Belchamber & Anor v Minister for Immigration and Citizenship

[2012] HCATrans 79

[2012] HCATrans 079

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide          No A4/2012

B e t w e e n -

JANET LEE BELCHAMBER

First Plaintiff

MOHAMED GHANMI

Second Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON THURSDAY, 22 MARCH 2012, AT 10.19 AM

Copyright in the High Court of Australia

MS E.F. NELSON, QC:   May it please the Court, I appear for the plaintiffs.  (instructed by McDonald Steed McGrath)

MR C.D. BLEBY:   May it please the Court, I appear for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes.

MS NELSON:   I can tell your Honour that the parties are agreed that the Court may make a consent order upon a certain undertaking being given by the defendant that the plaintiffs have leave to discontinue the proceeding within seven days on the defendant’s undertaking made on 22 March 2012 that the second plaintiff’s application for a particular class of visa will be considered afresh by a different delegate.  There is, however, no agreement as to the issue of costs and certainly it will be my application that this is a proper case where the plaintiffs should have their costs.  It may be appropriate as I am at the lectern for me to put my position on that topic now rather than later.

HIS HONOUR:   Yes.

MS NELSON:   Your Honour, this decision was made in January 2012 and it was communicated to my clients on or about 15 January.  On 23 January, my instructing solicitor wrote to the relevant authorities setting out that the decision was affected by jurisdictional error and setting out at length why that was so.  On 25 January, there was a response which, in essence, said that the relevant authorities were not prepared to accept that the decision was affected by jurisdictional error.  However, yesterday, my instructing solicitor received a letter from the Australian Government Solicitor which acknowledged that the delegate’s decision was affected by jurisdictional error and was at law no decision at all.

HIS HONOUR:   Was the error identified?

MS NELSON:   No, not in the letter.

HIS HONOUR:   No.

MS NELSON:   I mean, it has clearly been identified, but not to us.  One of the matters that I put to the Court is this, that the delegate’s decision contains a serious and adverse finding against the first plaintiff in this matter who is an admitted practitioner in this State and who has practised without blemish for a number of years.  Given the level of the adverse finding we submit that it was appropriate for these proceedings to be issued, and they were served on the Government Solicitor around about 21 February this year, so some weeks ago.

HIS HONOUR:   What is the adverse finding about the first plaintiff?

MS NELSON:   If your Honour goes to the decision, which is the exhibit JLM 9, the affidavit of Ms McGrath ‑ ‑ ‑

HIS HONOUR:   Yes, I have that.

MS NELSON:   ‑ ‑ ‑ the finding appears on page 2 of the decision and it is the last paragraph on that page which says:

After reading through the application and statements made at interview I have concerns that the sponsor may have found a suitable business partner rather than spousal partner to assist in procuring and securing products from Morocco for her business.  In light of my other concerns with this case, I believe that the primary purpose of this application is to also afford –

split infinitives, not mine –

the applicant an opportunity for financial betterment rather than to undertake an ongoing spousal relationship with the sponsor.  I believe that the sponsor may be complicit in assisting the applicant to this end.

HIS HONOUR:   Yes.

MS NELSON:   That finding could potentially affect consideration of my client’s fitness to practise in this State.  I do not elevate it to that level but it has that quality about it.  The objection, as I understand it, to an order for costs is that a merits review was available to the plaintiffs, notwithstanding the affliction of the purported decision by jurisdictional error.  On that topic I say, with respect, that first of all I do not know that the Tribunal review process is an appropriate process to deal with that sort of finding, and secondly, we would say that such a process would take a lengthy period of time.  My understanding is it could take up to two years.  I acknowledge that that evidence is not before the Court.  If it is going to be a matter of dispute we would want time to put some material on the Court, but that is a matter where I have those instructions.

We would say that this case then falls into the category of cases where the Court has said it will not tolerate serious departures from the rules of natural justice and notwithstanding the authorities that say there is a public interest in having matters of this kind dealt with promptly and cheaply without unnecessary judicial intervention, I suppose I make these submissions. 

Firstly, the Tribunal review process would not deal with the matter promptly.  Secondly, in my respectful submission, the Tribunal is not the appropriate forum to deal with that sort of adverse finding against the first plaintiff.  Thirdly, there has been an opportunity afforded to the Minister to acknowledge earlier and before proceedings were issued that the finding was tainted with the jurisdictional error and that opportunity resulted in a refusal to make such an acknowledgement.

