Bridges, Ex parte - Re MIMIA
[2004] HCATrans 161
[2004] HCATrans 161
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P129 of 2002
In the matter of -
An application for a Writ of Prohibition and Certiorari against MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
Ex parte –
RONALD HENRY BRIDGES
Applicant/Prosecutor
HEYDON J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
FROM PERTH BY VIDEO LINK TO CANBERRA
ON WEDNESDAY, 19 MAY 2004, AT 4.29 PM
Copyright in the High Court of Australia
MR R.H. BRIDGES appeared in person.
MR M.T. RITTER: May it please your Honour, I appear for the Minister. (instructed by Australian Government Solicitor)
MR V.G. DE ALWIS: May it please your Honour’s Court, I will be supporting an application – may I call it a joint application by the applicant and I for your Honour’s Court to grant me leave to appear as amicus curiae or as McKenzie friend, your Honour.
HIS HONOUR: Yes.
MR DE ALWIS: I will not charge any fees for ‑ ‑ ‑
HIS HONOUR: Yes, all right. Thank you, just take a seat. Mr Ritter, did you hear what Mr De Alwis just said?
MR RITTER: Yes, I did, your Honour.
HIS HONOUR: Do you oppose him appearing on behalf of Mr Bridges?
MR RITTER: My instructions are to oppose that.
HIS HONOUR: Yes, very well. Is Mr Bridges part of this hook up?
MR RITTER: He is in Perth as well, as I understand it, sitting at the Bar table.
HIS HONOUR: I see, thank you. Mr Bridges, you want Mr De Alwis to appear for you during this hearing?
MR BRIDGES: If that is possible, please.
HIS HONOUR: Yes, very well, thank you. Just take a seat. Why, Mr Ritter, do you oppose Mr De Alwis representing Mr Bridges?
MR RITTER: Two reasons, your Honour. Firstly, he has been suspended by order of the Legal Practitioners’ Disciplinary Tribunal from engaging in legal practice. We would submit that appearing even as amicus or McKenzie friend, if that be the correct title, would be contrary to the suspension order of the Disciplinary Tribunal. The second issue, your Honour, is as to whether he is properly a person who may assist the Court either by way of McKenzie friend or amicus.
HIS HONOUR: I understand the first point, but what do you mean by the question “is he properly a person who may assist”?
MR RITTER: Well, with respect, your Honour, having read the terms of the affidavit that has been filed by Mr De Alwis, it raises some question in our minds as to whether he is in a position to be able to assist properly. I accept that that is a matter which your Honour may have a different or alternative perspective upon and it may be best if your Honour comes to the view that he is able to appear, that your Honour hears from Mr De Alwis and, of course, informs yourself as to whether he is someone who can assist the Court.
HIS HONOUR: Well, it is just that he is not now qualified to practise law but he has been qualified to practise law and he has acted for Mr Bridges on various occasions in the past. He is more likely to be able to foster Mr Bridges’ interests than Mr Bridges is himself.
MR RITTER: I understand that position, your Honour, and we certainly do not take issue with the fact that he did represent Mr Bridges before the Full Court.
HIS HONOUR: Yes, anything else you want to add on that point?
MR RITTER: Your Honour, not on that point. The first point, though, I should, I think, bring to your Honour’s attention that in the past, whilst suspended, Mr De Alwis did represent certain people and did so on the basis of saying that he was acting as amicus or McKenzie friend I should mention to your Honour that the Disciplinary Tribunal in a reference to it later formed the view that in so practising he had breached either the order of suspension or an undertaking he had given to the Legal Practice Board not to engage in legal practice. I simply bring that point to your Honour’s attention that that was the view taken by the Legal Practitioners’ Disciplinary Tribunal in previous references before it.
HIS HONOUR: The difficulty I have is that if he had never been admitted to practise law at all, but had applied to be a McKenzie friend, his lack of legal qualifications would not stop him being a McKenzie friend, would it?
MR RITTER: No.
HIS HONOUR: He has now lost the status of a legal practitioner. That would appear to bring him back into the ranks, as it were, of the general citizenry. Whether it is a breach of any obligation imposed on him by the Western Australian authorities is not a topic I am inclined to go into in view of the shortness of time and the importance of what has to be done this afternoon, but thank you for your submissions.
