided. The letter is addressed to the Commissioner for the Department of Corrective Services.
APPLICANT S187/2002: That is correct, your Honour.
HIS HONOUR: It has nothing to do with an application for adjournment, it has nothing to do with the absence of your glasses.
APPLICANT S187/2002: Yes, the thing is that I have been assaulted. There was a witness, and this I am not going to go into the case because I did drop it. I was beaten up, I was my eyes like that and I was in a cell for 14 days and one week later the governor come and withdraw the charges on me because I did not assault nobody. I was the one who has been assaulted, been beaten up like that and I was very sick. I have nightmares and I still do not feel good. But the thing is I do not possess the eloquency of speech into this Court and I do not carry the language of the Court and to proceed with such complicated and abstract decisions. The thing is what I know as a matter of fact that I am refugee in this country, I am still resident in this country ‑ ‑ ‑
HIS HONOUR: You claim that but those matters have been determined against you, as I understand it?
APPLICANT S187/2002: Yes, there was a numbers of an error by the Deputy President of the court - did not give me opportunity to agitate the matter. He promise me that “Mr B”, he said, “do not argue this matter with me, leave the documents with me” and he give me six weeks and “I will make a decision, and that decision will be in your favour and you will not be disappointed.”
HIS HONOUR: That would be most unusual in an Australian court or tribunal, most unusual. I would find that difficult to believe.
APPLICANT S187/2002: Ms Watson is a witness, the Government Solicitor, she was very ‑ ‑ ‑
HIS HONOUR: I could understand that it was said that “You do not have to argue the matter orally if you do not choose to and I will look at the matter and it is decided on the papers.” That is not at all uncommon.
APPLICANT S187/2002: Your Honour, the Deputy President he promised me to let my evidence with him in ‑ ‑ ‑
HIS HONOUR: Yes, I would not accept in the absence of a transcript that he promised you that he would make the decision in your favour.
APPLICANT S187/2002: And I will not be disappointed or disadvantaged. To me, my psychiatrist…..witness, numbers of people witnesses and the respondent witness. I am not arguing that, but my argument is that I think there was wrong jurisdiction of an error, it was an error of a wrong jurisdiction because AAT to examine whether I am refugee or not which the respondent knows as a matter of fact that the applicant come in Australia 1980 under the Refugee Convention ‑ ‑ ‑
HIS HONOUR: Yes, but at the moment I am considering your application for an adjournment. What is the foundation for the application?
APPLICANT S187/2002: Yes, the foundation is that ‑ ‑ ‑
HIS HONOUR: You said you do not have your glasses?
APPLICANT S187/2002: Certainly I am not a lawyer to argue on points of law, I am not qualified, and I do not have a facility to do research or to prepare my case or to make a submission with 23 hours lock up in a cell, two people in a cell. I am living now with someone who has been convicted of murder for life, but that is not important that. To me it is ‑ ‑ ‑
HIS HONOUR: But you have commenced the proceedings in this Court. This is the highest Court in Australia. The matter has been returned today.
APPLICANT S187/2002: Yes, your Honour.
HIS HONOUR: It is before me. Counsel for the Minister is here. I am here. The matter is returned. You have been brought in from immigration detention ‑ ‑ ‑
APPLICANT S187/2002: From Long Bay Gaol Correctional Centre.
HIS HONOUR: ‑ ‑ ‑ and the case is before the Court. Normally it would proceed and I do not really see why it should not. If you have difficulties in expressing yourself or dealing with points of law, so far as I could, I would endeavour to clarify the law as it applies to you, but the fact that you have not got legal representation or other representation is not unusual for people who are in custody and the fact that you do not have a speech ready is not necessarily fatal to your being able to present whatever case you have. Speeches are not what decide these matters, it is substance.
APPLICANT S187/2002: Is the substance, it is correct, yes and references. As I did had with the help of a friend, I prepare some submission which I believe that submission was tendered to the Court.
HIS HONOUR: Yes, I have the written submissions. Just sit down for a moment and I will ask Ms Henderson what is the attitude of the Minister to the application for an adjournment.
MS HENDERSON: Your Honour, my instructions are to oppose the application.
HIS HONOUR: Yes. Just let me clarify, is your application on the basis that you cannot read your submissions because you do not have your glasses or is your application because, by reason of not having your glasses, you have not prepared a speech?
APPLICANT S187/2002: No, is nothing wrong with my speech, your Honour. My glasses ‑ I also have a bit post-traumatic stress disorder.
HIS HONOUR: I am sorry?
APPLICANT S187/2002: Post-traumatic stress disorder, post-traumatic stress disorder.
HIS HONOUR: That is an ocular disorder, is it, to your eyes or to your brain?
APPLICANT S187/2002: No, it is mentally.
HIS HONOUR: Yes, what of it? That will not go away, you will have that the next time the matter is before the Court. You are in immigration detention and it is desirable that, one way or the other, the matter should be resolved.
APPLICANT S187/2002: Yes. I could not prepare, I have no facility to prepare submission like the respondent to be equal with the respondent, to prepare submission and to identify it.
HIS HONOUR: I think you have, in fact, prepared ‑ ‑ ‑
APPLICANT S187/2002: That is not my submission, your Honour, it was a friend.
HIS HONOUR: No, you have prepared a document which is an affidavit by you and you prepared the draft order nisi by you.
APPLICANT S187/2002: But at that time I had the glasses, your Honour.
HIS HONOUR: Yes, and they set out the basis on which you are making this application, so why is that not enough for you to use to proceed with your application today? This has a very long history and you have been through a lot of courts and you have been through the Administrative Appeals Tribunal and the Federal Court and now you are in the highest Court in the country.
APPLICANT S187/2002: Yes.
HIS HONOUR: I think the matter should proceed.
APPLICANT S187/2002: But if I am not a lawyer, your Honour, I do not know what to identify ‑ ‑ ‑
HIS HONOUR: You will not be lawyer next time.
APPLICANT S187/2002: Sorry?
HIS HONOUR: You will not be a lawyer next time the matter is before the Court, you will not have legal qualifications at any time in the foreseeable future and, therefore, that is not something that is going to change. Would you translate that for the applicant please.
APPLICANT S187/2002: Thank you very much. Yes, your Honour, what I understood, section 80 rule 4 of this Court, a lawyer if the interests of justice require, applicant should have a pro bono.
HIS HONOUR: I do not have any power to order a lawyer to represent you.
APPLICANT S187/2002: Not to order a lawyer, I am sorry, your Honour, not to order a lawyer but if the Court is not impose any duty of this Court but if the Court considers that the applicant should need a lawyer or they consider in case of justice require, I think rule 4, section 80 of the Court.
HIS HONOUR: Section what?
APPLICANT S187/2002: Section 80, rule 4.
HIS HONOUR: Section 80 of what?
APPLICANT S187/2002: Of Federal Court.
HIS HONOUR: What is that section?
APPLICANT S187/2002: I just read it in section 80 and rule 4, Federal Court Act.
HIS HONOUR: I do not know what you are referring to, I am afraid.
APPLICANT S187/2002: I would like to give you a copy, your Honour, if I find a copy.
HIS HONOUR: I have been sitting here for nearly seven years and I have never heard of a power in the Court to order a lawyer to represent a person.
APPLICANT S187/2002: Yes, I see it is not an order.
HIS HONOUR: Sometimes the Court will suggest, sometimes where the Court grants special leave to appeal and the case is a strongly arguable case, the Court will suggest to the Bar that a person be represented, but your case does not fall within that class.
APPLICANT S187/2002: Yes, it is a Federal Court rule, 1979 No 140 consolidated to 13 July 2000 ‑ ‑ ‑
HIS HONOUR: Give that to my associate and that will be handed up. Do you know this order, Ms Henderson?
MS HENDERSON: Your Honour, I think it may be, as my instructing solicitor suspects, a provision in the Federal Court Act but not in the Rules of this Court.
APPLICANT S187/2002: Federal Court Act.
MS HENDERSON: Federal Court Rules my instructing solicitor corrects me, and he is quite right about that.
HIS HONOUR: Yes, hand it up please. You handed up Federal Court Rules 1979 as consolidated on 13 July 2000, Order 80. This is a document which relates to the rules of the Federal Court of Australia. You are not now in the Federal Court of Australia, you are in the High Court of Australia. There is no rule which is equivalent to that rule in the Rules of the High Court of Australia and that is why you are here now. There is no prospect that such a rule would be made between now and any time when the case came back before me and, therefore, there is no reason for me to adjourn your case in order that you can get a facility which the Court does not provide you with.
I realise that it is difficult for anybody who is not legally trained to represent themselves and my duty is to try to assist you as far as I can.
APPLICANT S187/2002: Thank you, your Honour.
