Applicant S310-2002, Ex parte re MIMIA & Ors

[2002] HCATrans 372

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S310 of 2002

In the matter of -

An application for Writs of Mandamus, Certiorari and Prohibition and an injunction against SENATOR THE HONOURABLE PHILIP RUDDOCK MP, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

MR GRANT BROWNE, COMPLIANCE OFFICER, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

DIONNE DIONISIO, A/G ASSISTANT MANAGER COMPLIANCE, SYDNEY CBD REGIONAL OFFICE, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Third Respondent

Ex parte –

APPLICANT S310/2002

Applicant/Prosecutor

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 23 SEPTEMBER 2002, AT 11.16 AM

Copyright in the High Court of Australia

__________________

MR P.M. GWOZDECKY:   May it please your Honour, I appear for the applicant.  (instructed by the applicant)

MR G.T. JOHNSON:   May it please your Honour, I appear for the respondents.  (instructed by the Australian Government Solicitor)

MR GWOZDECKY:   Your Honour, I received the papers on this on Friday evening and my initial application to you would be for an adjournment on the basis of the late reception of the papers in the matter.  I have prepared a chronology and an amended draft order nisi.

HER HONOUR:   The problem in this is that there does not seem to be an arguable case at all, does there?  I mean, I do not want to be difficult about it.  I do not know if an adjournment will serve any purpose.  If you can tell me it will serve some purpose, then I will favourably consider it, subject to what Mr Johnson says.  If you tell me that you think it might serve a useful purpose, then we will see what Mr Johnson says.

MR GWOZDECKY:   It may allow me, your Honour, just to investigate the issues that I have found that I think may be an arguable case.

HER HONOUR:   Very well.  Mr Johnson, what do you say?

MR JOHNSON:   Your Honour, if my friend was able to identify one issue that he has found that might be an arguable case, then we would not ‑ ‑ ‑

HER HONOUR:   Is not the real problem in this case that somebody should have been making an application for a different sort of visa a long time ago?  It was hinted at.

MR JOHNSON:   Exactly, your Honour, but the situation has now been reached where the applicant does not have any substantive visa application on foot.  There was a protection visa application which was refused; went to the RRT; refused; the Minister declined to exercise power under section 417.  There really is not anywhere to go.  I would have thought that unless my friend can indicate that there is something which ‑ even subject to some degree of further investigation, something that might perhaps amount to an arguable case for the constitutional writ for an order nisi, then there ought not be an adjournment.

My friend has provided to my instructing solicitor only just a few moments ago a draft amended application.  I suppose I should wait until that is presented to your Honour but if I could foreshadow one very real difficulty:  whereas the thrust of this appears to be to try to treat a particular letter as though it was an application for a substantive visa, my friend’s application fails to identify the kind of substantive visa and, of course, there are restrictions in section 48 of the Act and following about repeat applications.

Your Honour, it seems that there has, in fact, been no further visa application and, with respect, there is nothing in it, your Honour.  It would simply be to waste your Honour’s time, in my respectful submission, for the matter to be adjourned.

HER HONOUR:   You had better answer that, Mr Gwozdecky.

MR GWOZDECKY:   Yes.  Perhaps if I can hand up to your Honour a chronology that I prepared in the matter and also an amended draft order nisi.

HER HONOUR:   Thank you.

MR GWOZDECKY:   I have also filed in the Court an affidavit, which I think you will have, sworn today, 23 September.  Do you have that document?

HER HONOUR:   Where do I find this 20 February application?

MR GWOZDECKY:   You find it, your Honour, at page 14 of the affidavit of Dale Jennifer Watson, the respondent’s instructing solicitor, sworn 19 September 2002.

HER HONOUR:   Did you know – I do not want to be difficult about this – I do not think you are allowed to identify your client, are you?  This is just bizarre.  Is he allowed to do that?  Do we put them on the documents, Registrar?  What do we do?

MR GWOZDECKY:   That is the respondent’s affidavit, actually.

