Callover, Sydney

[2005] HCATrans 681

[2005] HCATrans 681

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  

CALLOVER OF 4 IMMIGRATION

MATTERS

McHUGH ACJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 6 SEPTEMBER 2005, AT 10.10 AM

Copyright in the High Court of Australia

At 10.10 am Plaintiffs S149/2005 v Commonwealth of Australia,  Plaintiffs S151/2005 v Commonwealth of Australia, Plaintiffs S248/2005 v Commonwealth of Australia and Plaintiff S250/2005 v Commonwealth of Australia were called.

PLAINTIFFS S149/2005 appeared in person.

PLAINTIFFS S151/2005 appeared in person.

PLAINTIFFS S248/2005 appeared in person.

PLAINTIFF S250/2005 appeared in person.

MR A. MARKUS:   If your Honour pleases, I appear for the defendants in all of the matters.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Markus.  Yes, do we have an interpreter?

THE INTERPRETER:   Yes, your Honour.

HIS HONOUR:   Are you Maria Escribano?

THE INTERPRETER:   Yes.

HIS HONOUR:   The interpreter might be sworn.

MARIA ESCRIBANO, sworn as interpreter:

HIS HONOUR:   Thank you.  Mr Markus, you move on each of these matters on the summons and together with the affidavit that has been filed by Ms Christy Lee Alexander on 25 August 2005.

MR MARKUS:   Yes, your Honour, I do.

HIS HONOUR:   I have read your submissions, Mr Markus.  At the moment I do not want to hear anything further from you.

MR MARKUS:   Thank you, your Honour.

HIS HONOUR:   Madam Interpreter, would you inform the applicants that the Commonwealth, and in some cases the Minister, are seeking to strike out their proceedings on the basis that they seek remedies and state causes of action which the law of this country does not recognise.  Can they be asked did they understand the nature of the proceedings ‑ ‑ ‑

THE INTERPRETER:   I would like to know if we could read this document?

HIS HONOUR:   She would like to read it or ‑ ‑ ‑

THE INTERPRETER:   She is asking whether she is allowed to read?

HIS HONOUR:   Certainly, yes.

THE INTERPRETER:   So what she wants is to read it in Spanish and that I translate this and ‑ ‑ ‑

HIS HONOUR:   First of all, unfortunately, because of legislation, we cannot refer to the names of the various plaintiffs, but what matter is this woman involved in?

THE INTERPRETER:   Plaintiff S149/2005.

HIS HONOUR:   Right, so this is S149.  Does she want to read the document in Spanish and you to translate it or just read it to me?

THE INTERPRETER:   She wants to read it and then she wants me to translate and I would like to say this is quite a lengthy document and that some of the language used is more like to be translated than interpreted because of the nature of the language used is so ‑ ‑ ‑

HIS HONOUR:   So the document is entirely in Spanish, is it?

THE INTERPRETER:   It is entirely in Spanish.

HIS HONOUR:   There is no point in her speaking to me in Spanish because I will not be able ‑ ‑ ‑

THE INTERPRETER:   No, I know.  I know, but what this is…..to me based in my knowledge of both languages is more like a translation, like requires more a translation than a verbal interpretation.  That is my feeling of it and I just wanted to let you know.  So I will try my best but to me this looks more appropriate to be translated than to be verbally interpreted.

HIS HONOUR:   Would you tell Plaintiff S149 that it is pointless for me to hear her in Spanish because I will not understand what she is saying and it is more appropriate that you read the document to me in English – that she has prepared.  Yes, you read the document to me.

THE INTERPRETER:   Yes.  It starts like this.  In my proceedings, Plaintiff S149/2005 started on 11 April 2005 in this Court.  I am looking to seek like remedies and they are in clause 27.01(f) of the regulation of 2004 of this Court.  This regulation says:

A Writ of Summons shall:

. . . 

(f)       not be served more than 12 months after the date on which it is issued or such further time as the Court of a Justice may, by order, allow.

As I said, this is going to be a bit ‑ ‑ ‑

HIS HONOUR:   Yes, I understand.

THE INTERPRETER:   Firstly, and based on these regulations, I have not served this document to be executed by the Commonwealth of Australia or its lawyers.  The said document has errors which should have been corrected and there has not been time to be corrected.  I have printed five sets of these documents.  I do not remember if the two sets are in the files of this Court and the other three sets – and I do not have the other three sets with me.  Then it says here you should be presented with these three sets.  I do not know where these three sets are.

HIS HONOUR:   Where this?

THE INTERPRETER:   Three sets should be submitted.  It says, between brackets, do not read what is written between brackets but show the judge the three sets.  I do not know where the three sets are.