HIS HONOUR: But I am not promising you that you will succeed and I do not want you ever to come before any court saying I promised you that. Your case will be heard strictly on its merits, but I cannot order that there be a legal representative to appear before you. That is a rule of the Federal Court. Whether it would apply in the Federal Court in a case such as is now before me I do not know, but I return that document to you. It is not relevant to these proceedings. It is not your mistake that you do not realise that there are different rules for different courts but that is not a rule of the High Court of Australia.
APPLICANT S187/2002: Your Honour, I apologise. Okay, what ‑ ‑ ‑
HIS HONOUR: I think you had better act on the basis that I am not going to adjourn your proceedings on the footing that you have indicated so far.
APPLICANT S187/2002: Fair enough, your Honour.
HIS HONOUR: If at some stage it appears that you cannot proceed, either because you do not have a representative or because you cannot read documents or have not had time to prepare because of your lack of glasses, then I will do what I can to protect you but, otherwise, I think we should proceed today because you commenced these proceedings and they are commenced before this Court today and I am here; Ms Henderson is here;
costs have been run up; you are here; you have been brought out of immigration detention and I think the matter should proceed.
APPLICANT S187/2002: Correctional Centre. I am with sentenced prisoner.
HIS HONOUR: I am sorry?
APPLICANT S187/2002: I am with a sentenced prisoner, your Honour. I am not in immigration detention. I have been from the high security prison, brought from the cells here. I am not in detention centre.
HIS HONOUR: No, you are in immigration detention.
APPLICANT S187/2002: I am in high security prison of Australia, Long Bay Correctional Centre.
HIS HONOUR: Yes. Is the applicant in detention or is he at large? Ms Henderson, can you help me on that?
MS HENDERSON: The applicant is held in immigration detention at the Long Bay Prison.
HIS HONOUR: Yes, but he has been allowed to come in today? Is he escorted by an officer of the prison or not?
MS HENDERSON: I observed a person with him who I took to be an officer of the prison
HIS HONOUR: Yes, is that ‑ ‑ ‑
MS HENDERSON: It may be that – forgive me interrupting your Honour – it may be that an officer has been arranged by the Commonwealth on this occasion since he is not strictly a State prison.
HIS HONOUR: I follow.
MS HENDERSON: So it could be that the officer I observed was a person appointed by the Commonwealth but ‑ ‑ ‑
APPLICANT S187/2002: Yes, it is two officers from the Department of Immigration, which understand, is not the Correctional Centre officers.
HIS HONOUR: I follow, yes.
APPLICANT S187/2002: Yes, well, if we have to go ahead, yes, I will accept that and ‑ ‑ ‑
HIS HONOUR: It is a quarter to one now and I have to give a decision in the previous case which I have to give at 2.00 so I am going to adjourn now for lunch and I will list your case for 2.15 and you should come back at 2.15 and then we will go on with your case. So would you come back at 2.15. Is the officer in Court who is your escort?
APPLICANT S187/2002: Yes.
HIS HONOUR: Can you make arrangements for the applicant to have some lunch between now and 2.15 and to come back at 2.15. Is that convenient for the interpreter to be back here at 2.15.
THE INTERPRETER: Yes, your Honour.
HIS HONOUR: Very well, I will resume the hearing of this matter at 2.15 pm. The Court will adjourn until 2 o’clock.
AT 12.47 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.24 PM:
HIS HONOUR: Yes, you were beginning to proceed to advance your case.
APPLICANT S187/2002: Yes, that was my intention for me today, your Honour, to withdraw this application and to start with a new application under section 39B but because I do not have legal representation, I do not have no facility to point it out and to proceed with this matter and to ‑ ‑ ‑
HIS HONOUR: If you withdraw the application, I am sure that the Minister would ask for a costs order against you and I would be obliged to make that order, I would think, subject to anything you have to say.
APPLICANT S187/2002: I realise that.
HIS HONOUR: Of course, whether the Minister would be able to get costs out of you, given your current predicament, is another question.
APPLICANT S187/2002: Yes.
HIS HONOUR: But it is up to you to decide whether you wish to press on with the application. If you do, I will determine it.
APPLICANT S187/2002: The reason was because if this application will succeed, I presume, you will probably will refer to a primary his Honourable Justice to the Federal Court. That is what worries me, to send me back under the points of law under section 39B which I think is section 45 of the 1975 Act of the AAT could be, is under the points of law because ‑ ‑ ‑
HIS HONOUR: I think you might again be looking at provisions of the Federal Court Act. I do not know what you are referring to, but you are now in the High Court and the High Court is not governed by the provisions of the Federal Court of Australia Act, we are governed by the High Court of Australia Act, the Judiciary Act and the Constitution.
APPLICANT S187/2002: Yes.
HIS HONOUR: I think we have to have some focus here, I am afraid, because this is a very busy Court and I am a very busy person, so that ‑ ‑ ‑
APPLICANT S187/2002: I understood that and also I am been locked up in prison for five years, 24 hours a day without sun.
HIS HONOUR: I realise that, I realise that, and that is why I am sitting today to hear your application.
APPLICANT S187/2002: Yes, I will not take long and, I am sorry, my vocabulary it is a bit lower than ‑ ‑ ‑
HIS HONOUR: No, no, you are doing fine, as you should because you have been here since 1980. It is a long time.
APPLICANT S187/2002: Yes, well, it is third language and is no doubt about I do understand the language and also the sense of humour of the Australian culture. Yes, I understand that. If I refer to affidavit, just in paragraph 1 of the affidavit on the application Form 55, that ‑ ‑ ‑
HIS HONOUR: Which affidavit is this?
APPLICANT S187/2002: Is just the 20 May 2000 ‑ ‑ ‑
HIS HONOUR: This is your affidavit, is it?
APPLICANT S187/2002: Yes, my affidavit S187 ‑ ‑ ‑
HIS HONOUR: Yes, I have a copy of that in the file. Has the Minister a copy of the affidavit of the applicant?
MS HENDERSON: Yes, your Honour.
HIS HONOUR: Is there any objection to the reading of the affidavit?
MS HENDERSON: Your Honour, there are some problems with relevance and so on but, given that it is drawn by a litigant in person, I will not take up the Court’s time with it.
HIS HONOUR: That is very sensible. Very well, I read the affidavit of the applicant which is dated 27 April 2002 and sworn by him. Yes, what paragraph of the affidavit do you wish to take me to?
APPLICANT S187/2002: It is the first paragraph ‑ ‑ ‑
HIS HONOUR: I am sorry, I am not referring to you by your name, but in the light of the last case, I do not ‑ ‑ ‑
APPLICANT S187/2002: My name is B and it is fine.
HIS HONOUR: Yes, but I do not want to name you in case somebody will one day say that you should not have been named, so we will just look at paragraph 5 of your affidavit.
APPLICANT S187/2002: Paragraph 1, page 4.
HIS HONOUR: Paragraph 1, yes?
APPLICANT S187/2002: Just I have to be more closer with my – the application has been brought into the High Court of original jurisdiction pursuant to section 75 of the Constitution, is in relation to a decision of the Administrative Appeals Tribunal made on 4 April 2002 and received by the applicant on 15 April 2002. The decision that the prosecutor/applicant is no longer a refugee as defined by the International Convention of Civil and Political Rights, ICCPR, and the 1951 Convention does not amount to a person in need of protection due to the legitimate fear of the persecution. What I understood, your Honour, section 75(v) of the Constitution it is normally original decision will be into the High Court to use the section ‑ ‑ ‑
HIS HONOUR: Section 75(v) of the Constitution permits the bringing of applications for constitutional writs in what is called the original jurisdiction of this Court.
APPLICANT S187/2002: That is correct, yes.
HIS HONOUR: That is on the basis that you are not appealing, you are coming straight to the Court for constitutional relief.
APPLICANT S187/2002: Right, yes.
HIS HONOUR: That is why it is called original jurisdiction.
APPLICANT S187/2002: Versus ‑ ‑ ‑
HIS HONOUR: Against appellate jurisdiction which is dealing with appeals.
APPLICANT S187/2002: Versus also the Minister of the Department of Immigration, the officer of the Commonwealth which is His Honourable ‑ ‑ ‑
HIS HONOUR: Yes, the Minister ‑ ‑ ‑
APPLICANT S187/2002: Philip Ruddock.
HIS HONOUR: ‑ ‑ ‑ is a named ‑ ‑ ‑
APPLICANT S187/2002: Officer of the Commonwealth.
HIS HONOUR: Yes, he is an officer of the Commonwealth and you have named – he is actually a constitutional office holder but ‑ ‑ ‑
APPLICANT S187/2002: That is correct, yes.
HIS HONOUR: ‑ ‑ ‑ treated as an officer of the Commonwealth and he is the first respondent to your application.
APPLICANT S187/2002: That is correct, your Honour.
HIS HONOUR: The second respondent is the deputy secretary, Mr Mark Sullivan, who is the delegate of the Minister who made the decision in your case, is that correct?