Mr De Alwis, I am prepared to let you represent Mr Bridges subject to that representation proving effective, but you will have to make up your own mind whether it is a breach of any obligations you owe under the laws of Western Australia in consequence of your removal from the roll. You understand?
MR DE ALWIS: I do understand, your Honour. In fact, may I put the record correct and straight, your Honour ‑ ‑ ‑
HIS HONOUR: No, no, I think we should get to the main point.
MR DE ALWIS: Yes, certainly, thank you.
HIS HONOUR: Let me next say this. I have read by way of background the decision of Justice Marshall in the Federal Court of Australia and the decision of the Full Federal Court dismissing an appeal from the orders of Justice Marshall. I have also read the documents filed by the parties in this application and, in particular, the affidavits of the applicant, which were dated 14 November 2002, and the one filed on 19 May 2004. Mr Ritter, I am inclined to admit those affidavits subject to relevance. Do you have any objection to that course?
MR RITTER: No, I do not, your Honour.
HIS HONOUR: Very well. Now, Mr De Alwis, is there anything you want to add to the arguments which Mr Bridges has been propounding in his two affidavits?
MR DE ALWIS: Yes, your Honour. First of all, I must say, your Honour, that the Full Court erred when their Honours said that the principle in Taylor did not apply to the circumstances that Mr Bridges is in, but, however, then we have to revisit ‑ ‑ ‑
HIS HONOUR: When you say the Full Court, do you mean the Full Court in Shaw’s Case?
MR DE ALWIS: The Full Court of the Federal Court where I argued the matter before the Full Federal Court, your Honour, for Mr Bridges.
HIS HONOUR: Which part is wrong?
MR DE ALWIS: Their Honours said that, at page 459, your Honour, under paragraph 13, I believe.
HIS HONOUR: Yes, but need we bother about that? The decision in Re Patterson; Ex parte Taylor is now part of history; it is not a part of the law.
MR DE ALWIS: By Shaw decision, your Honour – in fact, that is why I want to get this matter removed to the Full Court for the purpose of revisiting Shaw where I would be arguing, your Honour, that the minority decision in Shaw Case was more correct than the majority decision and, in fact, there is support from the judgments of their Honours for my argument and I would be advancing an argument that the Full Court in Shaw’s Case did approach the matter correctly, however, the conclusions were not absolutely correct.
I say that for a few reasons. In Re Patterson; Ex parte Taylor – may I say Taylor decision – I would refer to it as Taylor decision, your Honour – in that the issue was whether Mr Taylor was an alien or not under the Constitution and under 51(xix). Then, your Honour, their Honours in the majority decision held that there was no proper ratio in that. I would be arguing before your Honour’s Court, if I am given the leave and the time and the opportunity, that the ratio which was decided in that was, in fact, binding or, as their Honours in the majority decision themselves said, when the Court makes a decision of that nature, the Court may usually follow unless there is some grave concern.
In this instance, I would go to the extent of saying, your Honour, that Taylor decision was correct. The ratio was correct and even the obiter, I would say, was absolutely correct. In the case of Shaw, there is little difference between Mr Bridges’ case and Taylor’s Case or Shaw’s Case. Both cases were decided on the basis of section 501, and compared with that, Mr Bridges’ case is under section 201.
I would be arguing before your Honour that the legislature in her own wisdom has made a distinction between 201 and 501. It is loud and clear, and 201 would be the lesser evil, I would say, your Honour, if I am allowed to say that word, or the lesser devil. Mr Bridges, I would say, your Honour, has in fact come to this country on a special visa. I would be submitting to your Honour’s Court that that special visa allowed him to….., allowed him to cheer loud for Australians at cricket, soccer. In fact, in soccer, there is a mania particularly in the European countries.
Here is a man who has come to Australia who backs Australia when the Socceroos play the British clubs, and he is no more a member of the Manchester United, your Honour, or any of the other famous clubs there, and he does not even cheer David Beckham. He cheers other Socceroos.