HER HONOUR:   Well, maybe he is in trouble too.  Mr Johnson, you will have to help me with this.  I mean, how can we accept documents from you – this is not your problem, Mr Gwozdecky.  What are we to do in this?  Somebody has to help us.  The problem is not in the Full Court.  The problem is here at the counter and in the first instance applications.

MR JOHNSON:   Yes.  Your Honour, I suppose one particular difficulty with this case is that although there is a protection application there in the background, it does not seem to be seriously agitated by the applicant or prosecutor in this Court that there is any error in that.  So, I must say for my own part when I was doing submissions to your Honour on Friday, I did not see it as being a refugee application.  But, your Honour, for more abundant caution, because 91X is framed in terms of publication, perhaps if an order could simply be made that these ‑ ‑ ‑

HER HONOUR:   No, it is not even as good as that.  At some stage ‑ here today, in my left hand is an affidavit.  Somebody, at some stage, is going to have to say, “I move on the affidavit of”.

MR JOHNSON:   Yes.

HER HONOUR:   Well, how do I deal with that?  You cannot conduct proceedings, can you?

MR JOHNSON:   Well, no, your Honour, I do not concede that because the applicant can be assigned a name for the purposes of the record of the Court’s proceedings.

HER HONOUR:   For the purpose of taking oaths?  Just think about this for one minute, please.  Let us assume there were something untruthful in the affidavit.  “I move on the affidavit of Applicant S23” or whatever.  It is not in the record.  It is not there.

MR JOHNSON:   If the applicant, who is coming to the Court complaining inevitably about a particular decision – not in this case, perhaps, but in most cases at least – prepares an affidavit in which the person says that he or she is the applicant and swears the affidavit and assigns a name to himself –…..“I am the applicant in these proceedings”, and the proceedings are styled, say, S123/2002, your Honour, the person is identified.  The person can give that evidence.  The practical problem, your Honour, is ‑ ‑ ‑

HER HONOUR:   The practical problem, to start with, is that somehow or other the names are being used.  I do not know whether they are allowed to be.  Would you like to all take the papers away and redo them?

MR JOHNSON:   Your Honour, that would be one solution, or the Court could make an order that the names not be published.

HER HONOUR:   No, no.  It is the High Court that cannot publish the names.  You see, I am sitting here and not being terribly alert and ‑ ‑ ‑

MR JOHNSON:   That is plainly not so, your Honour.

HER HONOUR:   No, no, here I am:  I did not even notice how the matter was styled in the list.  It has a number in the list but on the file, on every document, there are names.

MR JOHNSON:   Well, as I said, your Honour, in this particular case ‑ ‑ ‑

HER HONOUR:   It is the affidavit of Dale Jennifer Watson that I come to where all the names are there.

MR JOHNSON:   But, your Honour, in this particular case that rather confused draft order nisi that was presented, which really started off this process, does not read at all and, indeed, is not any attempt to call into question any protection decision.  Then, the affidavit of Ms Watson has been prepared to present the chronology and then I, in doing submissions for your Honour, albeit rather hurriedly on Friday, in the time that we had, again refers to the applicant by name.  But it is not really, your Honour, a ‑ ‑ ‑

HER HONOUR:   Well, all I can do is go on the terms of the Act.

MR JOHNSON:   I suggest to your Honour that section 91X would not be breached if an order was made that the name of the applicant, where shown, not be published.

HER HONOUR:   This does not authorise me to make a non‑publication order.  This forbids me to publish it and I suppose it forbids the Registry and I suppose the documents just should not be like this, but there you go.  Anyway, Mr Gwozdecky now says there really was an application there which I find at page 20 which was not a protection visa application at all and was not considered.

MR GWOZDECKY:   Yes.  Your Honour, my friend is right.  There was a protection visa but it was basically, in effect, withdrawn.  There was an attempt by the applicant who is in detention – this is a prospective marriage visa and ‑ ‑ ‑

HER HONOUR:   But that expired, did it not?

MR GWOZDECKY:   Due to domestic violence, well, it ‑ ‑ ‑

HER HONOUR:   I am familiar with the facts but you say there is an arguable case, do you, that there was an application for some other sort of visa?