APPLICANT S187/2002: That is correct, your Honour. Yes, just enough to justify that, I am not going to take the Court’s time, I mean just enough to justify it, I have enough merits and this application should be granted.
HIS HONOUR: I have read the papers and I know something about the case, but you say what you want to say.
APPLICANT S187/2002: I presume that the Minister was acting on bad faith, did not act on natural justice. He was acting on a very mandatory and capriciously, if I could use that words, I do not like it to use it, but it is legal term, the legal word and I presume the Court will accept that word ‑ is direct to the deputy, the second respondent, by order sort of under section 5(1)(b) what I remember, I have not got it in front of me, an instrument signed saying, “Delegate the power to the delegate must deport this man or whoever” without give me opportunity to respond or to put up a submission. Already I was in prison at the time which deeply aggrieved, did not apply to the natural justice. The decision which the decision‑maker, the power he himself his Honourable Philip Ruddock he did exercise the power himself purporting what he intending, he did exercise the power. He exercised the power and also he give the power to deputy secretary to deport the applicant, like I said, without give him opportunity to respond or to put up a submission or to make a representation. Why should applicant not to be deported, why should he be deported?
The thing is the applicant he has been deeply aggrieved because he was in middle of the Family Court, your Honour, and there was a communication. They used some privilege, parliamentary privilege. I was not ready from today to show you that evidence but I just, like I remember, I just wrote one, two, three, four, five paragraphs because I did not like to put this in submission. This is the communication between some solicitor from Melbourne, some Peter Costello into the Cabinet and they used that privilege into the Tribunal which Tribunal are very, very nice people but they been induced of bias to make that decision five years later. Even here, I have not got the ‑ the respondent must have it in the file and the Tribunal has it in a file, but I will like to just ‑ I do not like to read it probably from the record, your Honour, but just from ‑ ‑ ‑
HIS HONOUR: Why do you not read it, why do you not read it out?
APPLICANT S187/2002: It is too small, I cannot see it.
HIS HONOUR: Perhaps the interpreter could read it for you.
APPLICANT S187/2002: Please, yes.
HIS HONOUR: This is your document, is it?
APPLICANT S187/2002: I just took some notes from the file.
HIS HONOUR: But you adopt the document? You are happy with the document? You want me to read it?
APPLICANT S187/2002: Yes, yes.
HIS HONOUR: Yes, perhaps it can be read in open court so that everyone can hear, including the representative of the Minister.
APPLICANT S187/2002: Because is too small for me.
THE INTERPRETER:
On the 21, May 1997 Anthony Gerard Bourke (Solicitor) did make application to the District Court of New South Wales at Sydney for Certificate of Conviction for the applicant. It is submitted that such documentation should not have been made available to him as this was, and continues to be confidential information, it is further submitted that Mr Bourke nor his client were a party to any proceedings concerning the applicant.
Mr Bourke on behalf of his client also sought assistance from the Honourable Minister Ruddock (Minister for Immigration) that Mr B be deported from the jurisdiction of Australia. The underlaying motive in seeking such assistance was to keep the applicant away from his daughter. The request was made with malice and ill intention, which fundamentally flawed and frustrated the legal process through which the applicant sought access to his daughter and personal belongings.
Furthermore on the above date a letter was sent to the Honourable P. Costello MP, seeking assistance for the obtaining of a deportation order against the applicant. That request was made to keep Mr Middleton appropriately informed of any developments. It also stated that similarities existed between the applicant’s case and that of Kevin Crowe who had shot and killed his estranged wife. It is submitted that no comparison could be made between the two cases and, such reference considerable prejudiced the applicant’s case.
It is also evident that the assistance sought from the Minister for Immigration was successful which is evidenced by letter dated 8th August, 1997 to Mr Bourke advising that “Mr B’s release date is 1 December 1997. You may be assured that I will be making a decision in respect of Mr B’s future before he is released”. Further to this the letter shows hand writing signed by the minister personally directing the department of immigration, and I quote “if there is any doubt about outcome should refer to me”.
HIS HONOUR: Who is that signed by?
APPLICANT S187/2002: The Minister of the Department.
THE INTERPRETER: No, it is not signed. There is a telephone number or file number.
APPLICANT S187/2002: Now, this paragraph ‑ ‑ ‑
HIS HONOUR: I do not know what all of that means.
APPLICANT S187/2002: That paragraph, that was handwriting by the Minister, by Mr Ruddock, on that letter informing the Department or the officer of the Department of Immigration if he have any problem with that, just like I said. Now, those documents were, your Honour, with my great respect to this Court, they was on the hand of the Tribunal. That Tribunal I do understand are very compassionate people and they are wonderful people and I do not think that the Tribunal could ‑ they were in force another way to make a decision on policy of Mr Ruddock or inducement, should I say that, because it seems to me a bias because is….the rule of bias which the rule of bias probably I will read it to you if I have it which I believe the Tribunal has informed that to make it a decision for me to be deported. But already the Minister exercised that discretion in the power, he was the officer of the Commonwealth what I understood myself, living so long in this country and I am interested in Australian Constitution and laws of the country, I understood once the Minister made the policy I understood he could, any Minister, depart from the policy. He can divorce from the courts or he can divorce – I mean, I understand section 71 of the Constitution which is legislative power, and executive power, and judicial power.
Now, for the Minister to come to me to interfere with my trial, to me it is a miscarriage of justice, I call this, because to me it is not natural justice. On one hand, say, “Will give him opportunity to go to the Tribunal”, on the other hand, we send the documents behind and say, “Well, that is not fair”. It is not only those but other numbers of issues because the Minister never referred to deport me, really. They was preferring to hold me in custody, your Honour.
HIS HONOUR: The problem is this. I am not sitting here in an appeal from the Minister or the delegate or the Federal Court or anyone else. I am sitting here hearing an application for the issue of constitutional relief.
APPLICANT S187/2002: That is correct.
HIS HONOUR: Now, that is a very different thing from hearing an appeal or dealing with the merits of your case. I cannot, I have no legal authority to deal with the legal merits of your case or the factual merits. I can only deal with your case if you can show that there is an error of jurisdiction that one of the officers of the Commonwealth who you have named has stepped outside his legal power and has acted without power or has acted without natural justice or with bias or contrary to the normal prescriptions of the exercise of that power. That is all I can do, I cannot ‑ ‑ ‑
APPLICANT S187/2002: Yes, that is correct, I do understand that and I will take your view, your Honour. Yes, your honourable Justice, Peter Costello, yes, of course, he has been influenced by those people ‑ ‑ ‑
HIS HONOUR: You say that but there is no evidence of that.
APPLICANT S187/2002: Is no evidence, your Honour, because I am surprised I noticed for one and a half weeks take me from cell and bring me to Court, I was not prepared, like I said today. Now you enforce me to prepare that.
HIS HONOUR: You have had your case returned before the High Court of Australia. That is the highest Court in this land.
APPLICANT S187/2002: I do understand this, yes, your Honour.
HIS HONOUR: You have brought proceedings in the Court and they have been returned before me today and I was notified that they were coming into the Court about two or three weeks ago and I assume that you would have been told about the same time.
APPLICANT S187/2002: I was in segregation, your Honour.
HIS HONOUR: Yes.
APPLICANT S187/2002: Segregation is we do not get nothing on segregation, we do not get informed, we do not get ‑ is a punishment. I just, like I said, one week really. Now we have lock up 23 hours in the cells down the Bay because I am in a hospital down the Bay now, I am in a hospital because of a tumour of my spinal cord and I am so sorry I would like to help the Court so much but because you ask me to go ahead today, I do understand you are very busy and I could not, my documents I am not allowed to have it in a cell, hard-cover book or anything like that, it is high security prison. They are…..and, by the way, when I move down to Long Bay, in and out from Long Bay and Silverwater, they lost a box of documents. I, today ‑ just a week ago, prison aide, she was very lovely lady, she locate it for me and she has all my documents, your Honour. That is why is said to adjourn the case from a week or two weeks or only if I can write the submission by hand and will be easier to justify two or three points and ‑ ‑ ‑
HIS HONOUR: Did you notify the Court that you were going to apply for an adjournment?
APPLICANT S187/2002: I just rung up. I rung up and I have a friend of mine who work next to the governor, should I say. He on my behalf, he sometime he ring the Court and I said I have to ask for an adjournment but I did not put anything in writing, your Honour. It is such a short period of time, sometime the prisoner officers go on strike to Tuesday and Wednesday, we all lock up all day. See, it is very hard, and I understood it, I feel ashamed of myself, I do.
HIS HONOUR: Yes.
APPLICANT S187/2002: That is why I say, if I have nice ‑ the submission, even to write the submission and to identify and to support the case why leave should be granted and I would like to secure my legal representation. Also I have my case court in the Family Court, the Court of Criminal ‑ ‑ ‑
HIS HONOUR: You keep mentioning the Family Court, but I am not dealing with any application from the Family Court. That has nothing to do with me.