HIS HONOUR: Yes, I ‑ ‑ ‑
MR DE ALWIS: So there is a whole lot of things like that I would be outlining, your Honour, in my final argument, so today I am trying to make a prima facie case that your Honour’s Court may remove it to the Full Court so that a fuller hearing would be allowed, and then I go further, your Honour, and I say that their Honours in the Full Court, unfortunately misled themselves when they said, your Honour, at page 457, bottom, the paragraph just above the legislation there, your Honour. That is on the appeal book.
HIS HONOUR: This is the Full Court, Justices Sackville, Kiefel and Hely.
MR DE ALWIS: That is right, your Honour.
HIS HONOUR: Yes.
MR DE ALWIS:
Mr De Alwis sought to amend the notice of appeal to raise a number of fresh grounds. None of these grounds had been put to the primary judge. In any event, none had any prospects of success. Accordingly, leave to amend the notice of appeal was refused.
I would be submitting to your Honour’s Court, your Honour, with great respect, very humbly, that that was misleading statement and that was erroneous. I raised six international law issues for the first time in this country and, in fact, as I have said in my affidavit, I was the first to raise this alien issue in 1994 in the case of Mr Stephen…..and then somebody followed that anyway later on. I was the first to raise the issue of rights of the type I am mentioning…..Case in 1994 when I was an article clerk still and therefore ‑ ‑ ‑
HIS HONOUR: Mr De Alwis, we are drifting a long way from whether or not a prima facie case has been established.
MR DE ALWIS: No, your Honour, with great respect, I am raising those two issues again in this aspect ‑ ‑ ‑
HIS HONOUR: Well, there is nothing about that in the draft orders or the notice of motion or the affidavit.
MR DE ALWIS: Your Honour will see the two applications that were deemed abandoned had all those issues, which I drafted and unfortunately Mr Christie, who was the solicitor appointed after I got suspended, amended to include only this issue of the aliens which I would have done, your Honour. I had every good knowledge to draft those issues and I stand by them and I will argue vehemently, your Honour, as vigorously and rigorously as possible that Mr Bridges should not be deported because of that, particularly if your Honour has seen the affidavits.
Two papers – and one of them went on the Internet as well – said that Mr Bridges is a paedophile and had his wedding photograph published, he and his wife, where the wife had nothing to do whatsoever – an innocent woman’s picture had been published there and therefore we have – I have already engaged a solicitor’s firm to act on that for her. Mr Bridge’s only member of the family there who would have supported, his sister, does not want to know him any more. It is a tragedy, your Honour.
HIS HONOUR: Yes, I have read the two affidavits of Mr Bridges.
MR DE ALWIS: I am sorry?
HIS HONOUR: I have read the two affidavits.
MR DE ALWIS: That is right, your Honour. So, therefore, I would be arguing that it will be a cruel thing to do to deport him when we do not even extradite, your Honour, to a country where there is death penalty and here is a case where a man is sent, in fact, to the gallows or the sharks, may I say your Honour. There is a club of do‑gooders there who will not even kill those two youths who killed James Bolger and they are still looking for and, in fact, people laughingly say that those two youths whose identities were changed due to the fear that they will be killed, have come to Australia. I think that is in light - in good humour, I believe. However, the fact remains that, your Honour, each and every issue I have raised in international law I will support, I will argue and I will be able to persuade your Honours Full Court.
Those are two of the main issues that I advance, your Honour, to show that the Full Bench’s decision was wrong. I also would go, your Honour, again back into sections 201 and 501, and say that the deportation order was affirmed by the Administrative Appeals Tribunal which took into account, not only the offences committed within 10 years of the appellant becoming a permanent resident, but also the offences committed after that period.
The power to deport under section 201 of the Migration Act was available where a person had been convicted in Australia of an offence which is committed when the person had been – that is a headnote, your Honour - had been in Australia as a permanent resident for a period of less than 10 years. If your Honour sees the number of counts, your Honour would see the last two counts were the grave ones and he got the maximum penalty for those two ‑ ‑ ‑
HIS HONOUR: Yes, Mr De Alwis, this is a point which was decided against Mr Bridges by the Full Federal Court. Two applications for special leave to appeal against that have been made. Those applications have been deemed to have been abandoned under the Rules. It is not appropriate for you to seek to reagitate this point in relation to an application for an order nisi.