There is authority for the proposition that in cases of a serious departure from the rules of natural justice a court should properly offer remedies of prerogative or declaratory relief, and we say that this case falls into that category.  I make the observation that that finding appears to have no basis in the evidence and material that was before the delegate.  It may well be – and I am only speculating but I would be surprised if it is not – a matter that caused those advising the Minister to acknowledge jurisdictional error yesterday.

In a case of Macksville and District Hospital v Mayze ‑ which is a case where his Honour Justice Kirby who was then President of the Court of Appeal made some observations – (1987) 10 NSWLR 708 at 722 said that :

The courts should therefore not too lightly ignore infractions, committing parties to the expense, delay and inconvenience of an appeal where a serious injustice may have been done at first instance.

Later he said that:

the procedure of prerogative or declaratory relief appropriate where there is a risk that the appellate tribunal will not be able to remedy immediately and fully a damaging and adverse decision -

The nature of the finding against an admitted practitioner is such that not only has it been made, we would say with respect, unlawfully, but also unfairly, and if made unfairly then certiorari would lie – I mean, of course, it is obvious that the only basis on which the defendants could make that submission is by saying that even if there is jurisdictional error then the Court should not exercise its discretion to make the order so it goes to the discretion.  That procedure and line of thinking was followed in a Victorian case which involved a legal practitioner of Garde‑Wilson v Legal Services Board [2008] VSCA 43. So given all those matters we would say, with respect, that this is a proper case for the plaintiffs to have their costs. May it please the Court.

HIS HONOUR:   Yes, thank you.  Yes, Dr Bleby.

MR BLEBY:   If the Court pleases, the Court has been provided with a draft order that your Honour should have.

HIS HONOUR:   Yes.

MR BLEBY:   It recites an undertaking by the defendant Minister.  I give that undertaking on behalf of the Minister, and it follows that the only question remaining is that of costs.  The basis on which the defendant says that there should be no order as to costs is, as my learned friend forecasted, that there is no reason why the first plaintiff as sponsor of the second plaintiff’s application could not pursue merits review in the Migration Review Tribunal. 

The Tribunal has full powers of merits review under section 349 of the Act and, notwithstanding that my client has accepted that the delegate’s decision is afflicted by jurisdictional error, it remains the case that merits review was and is available and resort to this Court should be taken to be as a matter of final resort.

I am unable to assist the Court with cases that appear to reflect precisely this scenario, although those cases where the Court, this Court, has proceeded to quash decisions that are made directly by a delegate in similar situations there always do seem to be reasons why MRT review was not or could not in the circumstances have been pursued.  I simply note in that case the decision of your Honours last year in Plaintiff M13 of 2001 v Minister for Immigration and Citizenship [2011] HCA 23.

In this case there is no reason why merits review could not be pursued.  My friend has put up two reasons why it was appropriate to seek constitutional relief in this case.  One is the nature of the finding against the first plaintiff who was a legal practitioner and my friend ‑ ‑ ‑

HIS HONOUR:   Well, was there a finding against the first plaintiff?

MR BLEBY:   Well, I was about to address that, your Honour.  In one sense it is a contingent observation, because the ultimate conclusion is I believe that the sponsor may be complicit in assisting the applicant to this end.  Now, the primary finding is against the second plaintiff.  This is an observation as to what the delegate thinks may be the case.  It is not a finding ‑ ‑ ‑

HIS HONOUR:   Well, the finding is at page 3, that:

the applicant and sponsor do not have a mutual commitment to a shared life to the exclusion of all others and, that the relationship between them is not genuine and continuing. 

Now, that is equivocal as to whether it is one or both who lack the relevant commitment and, if it be one, which one that is?

MR BLEBY:   With respect, your Honour, that is an accurate observation.  The reasons that occur on the previous page would, I think, seem to suggest, albeit to a degree implicitly, that it is the second plaintiff who primarily does not hold the relevant commitment.  The first plaintiff may be of the same nature and I do not think we can elevate it any higher than that.

HIS HONOUR:   Well, it is fair to say, I think, that the reasons are, at the least, not artfully drawn.