APPLICANT S187/2002: Yes, I know that, I know you have nothing to do, but the thing is it is a reason that deportation order to be put aside because I can be forever in prison and I cannot go nowhere.
HIS HONOUR: You mentioned the killing of a person’s wife, that was not your partner, was it? Your daughter’s mother is still alive?
APPLICANT S187/2002: No, I save my wife, yes, I save her life.
HIS HONOUR: She is living in Melbourne, is that correct.
APPLICANT S187/2002: No, she is living in North Shore somewhere, in North Shore. It is her parents. I just sent some beautiful presents this week for my daughter’s birthday on 12 September. But the thing is, no, they was compare me with a case, your Honour, it is leading that I am a dangerous man, I commit an abhorrent crime which it does not exist, does not exist me committing an abhorrent crime. No, I was a victim myself. I did with my rehabilitation, I become very successful, I make a contribution to this country which no many people made that contribution what I made and I continue to make a contribution to this country. I am an artist, I developed great skill of art and my dream is to reach, Paris and New York, and if this government give me opportunity that is because I show something from the community and not from the political leaders. I did show something on the community and community loves me, I believe, you know. I think the application should be because I am not a member of the foreign power which leads to the Constitution, section 44 ‑ ‑ ‑
HIS HONOUR: I do not know what that has to do with it, your being a foreign power, that has nothing to do with it, nothing to do with the case.
APPLICANT S187/2002: I am not a citizen of any other countries. I am a resident of this country and political refugee.
HIS HONOUR: You are a resident of this country but you are not a citizen. You never became a citizen of Australia.
APPLICANT S187/2002: I did not become a citizen because I been advised first to refuse my citizenship to become one.
HIS HONOUR: I am not concerned with the reason. The fact is you came to Australia.
APPLICANT S187/2002: Yes, as a political ‑ ‑ ‑
HIS HONOUR: You virtually immediately became involved in a series of quite serious criminal offences. They continued over many years and even after you had been given a second chance by the Department of Immigration ‑ ‑ ‑
APPLICANT S187/2002: No, not, your Honour, that is not a fact – that is not a fact.
HIS HONOUR: That is what is set out in the report – in the decision of the Administrative Appeals Tribunal.
APPLICANT S187/2002: The Tribunal is like it is on basis of even my friend.
HIS HONOUR: Have you seen the decision of the Administrative Appeals Tribunal of 4 August 2002, Mr Handley?
APPLICANT S187/2002: Yes, I saw it and I have it in front of me, yes.
HIS HONOUR: He sets out on pages 3 and 4 and 5 the long series of your criminal history.
APPLICANT S187/2002: Yes, but that is wrong, cannot be justified.
HIS HONOUR: What do you dispute? Do you dispute that you were convicted in 1982 of stealing, sentenced to six months’ imprisonment which you served by periodic detention?
APPLICANT S187/2002: Yes.
HIS HONOUR: Do you remember that, 1982?
APPLICANT S187/2002: Well, your Honour, that is ‑ ‑ ‑
HIS HONOUR: That is two years after you arrived in Australia.
APPLICANT S187/2002: Well, your Honour, two years after I had a job I remember and I have two wages in my pocket and they stole my money, I was only little man, and I been thrown in prison without interpreter, without solicitor.
HIS HONOUR: What about coming to the end of it, the conviction in August 1995 of two counts of ‑ ‑ ‑
APPLICANT S187/2002: Supplying heroin.
HIS HONOUR: ‑ ‑ ‑ supplying heroin, do you accept that?
APPLICANT S187/2002: Well, no, no, I do not accept that.
HIS HONOUR: But were you convicted and sentenced to four years?
APPLICANT S187/2002: Convicted a convict and a criminal it is distinguished because I can be convicted from an admission which you ‑ ‑ ‑
HIS HONOUR: I am not concerned about that, I am concerned of whether you were convicted and sentenced ‑ ‑ ‑
APPLICANT S187/2002: Yes, your Honour, yes.
HIS HONOUR: ‑ ‑ ‑ to these very long sentences of imprisonment for supplying a prohibited drug.
APPLICANT S187/2002: There was a four years minimal term.
HIS HONOUR: I noticed one of them is of a commercial quantity of a prohibited drug.
APPLICANT S187/2002: That is not a fact.
HIS HONOUR: That says here:
4 August 1995 Convicted on 1 count of supplying a commercial quantity of a commercial drug – 4 years imprisonment.
APPLICANT S187/2002: Your Honour, it is not a fact, if I am a victim and the judge, she is Honourable Justice Angela Karpin, I made a submission for the Tribunal – I do not know if you did see the submission – which I pointed out she said “Actually, Mr B, on that submission the alibi was not affected and one year later he has been charged with commercial.” The reason I have been pleading guilty on that matters, your Honour, because you opened the door for me to argue that, is that I received numbers of threats in prison, my wife was raped by an Australian citizen, I been beaten up in a house, we were terrified to escape, two weeks later we been arrested, we charged, and I wanted to give evidence about those police into the Royal Commission. Now, I can justify the nature of that matter and I do not ‑ ‑ ‑
HIS HONOUR: I have read that you say that in some cases you were supplying some heroin to your partner ‑ ‑ ‑
APPLICANT S187/2002: Supplied to my partner.
HIS HONOUR: ‑ ‑ ‑ and on one occasion you saved her life.
APPLICANT S187/2002: No, I did not supply, your Honour. That is what I say, so much confusion. What happened, I explained, I was in the hotel and she went home and she took 500 out of my pocket. She went down the Cross, she scored drugs, she come back and I find her in OD and I save her life. And after I have to control her from drugs. Controlling her from drugs I have to find myself a dealer to buy. All my money went into her and after I get hooked myself, such a stupid I was.
But I saved somebody’s life, not only save her life, not only, your Honour, I was in prison which – that is why I am today here, I could be killed any time, any time on prison system I will be killed. I would like to point out, it was in evidence give my Mr Aub, Assistant Governor, to the Tribunal and I can be killed any time, yes, Mr Aub.
As Mr Deputy President of the Tribunal he made such a findings, he say “He is a dog, just kick him out of the country, is a dog, kick him out of the country”. That is what I understand. I cannot – again, would you like please to read for me what here “Mr Aub recalled an incident”.
THE INTERPRETER:
Mr Aub recalled an incident in about February 1997, when Mr B passed some information to him about another inmate of Silverwater whom, Mr B learned, had committed an offence in South Australia. As a result of the information provided by Mr B, this inmate was extradited to South Australia to face a charge of murder.
HIS HONOUR: Yes, I have read that. Yes, I saw that.
APPLICANT S187/2002: Now, those two elderly people, because I had a home invasion myself in my house two weeks before I been arrested and my wife been raped.
HIS HONOUR: According to the report in the Administrative Appeals Tribunal, you were doing quite a lot of home invasion yourself.
APPLICANT S187/2002: No.
HIS HONOUR: It says there repeatedly you were repeatedly convicted of break, enter, steal.
APPLICANT S187/2002: There is not a home invasion, I did not commit. I was drunk, I wake up in the police station, is four months. Your Honour, the magistrate when I went to court with no lawyer, he said, “Well, Mr B, if you plead guilty, you go home today”. No lawyers, no nothing, there was no evidence, I have not interpreter in the court ‑ ‑ ‑
HIS HONOUR: You say that but there is ‑ ‑ ‑
APPLICANT S187/2002: But there was no committing a crime, there was no fact, your Honour. I pleaded guilty as I ‑ ‑ ‑
HIS HONOUR: There were several convictions of stealing and then convicted in October 1984:
of break, enter and steal, and break, enter, and steal with intent – sentenced to 5 months hard labour on each of these two charges.
APPLICANT S187/2002: It could not be because I was probably working on a transmission line.
HIS HONOUR: February 1985:
Convicted of break, enter and steal.
September 1986:
Convicted of break, enter and steal ‑ ‑ ‑
APPLICANT S187/2002: September 1996?
HIS HONOUR: It was 1986 – 1985 and 1986.
APPLICANT S187/2002: No, your Honour. Well, your Honour, that is false because I had a trial and cost me $18,000.
HIS HONOUR: It is very unlikely that the Tribunal would have these ‑ ‑ ‑
APPLICANT S187/2002: Well, your Honour, you sit me up here from 15 days’ notice to me to argue this with post-traumatic stress disorder, mental disability, beaten up. This, to me, is not fair, your Honour, that is what I am arguing, is not fair. I am starting emotional, I am starting sweating, I starting crying because – I mean, I read about you from 1982, your Honour, I read about you such an intelligent man, I done even a portrait about you, now I know you give me a ‑ ‑ ‑
HIS HONOUR: Just take a glass of water. The fact is that your very long record of criminal convictions that are recorded by the Tribunal ‑ ‑ ‑
APPLICANT S187/2002: But this is nothing to do with leave to appeal, your Honour.