MR DE ALWIS: May I , your Honour, with great respect, say that I will be making an application, in fact, as soon as possible to reinstate one of those or even accept another one with an extension of time ‑ ‑ ‑
HIS HONOUR: That is a different matter, but it cannot be permitted to be raised on an order nisi as proceedings now stand.
MR DE ALWIS: I will drop that, certainly, your Honour, because I was the one who argued in the case of Pannasara v the Queen that Order 3, rule 3 supersedes Order 69, rule 13, and that a judge may grant an extension of time beyond that. So, therefore, your Honour, today I think I will only address your Honour’s Court on the necessity of removing this matter to the Full Court and granting sufficient time. If about six weeks is given, I am quite confident that I can get my practising certificate back, clear my name and come before your Honour’s Court in the wig and the robe and plead for mercy for Mr Bridges and quite correctly. I am quite convinced about that.
HIS HONOUR: Yes, thank you.
MR DE ALWIS: I will be, of course, then arguing as I said earlier, your Honour, about the section 201. The alien issue, your Honour then, might I address that briefly? That is the point in this…..application I believe, your Honour.
HIS HONOUR: Is this a point which is additional to the points you have already developed this afternoon?
MR DE ALWIS: A little bit more, your Honour. I am going to say that the word “alien” has been…..like law, like courts, like men, like language, and “alien” has an entirely different meaning than the meaning that was attributed to it at the time it was first drafted and carried on. Then I would also say, your Honour, that today in the present context, the politics of the world, the politics of Australia, politics of United States and politics of the United Kingdom must be taken into account in assessing that.
We call ourselves coalition of the willing, so therefore there is again we have got closer to the UK again, and I would be arguing, if I am granted leave before the Full Court of the High Court, your Honour, that in that context, “alien” should mean somebody who will take a gun and aim at Australia, like Bin Laden, but not Mr Bridges.
Unlike countries like my own country, Sri Lanka or Ceylon, as it was called, or India or Pakistan or other similar countries that have been mentioned in the Shaw decision, your Honour, this is a country which commenced with the UK citizens. We did not have the citizens who are here now. They were brought from the UK, so therefore, the British subjects had only geographically brought here. So therefore, that aspect also must be taken into account by the Court, your Honour, in interpreting the word “alien”.
Mr Shaw, who came at the age of two years, I would say, your Honour, would be entitled to ask that the Court declare that he has been absorbed into this society, and just the same, Mr Bridges has been absorbed into this society. He had, as I have mentioned in that affidavit, your Honour, four companies of his own employing 20 Australians at the time he went to gaol, and this man has paid the penalty twice over now in detention as long as – the period was as long as the prison term, and he has to pay $500‑odd per day that he spends in the detention centre, unlike in prison, and a whole lot of privileges that all other similar prisoners had have been deprived or denied to him.
He did not get parole, he did not get work release, he did not get home leave, he did not get so many other rights that he would have had. In fact, as has been said, it was raised even in the case of Neville Taylor v Minister for Immigration that the detention centres are supposed to be worse than the prisons. So this man now has a whole lot of health issues, and he is not a threat to this world any more, your Honour. He is a broken man. He is an old man. He has no interest in sex any more. The recidivism is almost nil, and he has said that he will never go near even that girl. He is full of remorse, he is sad about it and he has learnt a very good lesson, a good lesson. If he comes out into our society now and behaves as a role model for such other people, this country will gain a lot, because that will prove that a man like that, who has been a devil, can become an angel, given the opportunity.
Again, coming to the Shaw decision, my position, your Honour, is that the deadline put by their Honours in the majority at 86 would be more correct. I will be arguing that, and I will also be saying that this man, who came at the age of two years as a dependant of his father, should have been told when he reached the age of 18 that he had an option to become an Australian citizen or either go back to the UK or remain here as a permanent resident, but he will then be exposed to this kind of danger. We had a duty to tell him, and we did not do that. We failed to do that. So we have failed him, and also the amendments should have, must have, provisions – well‑meaning, clear provisions – to say that the privileged position that the UK residents enjoyed should not be there any more if they did not become citizens under the amendment Acts.