MR BLEBY:   With respect, I concur with that.  But what follows out of this is that unlike the cases that my friend has referred to, Macksville and Garde-Wilson, this is not a case where a professional’s right to practise has been effectively removed by administrative decision.  This is simply an observation in passing, as your Honour, with respect, rightly knows in preparation for the final finding.  There is nothing to suggest that there is any concrete consequence that falls out of this and consequently nothing to suggest that his is anything other than the ordinary run of immigration cases where merit review to the Tribunal is available and indeed appropriate.

The second is the delay that is said may attend Tribunal review.  I am not in a position to respond to the plaintiff’s assertion of two years one way or the other, but even if we accept that that is so, that simply means that this is an ordinary case.  There is nothing that takes it out of the ordinary that would warrant coming to this Court in the first instance for constitutional relief. 

HIS HONOUR:   Now, you or your solicitors have sent to me and I assume have told the other side that they have sent to me, a copy of the decision of Justice McHugh in ReMinister; Ex parte Lai Qin 186 CLR 622. Is that right?

MR BLEBY:   It is, your Honour.

HIS HONOUR:   What am I meant to get out of this?

MR BLEBY:   Only an observation, with respect, and it is this.  The case itself is not on all fours on the facts.  It is not an analogous case in that sense.  The observation that his Honour Justice McHugh draws at page 625:

If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. 

In this case the defendant has proposed no order as to costs in circumstances where the plaintiff has had another option available to it.  We say to make no order for costs in this case, given Justice McHugh’s reasoning, is actually to give the plaintiff some credit and the defendant Minister has proposed to settle this matter at the earliest practicable opportunity following the commencement of proceedings.  So I do not rely on that case for anything other than an illustration of why, in this case, an order as to costs would be appropriate.  But I accept there is not a consonance of fact.

HIS HONOUR:   In the processes followed by the delegate, there was, I think, reference to the fact that the second plaintiff was interviewed.

MR BLEBY:   Yes, your Honour.

HIS HONOUR:   Was the first plaintiff ever interviewed in that process?

MR BLEBY:   No, your Honour. 

HIS HONOUR:   Yes.

MR BLEBY:   Those are my submissions, your Honour. 

HIS HONOUR:   Yes, thank you.  Yes, Ms Nelson, anything in reply?

MS NELSON:   No, may it please, your Honour.  Perhaps if I just refer briefly, however, to the case that my learned friend made available to the Court.  That dealt with an issue of unreasonableness.  That was the argument put by the plaintiffs in that case.  It revolved very much around the facts of the case. There was a four‑day period between a recommendation being made on 11 January and proceedings being instituted on 16 January against a background of the solicitors of the prosecutrix being told not to take any further steps in the matter and hinting that the recommendation might be successful.  What his Honour specifically found at page 628 at about point 8 was this:

I do not think that the failure to say anything in the four day period between 16 January 1996 could be regarded as unreasonable conduct on the part of the Minister or his advisers requiring him to pay the whole or part of the costs -

So it is distinguishable, particularly on the facts, and if one looks at the facts in this case they are quite different.  May it please the Court.

HIS HONOUR:   Yes.

The second‑named plaintiff, Mohamed Ghanmi, applied for the grant of a Subclass TO300 Prospective Marriage Visa.  By letter dated 15 January 2012 the Senior Migration Officer Cairo wrote to Mr Ghanmi telling him that the application for his visa had been refused.  The application which Mr Ghanmi had made had been proposed by his fiancée, Ms Janet Lee Belchamber, the first plaintiff in this proceeding. 

The Senior Migration Officer Cairo, as a delegate of the Minister, gave reasons for his decision that the prescribed criteria at paragraphs 300.216 and 300.221 of Schedule 2 to the Migration Regulations were not met.  Under the heading of “The Nature of the Persons’ Commitment to Each Other” the delegate said, among other things that:

After reading through the application and statements made at interview I have concerns that the sponsor –

I interpolate Ms Belchamber –

may have found a suitable business partner rather than spousal partner to assist in procuring and securing products from Morocco for her business.  In light of my other concerns with this case, I believe that the primary purpose of this application is to also afford the applicant –

I interpolate Mr Ghanmi –

an opportunity for financial betterment rather than to undertake an ongoing spousal relationship with the sponsor.  I believe that the sponsor may be complicit in assisting the applicant to this end.