HIS HONOUR: It is very unlikely that the Tribunal would get those matters wrong.
APPLICANT S187/2002: Well, your Honour, I put in evidence – and the Tribunal said, “You go to the prison and I take that into account”, and I said, “He’s not going to be disappointed with me”, but five years later, to call me in Tribunal to make their decisions when me lock up in prison, I am going to write, whatever I write to David Hunt, one of the famous judges in ….., I write to him and I explain. Already I write and I am going to write to the Queen. I stay in prison and now you call it human rights, being beaten up and tortured. I am going to be knifed with save two Australian lives, I am going to be knifed and I cannot be deported to Romania? Because why I cannot be deported to Romania? I am gypsy as distinguished, I am not citizen of that country. What are you going to do to me? My question is a serious question to do now. What are you going to do to me? I am going to lodge a habeas corpus prove me why do you hold me in custody.
HIS HONOUR: But habeas corpus is only to require an authority to be given for why you are kept in custody. In your case that would be on the basis that you are a non‑citizen who is the subject of an order of deportation. The Minister has ordered that.
APPLICANT S187/2002: Yes, your Honour, but that notice of the Parliament is only section 220 of the Migration Act. It only says 75 hours, your Honour. It is not five years, your Honour, 75 hours. You might tell someone who knows the law, your Honour, but not me. I have been reading and I trust your Honour, I put so much trust your Honour. I know I did make mistakes. I am sorry. I am going all over the place.
HIS HONOUR: I am sorry too that you have got yourself into such a mess, especially because you have a daughter who is an Australian citizen, but ‑ ‑ ‑
APPLICANT S187/2002: Well, I do not have to, your Honour. I did not know when they made me – I refused my citizenship and left me with no citizenship. Now if I going to Romania to face a tribunal, military, what I did from Australia, from western world, this is not fair, your Honour.
HIS HONOUR: You say it is not fair but the law of Australia permits the Minister, if a person has been convicted as a non‑citizen of a punishment of more than a year, you can be deported.
APPLICANT S187/2002: Yes, your Honour, but ‑ ‑ ‑
HIS HONOUR: Many countries have provisions like that.
APPLICANT S187/2002: Okay, where is it? Bring the evidence. I ask the respondent to bring me evidence, and this is the evidence I have here.
HIS HONOUR: Yes, but look at the list of your convictions. You have had years and years and years of sentence.
APPLICANT S187/2002: That is not the record.
HIS HONOUR: Well, it is the record that was accepted by the Tribunal.
APPLICANT S187/2002: Well, it was accepted because of the Minister, he told them.
HIS HONOUR: It is not the worst but it is one of the worst lists of convictions that I have seen.
APPLICANT S187/2002: Well, I am sorry and I pay my debts and I make significant contribution to this country.
HIS HONOUR: Yes, but you are a non-citizen who has been convicted of ‑ ‑ ‑
APPLICANT S187/2002: I understand it and I am so sorry, your Honour, but how many times did I – I am a very mature man now.
HIS HONOUR: According to this you repeated over and over again.
APPLICANT S187/2002: How many time did I have to stay in prison? What are you going to do, to shoot me, to dump me in the ocean like – I am not going to…..That is what they do. To shoot me now, to get me killed in prison, your Honour?
HIS HONOUR: As I understand it, there is no requirement that you would be deported to Romania. It would be a matter of considering whether there was some other country that would accept you.
APPLICANT S187/2002: Okay, fair enough. One more thing is the detention was examined by one of the Bar associations. What the detention find? It was an unlawful; it is an unlawful. It is an unlawful. That is the evidence here.
HIS HONOUR: Anyway, just sit down for a moment and I will ask what Ms Henderson has to say. Ms Henderson, the applicant seems to be pressing his application for adjournment and I do not think the Minister is ever going to get any costs out of the applicant. The issue is whether ‑ ‑ ‑
APPLICANT S187/2002: I am so sorry. I got all my ‑ ‑ ‑
HIS HONOUR: You have had your say. You hold your tongue for a moment. I am a bit disinclined, as he is in detention and as a consequence of the adjournment of the matter would be that he would remain in detention and, as he has been in detention for about five years, I think – certainly he has been in custody for about five years – there does not seem to be any immediate hurry to get him deported. The situation may improve. He might be able to get some advice and come forward and put some sort of a case. What do you have to say about that?
MS HENDERSON: Your Honour, I understand the applicant has told my instructing solicitor that he has been refused legal aid, so I think the available avenue has already been exhausted.
HIS HONOUR: That does not weigh with me, you see, because otherwise we are forfeiting our responsibilities to legal aid authorities, so as far as I am concerned, that is irrelevant. We have had cases - Justice Gaudron and I sat in one in the case of Cameron which is reported in this year’s Australian Law Journal Reports, where he was refused legal aid and he had a perfectly good point. It was just that Justice Gaudron and I saw it, so he won his case. But he has been refused legal aid, he probably will not have legal aid when the case comes back, but he says he has been assaulted, he has a brain problem of some kind and he does not have his glasses and he has been in custody for a long while and he asks for an adjournment of the matter so he can get his case in order. I am a bit disinclined in those circumstances to press the matter to finality today.
MS HENDERSON: Your Honour, I raise the legal aid matter purely to say this – and I think your Honour has just remarked on it – that it does not seem likely there will be a lawyer on the next occasion.
HIS HONOUR: I would not think so. I think it is going to be as bad as it is today, but at least he may have had time to prepare a speech, as he puts it, and organise himself and put the matter before the Court. There were two points that he raised that I do need your help on. First of all, he appears to dispute the list of criminal convictions which is set out on pages 3, 4 and 5 of the Tribunal’s decision. Is there any independent record of that? I could not act on that if he disputed it.
MS HENDERSON: Your Honour, I think within what is called the T documents in the Tribunal, the bundle of documents sent under section 37 of the Administrative Appeals Tribunal Act that are deemed by the decision‑maker relevant to the decision, there probably would have been a criminal record.
HIS HONOUR: I am sure it is there but they are not in this Court. I do not think we get those.
MS HENDERSON: That is so, your Honour. The applicant has not produced the Tribunal documents which he had.
HIS HONOUR: He contests those convictions and they are relevant in two senses. First, they provide the foundation of the application to him of the sections for deportation because it is the basis of the calculation of how long he has been lawfully in Australia, for the calculation of the application of the Act. Second, they are forensically relevant because, if they are correct, they really explain and justify the decision of the Minister to deport him. If the set of convictions that are listed in this document were known to the ordinary Australian, they would say of the applicant, “Good riddance”. I think that is the truth of the matter. He has had such a long series of recorded convictions but he disputes them.
MS HENDERSON: My submission in relation to that, your Honour, is that this is a matter which the applicant could, and no doubt did, raise before the Administrative Appeals Tribunal. It was open to him in that forum to point out any of these convictions which had been, for example, overturned on appeal. There is no evidence before your Honour which would suggest that that is the case. As I understand his written submissions, even though they are difficult to follow, his position is that he considers these convictions are unsafe because he asserts he had neither legal representation nor interpreters on any of the occasions when the convictions were recorded. That is the basis on which the convictions are disputed, your Honour, and that, I think, will not alter if this matter is adjourned to another date.
HIS HONOUR: Yes. The second thing he says on the habeas corpus is that the justification for his detention only lasts for a matter of three days, I think he said, not five years. Is that correct or not?
MS HENDERSON: If your Honour will excuse me, I will just consult the Act on that. I think it may be that the applicant is reading a provision in relation to a different situation than his. He is presently detained by virtue of section 253 of the Migration Act.
HIS HONOUR: Just let me have a look at that.
MS HENDERSON: Subsection (1), as your Honour will see, indicates that:
Where an order for the deportation of a person is in force –
and, pausing there, that is the case with this gentleman –
an officer may, without warrant, detain a person whom the officer reasonably supposes to be that person.
Then a reference to a time period appears in subsection (4):
If a person detained under this section . . . claims, within 48 hours after the detention and while the detained person is in detention, that he or she is not the person in respect of whom the deportation order is in force, the person to whom the claim is made shall –
take various steps which are set out there.
HIS HONOUR: Was such a claim made as per section 253(4) within 48 hours of detention by the applicant or not?
MS HENDERSON: No, your Honour. I have not, in some years of being involved in this matter, ever heard of a claim by him under 253(4). Your Honour will see that the section continues with provisions permitting the release of the individual if they are not “brought before a prescribed authority”. In practice that becomes a local magistrate, I believe.
HIS HONOUR: I may be wrong, but I would not have thought that that statutory provision purporting to limit the entitlement to object to 48 hours would stand against an established demonstration that a person is not lawfully in custody.