Due to the fact that the amending Acts are silent, may I submit to your Honour’s Court very humbly that they are entitled then to say, “Well, you did not tell me. Therefore, please let me live here. That is my wish now”. So that he should be given the opportunity to become a citizen now then, because the Department of Immigration or the responsible Minister failed to tell them, failed to tell him, and there are some several thousands affected by that, I have been told. It has been, in fact, referred to in the Shaw decision, too.
May I also make a point that the migration power, your Honour, in section 51 of the Constitution, comes after the aliens power – nationality and aliens power. Then, your Honour, at the time the draftsman drafted, that is, paragraph (xxix) or so, in the Constitution, in section 51, he was aware that there was one before, as (xix), that is paragraph (xix). Paragraph (xix) should have then contained something, or migration power, which was known to the draftsman, in his own wisdom should then expressly stated something that will say that the migration power will override or supercede the power that is given under the aliens power. Therefore, I say, your Honour, that that should supercede the migration power and therefore the Minister for Immigration’s power that he had to cancel Mr Bridge’s visa under section 201 must be viewed in the light of that as well.
If that is done, then I have no doubt, your Honour, the Minister would have considered giving a different version or different decision and also, your Honour, it is also pertinent to state that the decision‑maker, the delegate to the Minister, used the sentencing remarks of his Honour Justice Walsh, for whom I have the highest regard, he is a great judge, but his Honour was never told that this man – in fact, it is never told in so many other cases, that this man is liable for deportation. In that case, the length of the prison term would have been lessened and his Honour may have, in fact, made another remark, saying, “I think this man has been amply punished. We must give not only the theory of deterrence some importance; we must at the same time in equal terms – in equal terms give thought to the reformative theory”. Therefore, his Honour could have, in fact, mentioned that at the time that he was entitled to parole that the matter be brought back to his Honour’s court so that his Honour’s court can view particularly the thing that has been used against him so much, the psychologist’s report.
HIS HONOUR: Mr De Alwis, this point does not go to the constitutional validity of sections 200 and 201, which is what you are challenging, I think.
MR DE ALWIS: Yes, my argument is, your Honour, to have a prima facie case to go before the Full Court.
HIS HONOUR: All right. I understand that point.
MR DE ALWIS: Yes, your Honour. I will ‑ ‑ ‑
HIS HONOUR: Is there any other matter you want to raise?
MR DE ALWIS: I am sorry?
HIS HONOUR: Is there any other argument you wish to advance?
MR DE ALWIS: And that is at level nine, your Honour, under the issue at page 458:
The primary judge took the view that it was unnecessary for him to rule on the question of construction because, even if an error of law had been committed by the AAT, it was an immaterial error.
I will be addressing Court on that at length, your Honour, and say that it was a very material error, not an immaterial error at all. It is expressly stated in 201 that it is only for the first 10 years.
HIS HONOUR: Yes, all right. I understand that argument.
MR DE ALWIS: Yes. I will leave it at that, your Honour. It is simple English, in fact. In fact, we must also remember, your Honour, that Mr Macliver who appeared for the respondent Minister informed the Full Court, your Honour, that he could not uphold the ground relied on by the primary judge for dismissing the application. I had only a few days notice to appear for Mr Bridges before the Full Court seeking leave to appear and I was very, very ill. I was collapsing numerous times each day and later, very much later, of course, I was diagnosed with profuse bleeding in my stomach.
HIS HONOUR: Mr De Alwis, that has nothing to do with this application.
MR DE ALWIS: No, your Honour, I was not ‑ ‑ ‑
HIS HONOUR: Mr De Alwis, you have been granted leave to represent Mr Bridges but in a rational way. Have you any other argument to advance?
MR DE ALWIS: I was trying to say, your Honour, that a miscarriage of justice has been done because no sufficient time was given and an adjournment was not given to me.
HIS HONOUR: Yes, that has nothing to do with the order nisi which has been filed. What further argument do you want to advance about that document?
MR DE ALWIS: Then I would also say, your Honour, that the fact that Mr Bridges did not have representation when he was notified of the notice of intention to cancel and then he is going to the AAT without any representation whatsoever caused a grave miscarriage of justice to him and therefore what was ‑ ‑ ‑
HIS HONOUR: That is not a constitutional point.
MR DE ALWIS: Then, your Honour, I would also say that I have already made the point that language is dynamic, courts are dynamic and society is dynamic and therefore “aliens” word has altered its original meaning.