The conclusion expressed by the delegate was put in these terms:

The concerns outlined above might not be significant in isolation.  Collectively they demonstrate that there is little positive evidence supporting this relationship.  I am of the opinion that the applicant and sponsor do not have a mutual commitment to a shared life to the exclusion of all others and that the relationship between them is not genuine and continuing.

Within a few days of the decision being communicated, the solicitor for the plaintiffs wrote to the Department alleging that the decision made by the Minister’s delegate was attended by jurisdictional error.  The Minister’s solicitors replied denying that allegation and on 21 February 2012 the plaintiffs commenced proceedings in this Court by way of application for an order to show cause challenging the decision of the delegate. 

It is accepted by both sides that it had been open to the plaintiffs, or one of them, to apply to the Migration Review Tribunal for review of the delegate’s decision and that on such a review the merits of the application would have been considered afresh. 

The application was listed for first directions before me today.  Yesterday, the parties resolved the substance of the dispute between them and agreed that upon the Minister, by his counsel, undertaking to the Court that the second plaintiff’s application for a Partner (Prospective) [Class TO] Subclass 300 Visa dated 18 July 2011 would be considered afresh by a different delegate the plaintiff should have leave to discontinue the proceeding in this Court within seven days.  The parties did not agree, however, upon what order, if any, should be made for the costs of the proceedings.            The Minister submits that there should be no order for costs made in respect of the proceedings.  The plaintiffs submit that they should have their costs. 

As Justice McHugh pointed out in ReMinister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624 the power to order costs is in most jurisdictions, and in this Court, a discretionary power. As his Honour continued:

Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs -

Latoudis v Casey (1990) 170 CLR 534.

Success in the action or on particular issues is the fact that usually controls the exercise of the discretion.  A successful party is prima facie entitled to a costs order -

Latoudis (1990) 170 CLR 534 at 543, 566-568.

When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.

In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action.  The court cannot try a hypothetical action between the parties -

Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201.

To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided.  In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action –

Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201.

The plaintiffs in the present matter submit that first, the decision of the delegate of the Minister constituted an adverse finding against the honesty of the first plaintiff.  Because the first plaintiff is an admitted lawyer, a finding of that kind is, of course, a very serious matter and as a lawyer, the first plaintiff is rightly very sensitive about any question that is raised about her honesty or probity.  No criticism could possibly be levelled at a lawyer who is sensitive of the importance of reputation for and the fact of honesty and probity in all matters. 

The plaintiffs further submit that now that the Minister accepts that there is jurisdictional error, the Minister reaches a conclusion that should have been reached much earlier.  In combination, the plaintiffs submit, these two considerations point first to it being entirely reasonable for her to institute proceedings in this Court rather than resort to the merits review available to her in the Migration Review Tribunal and she would submit to the further conclusion that the Minister’s continued defence of the proceedings until the eve of the first directions hearing was unreasonable to the point where the Minister should pay the costs of the proceedings.

It is neither possible, nor would it be right, for me to make some prediction about the ultimate outcome of this litigation had it been continued to trial and judgment.  Further, although, as I have said, the first plaintiff is rightly sensitive to whether some finding has been made by the delegate about her honesty, I will confess that I do not read the decision record of the delegate as necessarily casting aspersions on her honesty or probity, whether in the respect she now points to or otherwise.

Whether or not that is so, however, I am of the opinion that the critical question to answer is whether the conduct of the Minister has been so unreasonable that, despite the settlement of the proceedings today, the plaintiff should have her costs of those proceedings. 

In my view, it is not demonstrated that the Minister’s conduct has been so unreasonable as would warrant any order being now made for costs of the proceedings.  The proceedings are compromised.  They are compromised on a basis that sees the plaintiffs achieving a result of a kind which they desire.  That fact, of itself, does not, without more, entitle the plaintiffs to an order for costs. 

I am not persuaded that the Minister’s conduct has been so unreasonable that an order should be made. Accordingly there will be no order as to costs. Dr Bleby has proffered on behalf of the Minister the undertaking that has been sought. That undertaking is received. Otherwise, the order is that pursuant to rule 27.10.2(b) of the High Court Rules 2004 the plaintiffs have leave to discontinue this proceeding within seven days. There will be no order as to costs.

AT 10.56 AM THE MATTER WAS CONCLUDED