HIS HONOUR:   No.  Carry on.

THE INTERPRETER:   Therefore, I do not understand how the Government Solicitors in this Court have started this proceeding without having been served officially with the said document.  In my application for an extension of visa before the Department of Immigration I do not remember if I had annexed those sets.  Apparently, that copy that the solicitors have with them.  That copy I serve as evidence to apply for an extension of my visa but I have not mentioned officially the writ of summons.

HIS HONOUR:   Yes.

THE INTERPRETER:   …..starting this case before this Court.  Now, if the honourable Judge allows me to explain the writ of summons in my particular case consists of two clauses, (a) and (b).  One of them is what the document should have.  Nevertheless, there is a mistake because in (a) to be – is to be executed immediately in these proceedings.  In part (b) is so that this case should be processed within 12 months.

It is there where there is the confusion and it was original.  The document was presented only with part (b).  The person or the lady – the head of this Registry, through its secretary, forced me to present the said document in the same format it was given to me.  The girl at the reception told me that the writ of summons should be presented with an identical format to that of the Court and it was in that way that the articles or the parts (a) and (b) of the said documents were included.

For this reason the administrative secretary of this Court informed me that I should present two additional documents, one of them called summons accompanied by a submission that should be presented within 14 days and the other document that is named or called a statement of claim that should be presented within 21 days.  Therefore, I request from the honourable Judge that the starting of this case has no force without the document or if the document writ of summons has not been served officially by the Commonwealth of Australia.

The starting of this case before this Court without this document having been served according to law is causing prejudice to the claims in the name of my son because now that I wanted to correct the document the administrative secretary of the Registry did not want to upset the corresponding documents that corrected the aforementioned mistakes.  If your Honour authorised to upset my new document, amended writ of summons, then this document amended – I had better go back because of the grammar.  It does not sound right.

HIS HONOUR:   Yes.

THE INTERPRETER:   And based on the amended document to start these legal proceedings before the Commonwealth of Australia.  She thinks that we now have to wait to see whether your Honour upsets the request.

HIS HONOUR:   What is the document?  Where is the document that she is talking about?

THE INTERPRETER:   I will give it to you.  This is the document.

HIS HONOUR:   Show it to Mr Markus, please.

THE INTERPRETER:   I can hear that it has been already served.

MR MARKUS:   Your Honour, I have been provided yesterday afternoon with the four documents in each of these matters.  They are unsealed.  They are in the nature of a proposed amended writ of summons, a summons for directions and an affidavit in each of the matters and a list of authorities in each of the matters.  I should say to your Honour that I do not have any difficulty with your Honour having a look at the documents but I will be opposing the filing of the amended writ of summons for reasons I can explain later.

HIS HONOUR:   Yes.  Have a look at the document.

THE INTERPRETER:   I am sorry, but there was a mistake and the wrong documents have been submitted.  These are the right documents.

HIS HONOUR:   These documents do not advance the present matter at all.  They do not affect the matter.  Here, to the present case, they seek to amend the present relief but in no way the material affects these proceedings and there are other problems about it.

THE INTERPRETER:    These are the right documents.  The other documents were the wrong documents.

HIS HONOUR:   Well, it does not matter.  We are dealing with documents that are filed in this Court and those documents do not advance her case in any real way.

THE INTERPRETER:   At the back the gentleman is seeking that you allow him to represent her.

HIS HONOUR:   Where does he fit into the case?  Who is he?

PLAINTIFF S149/2005 (through interpreter):    He is the person who has been helping me with the documents.

HIS HONOUR:   If he is the person who drafted the documents, I am afraid he has a very poor understanding of legal matters.  Carry on with what you are doing.  How long is this document that is being read?  The document that you are reading from, how ‑ ‑ ‑

THE INTERPRETER:   How?

HIS HONOUR:   Yes.

THE INTERPRETER:   Well, I am just reading what is written here.

HIS HONOUR:   Yes, I understand that.

THE INTERPRETER:   Well, she is saying whether the person who had been helping her could talk to you and maybe could be able to explain it better to you.

HIS HONOUR:   In substitution for that document – well, let him come forward.  Does he speak English?

PLAINTIFF S149/2005 (through interpreter):   Sure, yes.

HIS HONOUR:   Let him come forward.