HIS HONOUR: Yes, I understand that argument.
MR DE ALWIS: Yes, your Honour.
HIS HONOUR: Have you any new argument?
MR DE ALWIS: In fact, I was wondering whether - I did not want to write an outline of submissions or do any research at length and then address Court or…..because I was suspended last time and I was horrified. I do not want to do that and can I ‑ ‑ ‑
HIS HONOUR: Mr De Alwis, we must not keep drifting off into irrelevant things. You have advanced quite a large number of arguments now on behalf of Mr Bridges.
MR DE ALWIS: I am going to ask another about three weeks for me to give further submissions in writing.
HIS HONOUR: I see.
MR DE ALWIS: To support my view that the Shaw Case was not correctly concluded, and that…..must be reinstated, particularly because the
few parliamentary committees that went into the matter of the British subject have not been available to me. I tried my best. In fact, that is why I came to Canberra and I could not get those still. So I have not seen them.
HIS HONOUR: Yes, apart from that application for three weeks to put in written submissions, is there anything else you want to say?
MR DE ALWIS: If I would be granted a brief adjournment, I would, in fact, submit to your Honour’s Court much more than this.
HIS HONOUR: Yes, well that means you have nothing more to say now?
MR DE ALWIS: I am about to say, your Honour, about the Nationality and Citizenship Act 1948 and that is at paragraph [21] of the Shaw decision, your Honour and then later on, it says:
This is apparent from the terms of the definition in section 5(1) of “alien” as meaning “a person who is not a British subject, an Irish citizen, or a protected person” -
Now, I think the Court may investigate as to who a protected person is too, and whether that has changed over the passage of time, and then we go to the next paragraph, your Honour:
The classification by s 7 of the Citizenship Act of the citizens of the UK, Canada, New Zealand, the Union of South Africa, Newfoundland, India, Pakistan, Southern Rhodesia and Ceylon as British subjects in Australian law by virtue of that citizenship, also was an exercise of the legislative power with respect to aliens.
Therefore, the term “aliens” has been, in fact, imported or copied from the British Acts, so therefore, we have to have access to that legislation and then consider this Constitution and that particular paragraph in the light of those, your Honour. I will be submitting that.
HIS HONOUR: Very well. I think you have had more than half an hour now to develop your arguments, Mr De Alwis. Thank you.
MR DE ALWIS: Thank you, your Honour. I am obliged to your Honour’s Court for granting me leave.
HIS HONOUR: I need not trouble you, Mr Ritter.
As long ago as 6 December 2002, the applicant applied under Order 55 rule 1 of the Rules of this Court for an order calling on the respondent to show cause why writs of prohibition and certiorari should not be issued out of the Court. The applicant took this step as the latest in a series of actions designed to prevent a deportation order made by a delegate of the respondent on 15 October 1999 from becoming effective. These actions included proceedings in the Administrative Appeals Tribunal, the Federal Court and this Court.
One other remedy the applicant seeks in the present application is an interlocutory injunction restraining the respondent from holding him in detention and from giving effect to the deportation order.
There is a suggestion that the delay has been occasioned by the need to wait while an apprehended doubt as to the law was cleared up.
The deportation order was made under s 200 of the Migration Act which provides that:
The Minister may order the deportation of a non‑citizen to whom [Part 2 Division 9] applies.
Section 201, which is in Division 9, provides that s 200 applies to a non‑citizen who has been convicted of an offence – see s 201(a) – being a non‑citizen who, when the offence was committed, had been in Australia as a permanent resident for a period of less than 10 years – see s 201(b) – and who was sentenced to not less than one year’s imprisonment for that offence – see s 201(c).
Section 201 applies to the applicant for the following reasons. He migrated to this country in October 1982. On 28 February 1996 he was convicted of various offences relating to an adopted daughter. He was sentenced to 10 years’ imprisonment. One of the convictions arose out of events allegedly occurring in 1985, two out of events allegedly occurring in 1986 and one out of events allegedly occurring in 1988‑1989.
The applicant’s affidavit of 14 November 2002, paragraph 16 states:
I have disputed and I continue to dispute certain of those offences of which I was charged and convicted, as they did not happen.