MS HENDERSON: I think no, your Honour. My only attempt in taking your Honour to that was to try to locate a time period. I am not aware of what the 75‑hour period is which the applicant has referred to. There has never been any question of course in this matter as to whether this gentleman is the person named in the deportation order. That matter has not arisen. Section 254, just for completeness, permits the Commonwealth to ask through the secretary of the Department that a person who was already in custody for some other reason be held when their sentence is completed in immigration detention. Those are the two provisions which govern the applicant’s situation. Neither of them provides, as the applicant has suggested, that he must be released after 75 hours.
Your Honour, I have taken pains in the written submissions lodged on behalf of the first and second respondents to make it clear that the Administrative Appeals Tribunal has very creditably tried to act as quickly as possible in relation to the applicant’s applications for review of the deportation order. He originally was allocated a hearing date which would have been just four months after the expiry of the minimum term of his service had he appeared at that particular Tribunal hearing. When he had his matter restored to the list, the Tribunal listed it for hearing four weeks after the hearing at which it restored the matter.
So that the applicant’s situation might have been resolved some many years ago. It is not the Minister who maintains the applicant of the Minister’s own will in detention; it is the applicant’s constant stream of court litigation, which has meant that he remains in detention until the various cases are resolved. Had he chosen to be more speedy in his AAT applications, his situation would have been finalised many years ago.
HIS HONOUR: There is a reference to the Migration Legislation Amendment (Judicial Review) Act of 2001. This is an Act with privative provisions, the constitutional validity of which is going to be considered by the Court I think at a hearing that is listed in September. Is that essential to your case or not? If it were essential, I would feel obliged to protect the applicant in respect of that matter that is before the Court in September.
MS HENDERSON: Your Honour, the effect of those clauses, it will be contended no doubt in September, is to extend the jurisdiction of the Administrative Appeals Tribunal which has given the final and most significant decision in respect of this particular applicant. In my submission, even if – and I think this would not be the case – those provisions were found unconstitutional and the applicant was then at liberty to apply generally under accepted judicial review grounds, he could not on the material before your Honour have an arguable case on any of those grounds.
HIS HONOUR: How does the amending Act, which I have not yet studied, affect the jurisdiction of the AAT?
MS HENDERSON: It operates in a manner which I think has been very recently explained by the Full Federal Court, that it actually extends the jurisdiction of the body below. That is, as I understand it, the notion which is used to describe the way in which the privative clause applies.
HIS HONOUR: It extends the jurisdiction of the AAT at the cost of the courts, is that the scheme?
MS HENDERSON: I think in effect, your Honour, that must be the logical result.
HIS HONOUR: But would not the present applicant before me be faced with the contention that he has already exhausted his rights before the AAT? Does the Migration Legislation Amendment (Judicial Review) Act 2001 breathe new life into entitlements in the AAT to him?
MS HENDERSON: No, it does not, your Honour. It simply restricts the grounds upon which an application to this Court may be made.
HIS HONOUR: I see.
MS HENDERSON: One is restricted then to the matters raised in the Hickman principles.
HIS HONOUR: But your contention is that even on traditional grounds, the applicant would not get to first base in his application for relief in this Court, given that he must establish jurisdictional error.
MS HENDERSON: Your Honour, the draft order nisi and affidavit which were apparently drawn up by the applicant in some period prior to the recent events, which he says has stopped him giving full time to his written submissions, do not, on the face of them, in our submission, demonstrate anything which would qualify as either a judicial review ground or fall within the Hickman principles. I am straying away of course from your Honour’s basic question to me, which was the Minister’s position in relation to an adjournment of this matter. Our submission would be that this case will not improve over an adjournment.
HIS HONOUR: No.
MS HENDERSON: It will be exactly the same case which will be presented at a later date if an adjournment is granted to the applicant.
HIS HONOUR: Yes, very well.
MS HENDERSON: Perhaps I can cast some light on one particular matter which may appear very opaque the way it is actually raised by the applicant both today orally and in his submissions. I must say it did not fall into place for me until I recalled a document which I have seen in previous proceedings in relation to the applicant. The parents of his former de facto wrote a letter to their local member. Their local member referred it to the Minister. This is a procedure your Honour will no doubt be very familiar with. The local member of the parents happened to be the current Treasurer, and it is for that reason ‑ ‑ ‑
HIS HONOUR: Yes, I wondered how he became involved.
MS HENDERSON: Indeed, yes. I think it is for that reason that one finds the peculiar assertion in the written submissions that the Treasurer has somehow sought to involve himself in this matter.
HIS HONOUR: It is not unusual for local members to write. Indeed, my experience is that local members get letters off their desk as quickly as they can and into the hands of the relevant Minister so that they can be blamed for any delay and not the local member.
MS HENDERSON: With respect, your Honour is quite right, but in this case it just happened to be a particular individual who holds an office of high profile.
HIS HONOUR: I follow, yes. He is not all that high profile; he is just a Minister of the Crown.
MS HENDERSON: The Minister’s position remains that we say the case will not improve with further maturity.
HIS HONOUR: Very well, thank you. What do you say in reply to that?
APPLICANT S187/2002: Your Honour, I think in the case, I think this is a case which…..in any ordinary cases because this case, if an adjournment was made to produce that evidence because I could not and I am so sorry and regret that to show you some numbers of letters from the Parliament who they did not actually issue the deportation order, actually to deport me for my crime, like the deportation order. They use the deportation order capriciously to stop me to continuing with my Family Court proceeding, which I have lost $4,000 on that proceedings.
HIS HONOUR: I understand the most important thing to you is your family and the Family Court proceedings, but there is nothing I can do about that. That is just not before me. The only relevance of it is that you have a daughter who is an Australian citizen that you love and you do not want to be parted from. I understand that but that seems to have been given consideration by the Minister and his officials, because they gave you a second chance in 1992.
APPLICANT S187/2002: But the daughter was not born in 1992. There was no daughter born in 1992, your Honour. The chance what they give to me, already I have been charged. Already I have been charged. The Department of Immigration knew I had been charged and they knew themselves they could not deport me from the jurisdiction of Australia. Instead, they issue me a warning. In 1995 I receive sentence from those charges.
HIS HONOUR: That was after your daughter was born.
APPLICANT S187/2002: No, the charges was before.
HIS HONOUR: Well, the conviction was in August 1995.
APPLICANT S187/2002: That is correct.
HIS HONOUR: The sequence of events was: 1992 the warning; 1993 your daughter’s birth; 1995 your reconviction on very serious charges of supplying a prohibited drug.
APPLICANT S187/2002: There was, your Honour. I been work with the police for ‑ ‑ ‑
HIS HONOUR: I have seen that. I have seen your allegations about that but it does not matter as far as the law is concerned.
APPLICANT S187/2002: This mean both of us will be guilty, me and the police. The thing is I helped the police. I was narcotic, your Honour. I was a victim of the drug myself, but I address that issue, it is finished. I work hard. Even a cigarette in my mouth now, just four months ago I succeed to give up smoking from the reason to save few dollars for my daughter presents and I give her, and I save $60 a week I can save on smoking, so I am very proud of that for myself. That is for my child. I have no family in Romania. I am an orphan. Has been killed.
HIS HONOUR: You have no family in Romania?
APPLICANT S187/2002: No. I do not know Romania from 1979. I remain silent and never went out the country, your Honour, and my family has been killed in 1999 and be abolished. I have been involved in drugs again. I was ‑ time when I supposed to commit suicide, but I work so hard and convert myself to Christian and going to churches and rehabilitation and do my artwork which, thanks God, it helps me a lot. The Attorney‑General Department, they knew that I did make significant contribution to this country and I continue to do. Drugs, no. Alcohol, no. I am a pure man. Class 3 chef, yes, I am. Welding, engineering, I done so much – something from the community and not for myself. My artwork, everybody loves it in Australian society, and it is also for my daughter.
If I would not be fear for my life to turn back to Romania, your Honour, I would not spend five years in Australian prison in Long Bay and abuse and torture and remain myself silent. I would not, your Honour. Nightmare. To me is just enough to justify. The military tribunal in Romania is still in force and I will be in big trouble and I prefer to remain in Australian prison.
HIS HONOUR: Yes, but you are arguing before me as if I have the power to hear an appeal from these decisions. I do not. I am dealing here with an application for a constitutional writ. It is a very peculiar remedy. It is special to the Constitution of Australia. It allows this Court to intervene radically and quickly if a breach has been shown on the part of an officer of the Commonwealth of this law.
APPLICANT S187/2002: There has been breach of International Convention of Human Rights.
HIS HONOUR: That is not part of the domestic law of Australia, so that cannot provide a foundation.
APPLICANT S187/2002: No, but under the Commonwealth. What I understood, section – yes, of course, common law, what I understood myself being in this country so long, common law, of course, we do not need the human rights in this country or the instrument in the country because the common law takes part which incorporate the human rights.