MR GWOZDECKY:   There seemed to be provisions in relation to making a permanent visa in situations where someone is either on a prospective marriage or a de facto relationship, where they are the victim of domestic violence.  This was not a case where the applicant withdrew from the marriage.  The nominator, when an apprehended violence order was put on him and he was removed from the house, called the Department and withdrew his support.

Technically, there was a two‑day delay between the expiry of the prospective marriage visa on 18 February and the preparation of this document by the Botany Migrant Resource Centre on behalf of the applicant.  Now, the documents, as I say, starting on page – well, it is exhibit DJW4, starting on page 14 and going to page 37 of the affidavit of Ms Watson.  If your Honour looks at that document, it would seem to be a comprehensive – I mean, it is titled “Application for a permanent residence as a victim of Domestic Violence” on page 14.  It has statutory declarations in the appropriate forms from competent persons.

HER HONOUR:   All right.  He does seem to have an arguable case – well, the possibility of an arguable case.

MR JOHNSON:   Well, your Honour, he has not shown how that meets the criteria for a valid visa application.

HER HONOUR:   But he does show me that I am entitled to identify his client, anyway. 

MR JOHNSON:   That is so, your Honour, but in relation to this particular document ‑ ‑ ‑

HER HONOUR:   It says “application”.

MR JOHNSON:   ‑ ‑ ‑ the document is actually asking for the applicant to be treated in the context of the visa previously granted as though she was married to the former partner.

HER HONOUR:   But there is an application, is there not?  You may say it is not valid but that is an answer.  That is your answer to what is the amended draft order nisi now.  The draft order nisi is ignoring the new – seems to be ignoring the protection visa.

MR JOHNSON:   The new one is quite different from the old.

HER HONOUR:   And I have just turned up something here.  I think it might have been in the applicant’s affidavit, saying that the protection visa application was withdrawn anyway.  Did I turn that up?

MR JOHNSON:   That is not what the Tribunal said.

HER HONOUR:   No, but I thought I had turned up a notice.

MR JOHNSON:   My friend did say from the Bar table that it had been withdrawn but there was, as I understand, no document withdrawing it.  The Tribunal in fact gave her the option ‑ ‑ ‑

HER HONOUR:   What did I just have in my hand?  This – 3 July:

she has no confidence on the advice she received . . . has serious concerns –

does not wish “to proceed with today’s hearing”.

MR JOHNSON:   When one goes to the Refugee Review Tribunal decision which is annexed to Ms Watson’s affidavit, page 94, point 4, if I could just take your Honour to that.

HER HONOUR:   Well now, we will confine ourselves to the adjournment application because – yes, I have that.  That is “At the Tribunal hearing”.

MR JOHNSON:   Yes.  Does your Honour see that?

HER HONOUR:   Yes.

MR JOHNSON:   And she said that “she wanted the Tribunal to go on and consider the application”, et cetera, which the Tribunal then did.  Other problems are, your Honour ‑ just going back to the suggestion that that document at page 14 is an application for a visa – there is no indication of a fee being paid which is one of those requirements for a valid visa application in section 46.  So, it is just not a matter of form but that as well.  Then, insofar as the document refers to some kind of visa, it rather ignores that in relation ‑ ‑ ‑

HER HONOUR:   It is a permanent visa.

MR JOHNSON:   ‑ ‑ ‑ to subclause 100 spouse, the applicant is only entitled to the visa if the applicant meets the requirements of the criteria which, indeed, come back to being married.  That is the difficulty, your Honour.

HER HONOUR:   But the questions that are raised are these, are they not:  whether there was a duty on the part of anybody to consider that application and, if so, was it considered and, if so, what was the outcome?

MR JOHNSON:   The applicant is, as I understand it, asking for an adjournment to put before the Court evidence that this is an application.

HER HONOUR:   Well, I do not know that it is evidence; he wants to put a case.