However, his sentence on each of those four offences was for more than one year: see the table set out in the judgment delivered in the applicant’s appeal to the Full Federal Court: Bridges v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 456 at 460.
Marshall J found that at the time the offences were committed the applicant had been in Australia for less than 10 years: Bridges v Minister for Immigration and Multicultural Affairs (2001) FCA 470 at paragraph [11]. There was no challenge to that finding in the Full Federal Court. The applicant does not dispute that s 201 applies to him.
The applicant’s attempts to challenge the deportation order of 15 October 1999 are as follows. It was affirmed by the Administrative Appeals Tribunal on 10 August 2000. An appeal to the Federal Court, that is, to Marshall J, was dismissed on 27 April 2001. An appeal to the Full Federal Court was dismissed on 23 November 2001. The applicant has filed two applications for special leave to appeal to this Court but each has been deemed abandoned.
The ground assigned in the applicant’s notice of motion of 6 December 2002 is that neither the respondent nor the respondent’s delegates have the power to issue a deportation order against the applicant. It is said that:
The Applicant who is a British subject and has been a resident of Australia since 1982 is beyond the power of the Commonwealth to legislate for his Deportation or removal from Australia.
The notice of motion also relies on “further grounds” said to be contained in the applicant’s affidavit of 14 November 2002. That affidavit sets out an active employment and business career in England up to 1982 and in Australia since 1982, and an active life in the community since 1982. It describes the hopes which the applicant has for his future if he were permitted to stay in Australia. It says that he “has fully integrated into the Australian community”. It records the fear that his life would be in danger in the United Kingdom because of threats by vigilante groups.
The applicant also filed on 19 May 2004 an affidavit sworn on 17 May 2004. That affidavit describes various difficulties in relation to legal representation during the applicant’s attempted appeal to the Court of Criminal Appeal in Western Australia and his appeal to the Full Federal Court. It complains about press publicity he has received. It states some new, and repeats some other material about the applicant’s settlement in Australia. It restates his fear of being returned to the United Kingdom. It complains of an alleged failure of the authorities to pass a letter onto him speedily. It describes his ill-health and unhappy personal circumstances. It annexes favourable references from three people, and it predicts that if not deported, he will play a useful role in society.
In substance, the applicant wishes to challenge the constitutional validity of ss 200 and 201 of the Migration Act. It is necessary for the applicant to establish a reasonably arguable case: see Re Minister for Immigration and Multicultural Affairs; Ex parte “A” (2001) 185 ALR 489 at 495 [25].
Section 51(xix) of the Constitution confers power on the Commonwealth Parliament to make laws with respect to aliens. Sections 200 and 201 are laws with respect to aliens. In Shaw v Minister for Immigration and Multicultural Affairs (2003) 78 ALJR 203 at 210 [32] and 235 [190], 203 ALR 143 at 151 and 187, a majority of this Court held:
the aliens power has reached all those persons who entered this country after the commencement of the Citizenship Act on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised.
The applicant falls within that category. He was born on 6 December 1943 in the United Kingdom of parents who were British subjects. There is no evidence suggesting that they ever became Australian citizens. The applicant entered Australia in 1982. He has not been naturalised. Hence his contention that the respondent lacks power to deport him, which, in turn, must rest on the contention that ss 200 and 201 are invalid, is without legal merit so long as Shaw’s Case stands.
The claim of the applicant to have become fully integrated into the Australian community does not alter the conclusion that he is an alien. That claim, and the facts on which it is based, did not cause him to lose that status: see Shaw’s Case at 210 [31], 235 [190]. He is not an Australian citizen and he does not assert that he is. Hence he is a non‑citizen within the meaning of ss 200 and 201.
All of the applicant’s claims in his affidavits are irrelevant to the constitutional issue which he wishes to raise before the Full Court. One should be specifically mentioned, however. His claim that he fears death on return to the United Kingdom is not a matter which this Court can take into account in this application as framed.
In oral argument today, a representative of the applicant advanced a number of detailed arguments in support of the application for an order nisi. The first group of arguments consisted in a contention that the majority in Shaw’s Case was wrong and that certain statements in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 should be preferred.