HIS HONOUR: Yes, but the common law will not stand up against a statute. If the statute says the Minister can deport you because you have a relevant conviction within your first 10 years in Australia, then that gives the basis for removing you. You have fought it like a very brave soldier in the Administrative Appeals Tribunal, you fought it before the delegate, you fought it before the Tribunal, you fought it before the Federal Court ‑ ‑ ‑
APPLICANT S187/2002: I am sorry, before the delegate? No.
HIS HONOUR: I see, no, before the Minister.
APPLICANT S187/2002: No, not before the Minister either. That is what I said. The Minister failed to give me – apply to natural justice before to entrench me into ‑ ‑ ‑
HIS HONOUR: I thought the delegate was the deputy secretary of the Department, the second respondent in your application.
APPLICANT S187/2002: That is right.
HIS HONOUR: You did it have it before the delegate then.
APPLICANT S187/2002: No, he did not give me opportunity to respond either.
HIS HONOUR: No, but he decided the matter.
APPLICANT S187/2002: He just decided without serving me notice or to inform me, “Mr B, I am going to propose to deport you. Would you put forward your submissions” or whoever made. He just was bound by the Minister and that simply is they did not look into the case, your Honour, did not look into the case. The statement of reason was - four months later he turn up with statement of reason which already the deportation order was issued, made the decision. The statement of reason, your Honour, did not took anything into account. I was a refugee and apply to a special category visa. Now, lawfully permanent in Australia under the statute, I am more than 11 years, your Honour. It is not less than 10 years, 11 years. What the deputy secretary did, if I point it out on paragraph 7 up on to the grounds under application:
The deputy secretary of the Minister regarded himself as Bound by the Minister’s direction without regard to the merits of the particular case. The decision was an error of law the direction was invalid thus inconsistent with statutory discretion.
What I understood, your Honour, is not going to argue all the case because I thought I am entitled to say something if this application will be succeed. That is what I thought. What I understand, under the statutory – I am not an academic man, but myself, what I understood – and I will refer to a case; I will refer this to a case:
that the Minister must decide each of those cases under sections 200 and 201 on its merits. His discretionary cannot be so truncated by a policy as to preclude consideration –
I am sorry, would you continue for me, please, because I am ‑ ‑ ‑
THE INTERPRETER:
of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister’s policy formed for the purpose of sections 200 and 201 of the Migration Act must leave him free to consider the unique circumstances of each case and no part of
I do not understand that –
policy can determine in advance in decision which the Minister will make in the circumstances of given case.
That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decision, a policy which is informative of standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute and lawful policy which leaves the range of discretion intact while guiding the exercise of power.
HIS HONOUR: Yes.
APPLICANT S187/2002: That was referred by Justice Brennan. I think his Honour Justice Brennan is very expert on policy in relation with the Minister’s policy. Also, Justice Brennan, I did write, as I said, Chief Justice, he referring to his decision, your Honour, that of course you will be available after the Tribunal. You will be available in my application into the Federal Court again. He did refer that. If you like me to tender that decision.
HIS HONOUR: No, I do not think that is necessary.
APPLICANT S187/2002: Because it was arrange of I subpoena, I find the instrument of power of the Minister which he did act and after that has been cancelled maybe a month later, which to me there was no longer decisions, no one took the decisions. But what I find on some documents what I remember, because the last five years keep going with these cases, I found that an official of the Department of Immigration, Madam Speed, referred to the central office to cancel my application to the Tribunal. It seems to me they did cancel my application to the Tribunal but I keep put pressure into the Federal Court and the Federal Court refer for me to go back to the Tribunal and I said I could not go back to the Tribunal with these documents because there will be a miscarriage of justice. To me it was an unfairness to go with unlawful inference constructed by the Minister or by the delegate to me and not to let me proceed with the case which will construct mechanism of fairness, your Honour.
Also, I did not have legal representation. It is not the point that I try to do the best. I saw 120 cases of the Legal Aid Commissioner referred. They have been represented in J’s Case. J’s Case is very much familiar with my case when the Minister made numbers of comments to the radio, and the Waite Case, both cases 1997 ‑ I presume this Court will be familiar – when the Minister was biased. The same thing what they did to them, the same thing they did to me in my case. But today I was not ready to prepare, to bring those cases which I did apply from this Court I think I did get my cases from this Court. Someone did get it for me. Those cases are very familiar with my case, your Honour.
They were very successful cases. One was for manslaughter. But there was bias because the Minister start make findings into the radio and interfere with proceedings into Tribunal. The thing is I would like this deportation order to be put aside, interlocutory deportation order, so I can secure myself legal representation. I will…..community because there is no cancel any visa. You see, your Honour, there is no cancel any visa. I have got a submission of the respondent which say Mr B is still proper Australian permanent resident, which is discriminating on others. He is not cancelling any visa for me to be in detention and the deportation order is not executed, which means – “executed”, if I look in the dictionary, it looks in force, to apply from section 253.
The professionals, like I said, we cannot beat the professionals. A barrister from chambers, pro bono, advised Justice Madgwick that the detention is an unlawful because Section 254 and 253 never took part in 1998 and there is not such a thing and were on file. I have those documents and also I took from the computer – I apply to the freedom of information which I have those documents is there in correctional centre in reception which shows that the officials never come in gaol and to serve me with those decisions. It shows clear. Justice Madgwick, if he had that evidence, Justice Madgwick he will make the decision in my favour.
HIS HONOUR: Yes, all right.
APPLICANT S187/2002: But even the policy of 1998, if Justice Madgwick saw the policy of 1998, he will not keep me in prison and I will fight my case from outside and I will get myself a lawyer. I will sell my block of land up there, bit of gold in the bank and get myself a lawyer and pay the debts. I have debts to the bank, $17,000 to pay also.
HIS HONOUR: Yes. Anyway, I think I understand what you have to say. Thank you very much.
The history of the proceedings
The applicant is a national of Romania. I will not refer to him by name out of deference to the policy of the Parliament expressed in s 91X of the Migration Act 1958 (Cth). His case is No S187 of 2002. By ethnicity the applicant is a Romany gypsy. He was born in Romania in 1958. He is thus 43 years of age. He came to Australia on 8 March 1980, then aged 21. He has lived in Australia ever since, never departing. For nearly five years the applicant has been held in custody, for a good part of that time in immigration detention. He was brought to court today from prison to prosecute his application. He has appeared before me unrepresented, but with some linguistic assistance from an interpreter in the Romanian language. He has advanced his arguments as best he could.
On 20 August 1997 a delegate (“the delegate”), the second respondent, of the Minister for Immigration and Multicultural Affairs (“the Minister”), the first respondent, ordered the deportation of the applicant from Australia. I now have before me an application which is brought in the original jurisdiction of this Court. It seeks an order nisi returnable before a Full Court for orders quashing the decision of the delegate and of the Administrative Appeals Tribunal and various orders of single judges and of Full Courts of the Federal Court of Australia.
The record shows that the proceedings have been before single judges of the Federal Court on many occasions: O’Connor J on 20 October 1998, Beaumont J on 10 July 2001, Madgwick J on 14 December 2001. It has also been before the Full Court of that court on at least two occasions, namely, on 16 June 1999 (before a court constituted by Whitlam, Moore and Katz JJ) and on 11 May 2001 (before a court constituted by Ryan, Conti and Allsopp JJ).
In addition to relief against the orders of those courts, the applicant seeks an order nisi that he be released from custody, principally, as I understand his application, in order that he might prosecute continuing proceedings in the Family Court of Australia which concern his rights of contact with his daughter. She was born on 12 September 1992 and is an Australian citizen. The applicant’s process also seeks an order nisi for the issue of a writ of habeas corpus to secure his liberty, in effect consequential upon the relief previously described.
After his arrival in Australia the applicant never became a citizen of this country. According to the reasons of the Administrative Appeals Tribunal (“AAT”), which were placed before me without objection, within three years of his arrival the applicant began an involvement in what the Tribunal recounted as a long series of criminal conduct. According to the Tribunal’s reasons, the offences began in August 1983 when the applicant was convicted of stealing and sentenced to six months imprisonment to be served by way of periodic detention. According to the Tribunal’s reasons, there then followed many convictions for offences such as assault; break, enter, steal; and use, administration and supply of prohibited drugs, including heroin, and the like.
Although the applicant contested the accuracy of at least some of the recorded criminal convictions contained in the reasons of the AAT, he has not produced any evidence to cast doubt on the accuracy of what is recounted in the Tribunal’s reasons. Nor does the Tribunal refer to any challenge before it concerning the record which it details. For present purposes, I believe that it is safe to accept the criminal record that the AAT decision discloses. It affords a basis for the engagement of the provisions of the Migration Act 1958 (Cth) (“the Act”) that bring the applicant to his present predicament: see the Act, s 200.