MR REYES‑GONZALEZ: Your Honour, my name is Ramon Reyes‑Gonzalez from L’Amer‑Aussies MRF. This is a foundation who have been, or trying to assist people who are seeking refugee status in this country. Apparently there is, well, some bar in order to come over here but I am working section 280 of the Migration Act 1958. The only explanation I can give to you, your Honour, is that these people have been forced to buy a ticket to leave this country and because of that, well, I – because of that ‑ ‑ ‑

HIS HONOUR:   I am sorry, I understand the background of it, but the point is that statements of claims have been filed in this Court – writs of summons have been filed seeking relief.  The Commonwealth says it discloses no cause of action whatever and it is an abuse of the process of the Court and the documents ought to be struck out.

What we are here today to determine is whether or not the Commonwealth claim is correct. We have heard reference to what I thought that Plaintiff S149 referred to as clause 37.01. I do not understand what that reference is but, in any event, it is beside the point. The question here is whether or not there is an arguable claim that section 198 of the Migration Act is invalid or whether it ought to be read down in some way.  Now, that is the basis of the claim for relief in this Court.  Unless you can make that good, the proceedings will have to be struck out.

MR REYES‑GONZALEZ:   As I say before, I am not a lawyer and, maybe you are right, I have a poor knowledge about the proceedings or the way that you treat matter over here, okay.  I agree with you and I totally agree with him that this original document presented to this Court was not the right document or work it out in the right way.  I agree with that, okay.

HIS HONOUR:   Yes.

MR REYES‑GONZALEZ:   But the actual point over here that is to be taken into consideration by your Honour, these people in a hurry come to me.  In a hurry I prepare the documents.  In a hurry I try to understand what is going on and what I can do for them, okay?  I am not a lawyer, okay?

HIS HONOUR:   I understand that, but the point is this is the highest court in this country and its time cannot be taken up with proceedings that are described in legal terms as an abuse of the process that do not disclose a cause of action, and that is what today’s proceedings are about.  If the plaintiffs have an arguable cause of action, then the case can proceed in this Court, but at the moment – and I have looked at the documents and it is impossible to see any arguable case, and that includes the documents that were just handed up a few moments ago.  They do not add anything of substance to the matter.

MR REYES‑GONZALEZ:   Yes, your Honour, with all due respect, we are seeking advice or we are seeking help from the New South Wales Law Society.  The problem is that in the way that they acted that this not appropriate as well and you, with all due respect, must take into consideration here…..here and presented the notice of…..without being served a document.  Then I do not understand or the applicant do not understand why this proceeding has come up ‑ ‑ ‑

HIS HONOUR:   Let me tell you why it came up.  Under the Rules when you file a statement of claim, start proceedings in the Court, you have to put on a summons for directions.  The summons for directions came here a couple of weeks ago and in the summons of directions the Commonwealth and the Minister in the other matters – in two of the matters sought to strike out the statement of claim.  I said proper procedure has to be observed.  You had to be served with a summons seeking to do that.  That has been done and that is what we are here today for.  Now, that is what the case is about.

MR REYES‑GONZALEZ:   Well, unfortunately, without the legal advice for these people we cannot proceed because apparently you are not satisfied that this document relied on by the applicant ‑ ‑ ‑

HIS HONOUR:   Unfortunately, that appears to be ‑ ‑ ‑

MR REYES‑GONZALEZ:   I will ask you, with all due respect, as a citizen of this country, representing people, not them, but children, that you have to take into consideration there are claims of our children over here, children that will suffer the consequence if they go back to Colombia.  Then…..the best interests of justice I would request you – a formal request by a court, by people from this country to ask you for an extension of time in order to seek the right legal advice through the New South Wales Law Society.

We have a letter form them saying that the time that have been given to them is not enough in order to give any assistance.  I say that the Court – the way that the Court is taking in this matter is practically something unfair.

HIS HONOUR:   Well, the Court has an application – an application has been started in this Court and the defendants have moved to strike it out on the ground that it is an abuse of process.  That is what I have to deal with.  From what I have seen, there is nothing that any lawyer could do to assist this case.  You just have not got a case.  The sooner that is faced up to, the better.  I mean, you can go to the Minister and ask on compassionate grounds that the Minister exercise his discretion.  That is different from what I have to do.  I have to deal with the law.

You have started an action in this Court seeking orders against the Minister and against the Commonwealth and at the moment there does not seem to be any substance whatever in those applications.  It is pointless giving an adjournment because from what is before me no lawyer can help you.

MR REYES‑GONZALEZ:   Your Honour, these people are not given the opportunity to go to see a lawyer.  The New South Wales Law Society is saying that – look, this is the letter that we got from them, okay.  Could you see it?  Could you look at it?

HIS HONOUR:   Yes, hand it up.  What you are told here is that the matters were referred to the legal assistance referral scheme for merit opinions which were not favourable to the clients.