The first argument was that Patterson’s Case had a ratio binding on the Court in Shaw’s Case. The second was that Shaw’s Case was about s 501 of the Migration Act, whereas the present applicant’s proceedings concern s 201. A third point was that what was called the cut‑off date should not have been selected as 1949, but rather 1986. A fourth point was that Shaw’s Case should be overturned because the Australian government had failed to inform persons in the position of Shaw, the applicant, and others like them, of their vulnerability to deportation. A fifth argument turned on a contention that the Minister’s power to deal with the applicant under the aliens power would have been differently exercised if the appropriate relationship between that power and the migration power had been realised. A further argument in relation to Shaw’s Case commenced with an analysis of [21] of that judgment in 78 ALJR 203 at 208, in relation to the reasoning turning on the concept of protected persons.
The fundamental difficulty in all these arguments is that although Shaw’s Case was a decision by a bare majority, it is a clear and recent decision of the Court. There is no prospect whatever that if an order nisi were granted the Court would overturn Shaw’s Case. Further, the reasoning in Shaw’s Case concerning the aliens power applies equally to prevent s 201 being outside the aliens power as it did in Shaw’s Case itself to prevent s 501 being outside the aliens power.
A further argument advanced on behalf of the applicant was that the Full Federal Court had erred in Bridges v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 456 at 457 when they rejected various grounds in the notice of appeal upon which the applicant was relying before that Court. It was submitted that the issues which the applicant was then not allowed to pursue would be pursued in the Full Court of this Court were the order nisi granted. It is difficult to deal with these arguments to the extent they are not covered by the other arguments advanced because the order nisi does not state what those grounds were except as indicated above.
Another group of submissions related to the press publicity which has attended the applicant and his wife and the risk of vigilante attack if he is deported to the United Kingdom. That cannot have any relevance to a challenge to the constitutional validity of ss 200 and 201.
It was indicated that the applicant wanted to reargue the point decided against him by the Full Federal Court, namely, the extent to which it was proper in a decision to deport to take into account offences other than those which attracted the power itself in s 201, that is to say, the more recent of the offences of which the applicant was convicted. Apart from the fact that the time to advance those arguments was on a special leave application to this Court, two of which have been deemed abandoned under the Rules, that point cannot itself justify the relief sought in the order nisi.
A further argument was that the expression “alien”, while it might have had one meaning when the Constitution was drafted, now has a different meaning. It was said that it now means, in effect, enemies of Australia as distinct from people like the applicant who are British subjects who have been absorbed into Australian society. Some arguments of detail were advanced in support of the proposition that the applicant had been absorbed into Australian society. However, to the extent that that is inconsistent with Shaw’s Case, it would be futile to grant an order nisi on that ground.
A further group of arguments related to the age and the bad health of the applicant, the fact that he is no longer any threat to society, the fact that he is remorseful and the fact that, if he were permitted to remain, he would be a valuable role model. Those are arguments that cannot demonstrate any invalidity in ss 200 or 201.
A further argument was that the sentencing judge, Walsh J, in the Supreme Court of Western Australia, was not told of the risk of the applicant’s being deported, in view of the sentences he imposed. That, too, cannot bear on the constitutional validity of the relevant sections.
At this point, the oral arguments advanced on behalf of the applicant began to select particular paragraphs of the Full Federal Court’s judgment and indicate that challenges would be made to them. I shall not set those out. It is only necessary to say that, again, the contentions identified would not result in a conclusion that ss 200 and 201 are invalid.
Finally, it was submitted that an injustice had taken place because the applicant had not received any proper notice of the intention to deport him and had been unrepresented before the Administrative Appeals Tribunal. Those circumstances too do not demonstrate invalidity.
The representative of the applicant concluded his submissions, first, by seeking a further three weeks in which to advance arguments in writing to the effect that Shaw’s Case was wrongly decided, and secondly, to request a short adjournment in order to advance further arguments. In view of the invulnerability of Shaw’s Case to overruling or reconsideration by a Full Court, there is no point in either granting the adjournment or granting a period of time in which to advance further arguments in writing.
I would make the following orders:
1. I order that the application be dismissed with costs;
2. It is certified that this was a proper case for the attendance of counsel in Chambers.
The Court will now adjourn.
AT 5.26 PM THE MATTER WAS CONCLUDED
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