MR JOHNSON:   The letter appears to be, your Honour, deficient on its face.  There is no indication of any fee and than at page 39 of Ms Watson’s affidavit, there is a note there from an officer who says that she:

contacted Mr Alexandrou to inquire if he intended to lodge an application on behalf of his client.  I advised Mr Alexandrou that his client’s substantive visa had ceased and she was unlawfully in Australia.

The agent advised he was preparing an application that he would be submitting for consideration of the claims he had made in his correspondence.

So, even the agent was not perceiving that to be an application for a new visa.

That is the difficulty, your Honour, that it does not seem to comply with the requirements of the Act.  Section 47 requires the Minister to consider a valid application but not to consider one that is invalid.  The matter my friend really does need to address, in my respectful submission, that he has not addressed is how that meets those requirements of the Act for a valid application, let alone a valid application for a new kind of visa.  It is really a letter, your Honour, which asks for her to be treated as though she was a married couple, in other words, for the requirement for this type of visa for the fact she be married to be overlooked.

HER HONOUR:   It may be that, in substance, if it was an application for the removal of the condition.

MR JOHNSON:   The visa had already expired, your Honour, so that was a problem in that respect.

MR GWOZDECKY:   Your Honour ‑ ‑ ‑

HER HONOUR:   Again, you need only concern yourself – do you tell me that you can usefully use an adjournment?

MR GWOZDECKY:   Yes, your Honour.  First of all, I would be objecting to ‑ ‑ ‑

HER HONOUR:   Parts of the affidavit.

MR GWOZDECKY:   ‑ ‑ ‑ parts of the affidavit, particularly, page 39, the file note.  I would be calling for the original of that file note which alleges that – it is dated 27 February from Rene Kopiec saying that she called the agent at that stage for the applicant.  I would need to see the original of that and satisfy myself that that was bona fide because the agent who was doing this as a pro bono through the Botany Migrant Resource Centre on behalf of the applicant, filed this 24‑page application, dated the 20^th, and it arrived on the 21^st.

HER HONOUR:   When did the visa expire?

MR GWOZDECKY:   On the 18^th but on the 11^th he called the Department and said, “Listen, I am preparing this application.”  Because it required statutory declarations from competent persons, and the specific formats of the Act, it was – he called on the 11^th and then he called on the 20^th and said, “It’s coming”, and it arrived on the 21^st.  So, it was technically, I suppose, two days after the expiry of the visa but it was ‑ ‑ ‑

HER HONOUR:   Technicalities are everything in this area, unfortunately.

MR GWOZDECKY:   Yes.  Your Honour, what I was going to say was after the applicant was detained shortly after from the family home, the agent – the only time he helped her was with that application on the 20^th.  So, that file note, I would like to see the actual original to satisfy myself that that occurred and I would like to make some investigation with Mr Alexandrou about that because it would seem to be contradictory to what he had just put in.

HER HONOUR:   How much time do you need?  Mr Johnson, I am back here on 18 November.

MR JOHNSON:   You are, your Honour, yes.

HER HONOUR:   She is in detention.

MR JOHNSON:   Yes, but Ms Watson reminds us that this particular applicant is in detention.

HER HONOUR:   And in a fairly bad way, I understand.

MR JOHNSON:   There do seem to have been some problems.  But, realistically, your Honour, I do not know how much time my friend needs.  We say that he should be on a fairly short leash, as it were, and that whatever further is to be filed ought be filed in sufficient time for us to look at it and see whether or not there is anything that needs to be put in response for the purposes of the order nisi application.

HER HONOUR:   Well, I will tell you what:  I will list it in the week, for hearing, if it is to go to a hearing, commencing 28 October, but I will list it for mention on the 14^th at 9.30 to see if everything – I will not give specific directions but I will list it for mention to see if there is any problem with the exchange of documents and filings and so on.

MR JOHNSON:   Thank you, your Honour.

HER HONOUR:   At this stage, I will simply certify for the attendance of counsel; adjourn the matter until 14 October at 9.30 am for mention for a hearing on 28 October at 9.30 am in Sydney.

The Court will now adjourn.

AT 11.46 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 14 OCTOBER 2002