MR REYES‑GONZALEZ:   Yes.

HIS HONOUR:   Then they ask you to forward further documents.  The business of this Court just cannot be delayed by applications – you have made an application.  It has been rejected.  If the next one is rejected, there will no doubt be some more documents put forward.  You have to face reality.  Your clients – as unpalatable as it is, you have to get a favourable decision from the Minister or – at the moment there does not seem to me to be any arguable legal case that you can run.

MR REYES‑GONZALEZ:   Your Honour, again, I would request you ‑ ‑ ‑

HIS HONOUR:   The application is refused.

MR REYES‑GONZALEZ:   ‑ ‑ ‑ I would request an extension ‑ ‑ ‑

HIS HONOUR:   I am not granting an adjournment for you to get further legal advice.  There is nothing before me which would suggest that it would be other than a pointless exercise.  Thank you very much.

Madam Interpreter, will you continue reading the document?

THE INTERPRETER:   Well, as your Honour is not accepting my new document amended then to start this process that I am based on the documents, plaintiff’s submission in reply, presented on 24 August 2005 before this Court ‑ ‑ ‑

HIS HONOUR:   I have read those.  I have read those submissions.

THE INTERPRETER:    So in this case I present claims on behalf of my son, who is not one year old, and the said claim – I am submitting the same claim under the United States Convention called Convention for Children’s Rights and Convention on Civil and Political Rights.  In addition, I strengthen this claim citing the following cases, and then there is a list, Minister for Immigration and Ethnic Affairs v Teoh (1995) ‑ ‑ ‑

HIS HONOUR: Yes, 183 CLR 273.

THE INTERPRETER:    Yes, and then the second one is Davey Browne v Minister for Immigration and Multicultural Affairs (1998) 566 FCA (29 May 1998); Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19, 13 April 2000; Soondur v Minister for Immigration and Multicultural Affairs [2002] FCAFC 324, 25 October 2002; Minister for Immigration and Multicultural and Indigenous Affairs v NASS [2003] FCA 477, 20 May 2003; Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20, 29 April 2004.

Besides, I am also submitting the following document: United Nations High Commissioner for Refugees, Geneva, September 2002, International protection considerations regarding Colombia asylum‑seekers and refugees. My legal points are the following grounds. The plaintiff submits that a person who is aggrieved by a decision has a standing for judicial review under section 5(1)(a), (b), (d), (e), (h) and (j), (2)(a), (b) and (f), (3)(a) and (b) and 6(1)(d), (f), (h) and (j) of the Commonwealth Administrative Decisions (Judicial Review) Act 1977. The plaintiff relies on the following grounds:

(a)      that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)      that procedures that were required by law to be observed in connection with the making of the decision were not observed;

. . . 

(d)      that the decision was not authorised by the enactment in pursuance of which it was purported to be made;

(e)      that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

. . . 

(h)      that there was no evidence or other material to justify the making of the decision;

. . . 

(j)       that the decision was otherwise contrary to law.

In reference to paragraph 1(e), the plaintiff submits that the decision involves:

(a)      taking an irrelevant consideration into account in the exercise of a power;

(b)      failing to take a relevant consideration into account in the exercise of a power;

. . . 

(f)       an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

In reference to paragraph (1)(h), the plaintiff submits that:

(a)      the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or –

paragraph 6. All the legal points referred to are in relation to the application of section 48A of the law of immigration. The reason for which the honourable Minister of Immigration has rejected on several occasions my request on behalf of my daughters – there was a mistake on behalf of my son. My request for solutions are, relief sought, declaratory relief, a declaration being a matter that involves its interpretation concerning conflicts arising between an administrative decision and the rights of an individual non‑citizen for judicial review by invoking international treaties named the International Covenant on Civil and Political Rights, the ICCPR, and the Convention on the Rights of the Child.

Therefore decisions made by the second respondent detaining or removing the plaintiffs to Colombia are invalid or inoperative to the extent of their inconsistency against the statute provisions, decisions that involved breaches to the rules of international treaties by the Commonwealth of Australia.  On the hearing of an application by the plaintiff for orders as follow:  interlocutory injunction order to the second respondent ‑ ‑ ‑

HIS HONOUR:   I have those orders.  They are set out in the various documents.

THE INTERPRETER:   Finally, the points and claims presented before your Honour are the base of my case.

HIS HONOUR:   Yes, thank you.  Now, that is the submissions that she wants to put against the Commonwealth?

PLAINTIFF S149/2005 (through interpreter):    Yes.