The order for deportation
According to the reasons of the AAT, in May 1992, in consequence of a number of convictions and sentences imposed on him to that time, the applicant was warned by an officer of the Department of Immigration and Ethnic Affairs, about the possible effect of his criminal convictions and the danger that they posed that he could be deported from Australia under the Act. As the AAT decision records, he was told that further convictions could lead to the question of his deportation being considered by the Minister or by a delegate of the Minister. Notwithstanding this warning, the AAT’s reasons go on to indicate that the applicant was charged with, and in August 1995 convicted of, two counts of assault occasioning actual bodily harm and further counts of supplying prohibited drugs, including commercial quantities of heroin, which resulted in concurrent sentences of four years imprisonment.
On 20 August 1997 the consequence of which the applicant had been warned occurred. A delegate of the Minister ordered the deportation of the applicant from Australia. Under the Act, s 200, the Minister may order the deportation of a non‑citizen to whom Division 9 of the Act applies. That Division of the Act applies to a non‑citizen who commits an offence and is sentenced to imprisonment for a period in excess of one year within 10 years of arrival in Australia: see the Act, ss 201 and 202. The applicant’s criminal record enlivened these provisions. It is this decision which the AAT (constituted by Member R.P. Handley) confirmed on 4 April 2002 by rejecting the applicant’s request for review of the delegate’s decision.
The application to the High Court
The applicant has sought to resist his deportation, and indeed his continued immigration detention, on a number of grounds. These are set out in his documents filed in this Court. These have been elaborated before me today in his oral submissions. I will not repeat them all; but I have considered all of them.
They include, first, that he has reformed from his previous drug and criminal conduct, that he is now free of dependence on drugs and on alcohol; secondly, that he is deeply attached to his daughter aged nine and afraid of her fate if she is deprived of a father by reason of his deportation from Australia; thirdly, that his involvement in heroin was, in part, a problem of his own addiction and of his own use and, in part, was caused by the dependence of his daughter’s mother, whose life he claims to have saved on one occasion; fourthly, that he has assisted police and prison authorities with serious inquiries concerning criminal offences involving other persons, including since the time that he has been in custody most recently; fifthly, that he has no connection with, or relevant family in, Romania and fears persecution if returned there because he is a gypsy; and, sixthly, that he has had a generally good work history in prison and during his period in immigration detention. In short, he says that he is a reformed person who can be trusted to stay in Australia, the only country he has known for 22 years.
The applicant’s attacks on the decision of the AAT and his criticisms of the Federal Court decisions to which I have referred are expressed in various ways. They include contentions that those decisions and the orders giving them effect breach the rules of natural justice; evidence the presence of bad faith, malice and ill intention; breach the requirement that the decisions should not depart from ordinary standards of reasonableness; amount to a deprivation of his rights because of his inability, whilst in detention, to have access to legal or immigration advice by which to prosecute his cases; and amount to decisions that no reasonable decision‑maker could make or which are otherwise capricious.
The limited basis for constitutional relief
During the course of the proceedings before me, that have now lasted three hours, I have tried to explain to the applicant that, in proceedings such as this, this Court is not a court of appeal. Nor can it review the decisions of the delegate, the Minister, the AAT or the Federal Court on the factual merits of those decisions. Nor is this Court now dealing with an application that is relevant to any problems which the applicant has had in the Family Court that he has mentioned in the papers and elaborated before me today. I have explained the limits on the availability of constitutional and related relief from this Court. Nothing in the documents presented to me today, nor anything in the applicant’s oral submissions, comes close to indicating a reasonably arguable basis for the grant of a constitutional writ.
To remove from Australia such a long‑term resident, although he is not a citizen, who has a young daughter resident in this country who is an Australian citizen, is a very serious step. However, by the law of this country that decision belongs to the Minister and, where he delegates the decision, to a delegate. It can be reviewed, as it has been by the Tribunal. It could be challenged, as it has been, by judicial review in the Federal Court. However, this Court has held that it can only intervene in such matters on the basis of an established jurisdictional error or want of power. I see no factual or legal foundation to conclude that such an error has occurred in the applicant’s case.
A writ of habeas corpus would not issue out of this Court in the applicant’s case. The legality of the applicant’s immigration detention is dependent on the lawfulness of the Minister’s deportation order: see the Act, ss 253 and 254. The applicant referred to the fact that the Minister’s order only applied for a short time. This appears to have been a reference to the provisions of s 253(4) of the Act. However, when examined, that subsection, where it refers to 48 hours, is not providing a limitation on the effectiveness of the Minister’s order. It is referring to a period during which, after a person has been detained, he or she may apply to challenge that order. I am satisfied that the writ of habeas corpus is not available in the applicant’s case.
The privative provisions of new legislation
In written submissions, and again orally today, the Minister raised certain issues arising out of the privative provisions that have been enacted by the Parliament in the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). A challenge to the constitutional validity of some of the provisions in that legislation has been listed before this Court to be heard in September 2002. The present application was argued without substantive reference to them. In short, counsel for the Minister was content to approach the matter on the footing that it was unnecessary for present purposes to reach the privative provisions in that legislation. I have proceeded in that way. Accordingly, it is unnecessary for me to consider the validity of that legislation. Had it been necessary to do so, there would have been no alternative but to adjourn these proceedings to await the hearing, and possibly the outcome, of the consideration by this Court of the constitutional validity of the legislation.
The rejection of an adjournment
At various stages during the hearing the applicant asked that I should adjourn the proceedings. He did this on a number of footings. They included that he had recently been the subject of an assault in prison as a result of which it now appears that he himself has been charged with an offence. He said that by reason of this assault he had suffered an injury to the eye and that this had exacerbated a mental condition that had made it difficult for him to prepare a “speech” to support his application. He also expressed a hope that, with an adjournment, he would be able to secure legal representation in this Court.
However, the matter has now proceeded for a very long time before many officers of the Commonwealth, the Federal Court and in this Court. The applicant was able to read documents and present argument orally that adequately explained his assertions. Because the applicant has been refused legal aid and because no new basis was established that would suggest that legal aid would at this stage be provided, I do not see any prospect of the applicant’s representation before this Court would improve with an adjournment. His detention in custody beyond his criminal sentences has gone on long enough.
Conclusion and orders
It follows that I was not prepared to adjourn the proceedings. The applicant has invoked the jurisdiction of this Court. The matter has been argued. In my opinion, it should now be decided. So proceeding, there is no basis in the arguments of the applicant to attract the constitutional jurisdiction of the High Court. The application for an order nisi is therefore rejected. It is not reasonably arguable.
Do you ask for costs on behalf of the Minister?
MS HENDERSON: Yes, your Honour, and I ask the Court to certify for counsel.
HIS HONOUR: Do you have any reason why I should not order costs against you?
APPLICANT S187/2002: Yes, sir.
HIS HONOUR: What is that?
APPLICANT S187/2002: Well, first of all, the deputy president told me to come in your jurisdiction. I did not know nothing about it. He is one of your members - to come to the High Court of Australia. Certainly, I am in prison and I do not have no income. I have been locked up 23 ‑ ‑ ‑
HIS HONOUR: Well, that is the question of whether the Minister can get the money out of you.
APPLICANT S187/2002: From where?
HIS HONOUR: If you have no income, he cannot.
APPLICANT S187/2002: Well, the purpose is I have to sue him from being beaten up when I in prison. I do not sue nobody to take the taxpayers money.
HIS HONOUR: Yes.
APPLICANT S187/2002: The thing is he made his decision from the purpose for me to remain in custody for the rest of my life. If you want that, it is fine. Thank you very much. And he wanted me to pay also $253 a day, the prison. Now, that decision of the – what I inform you being published in society and the criminals might even find out and maybe I will be stabbed. Who is going to be responsible, your Honour? Thank you very much. Who is going to be responsible? Who is going – I am going – 60 Minutes has to come and to deal with this matter now because you are not going to give me opportunity to be on ‑ ‑ ‑
HIS HONOUR: Yes, I think I understand what you say on the question of costs.
APPLICANT S187/2002: That is not fair, your Honour, and this is not fair ‑ ‑ ‑
HIS HONOUR: I am not going to reopen the matter.
APPLICANT S187/2002: You invite me – you just set me up here again ‑ ‑ ‑
HIS HONOUR: I do not invite. You brought an application to the Court.
APPLICANT S187/2002: Yes, I know that. I thank you very much. I am going. That is it. You ‑ ‑ ‑
HIS HONOUR: The order of the Court is that the application is refused. The applicant must pay the Minister’s costs. I certify for the attendance of counsel.
APPLICANT S187/2002: I do not pay him nothing. I just bring – well, I am going to sue him.
HIS HONOUR: The Court will now adjourn.
AT 3.50 PM THE MATTER WAS CONCLUDED
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Standing
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