HIS HONOUR:   What about in the other matters, in S151 and S248 and S250?  Are there any submissions in those matters?

THE INTERPRETER:   Yes.

HIS HONOUR:   Are they the same?

THE INTERPRETER:   Similar.  I think the beginning is the same.

HIS HONOUR:   If there is any difference.

THE INTERPRETER:   She said they are similar but they are different claims.  Regarding the writ of summons, of what I can read is the same.  Then what I can see is different is that in this in this case, S151 says the first mistake is in page 2/3, paragraph (a) and paragraph under the heading “Relief” 1 and 2.

HIS HONOUR:   Yes.

THE INTERPRETER:   But then it mentions again that I printed five sets of this document and then it appears to be the same regarding the two sets that are filed in this Court and the other three sets which I have with me.

HIS HONOUR:   Yes.

THE INTERPRETER:   Then the other thing that refers to the application for an extension of visa before the Department of Immigration is the same like the previous one.

HIS HONOUR:   Yes.

THE INTERPRETER:   I think probably this is similar too.  Now, if the honourable Judge allows me to explain the writ of summons in my particular case, consists of two clauses, (a) and (b).  One of them is what the document should have ‑ ‑ ‑

HIS HONOUR:   That is the same as in the previous ‑ ‑ ‑

THE INTERPRETER:   Yes, is the same and then, yes, I think the other one is the same too and it is the same when it refers to the lady at the reception and – yes, it is the same.  Yes.

HIS HONOUR:   That was in matter – which matter was that?

THE INTERPRETER:   S151.

HIS HONOUR:   S151?

THE INTERPRETER:   Yes.

HIS HONOUR:   Now, what about S248 and S250?

THE INTERPRETER:   I just want to finish seeing it, if you do not mind?

HIS HONOUR:   Yes.

THE INTERPRETER:   Yes, I think that the thing is that in this case instead of one child the claims are presented on behalf of two daughters ‑ ‑ ‑

HIS HONOUR:   Yes. I appreciate that.  There are five plaintiffs in one action, four in another and three in another and one plaintiff in another.

THE INTERPRETER:   Yes, and is based on the same grounds.

HIS HONOUR:   Yes.  Is there anything in S248 – any further submissions to be put in S248?

THE INTERPRETER:   I think that the name of the daughter on which the claim is on behalf of ‑ ‑ ‑

HIS HONOUR:   Yes.

THE INTERPRETER:   ‑ ‑ ‑ yes, it changes, but I think that perhaps the cases are different too – not all of them, maybe one only.

HIS HONOUR:   And S250?

THE INTERPRETER:   It is only at the beginning is the date it was started, which is on 27 May 2005. Perhaps the only thing that changes here is where it says all the legal points mentionable are regarding the application of section 48A of the immigration law by which the honourable Minister of Immigration rejected my request under section 417 of the immigration law and you have this, where it says: On the hearing of an application by the plaintiff for orders as follows: interlocutory injunction order to the second respondent to prohibiting, detaining or removing…..while pending a communication made before the United Nations Human Rights Committee raising breaches to human rights by the Commonwealth of Australia if removed to Colombia.

HIS HONOUR:   Yes.

THE INTERPRETER:   An order to the second respondent and redirected to the Refugee Review Tribunal to set aside a decision made on 19/8/2002 and remitted for further consideration, if the United Nations Human Rights Commission determines that the plaintiff’s life is in danger if removed to Colombia.  I think that is different.

HIS HONOUR:   Yes.

THE INTERPRETER:   I think that is the end of the – finally, the points and claims presented before your Honour are the basis of my case, yes ‑ ‑ ‑

HIS HONOUR:   Yes.  Thank you, Madam Interpreter.  They are the submissions on behalf of the various plaintiffs.  Mr Markus, I do not want to hear from you unless there is something that you want ‑ ‑ ‑

MR MARKUS:   Thank you, your Honour.  I do not wish to answer.

HIS HONOUR:   Yes, very well.  Madam Interpreter, I will now give judgment in these matters.  I am sorry, is there something else you want to add?

THE INTERPRETER:   I think that also perhaps there is a difference here in another case, in S151, where it says: On the hearing of an application by the plaintiff for orders as follows: interlocutory injunction order to the second respondent to prohibiting detaining or removing the plaintiffs while pending a declaratory judgment before the High Court of Australia. This order is on the basis that section 48A of the Migration Act 1958 does not preclude a child to claim refugee status on their own rights. Protection visa applications could not be made by the fourth and fifth plaintiff girls…..due to a barrier of section 48A of the Migration Act 1958, barrier contrary to the rules of international treaties named International Covenant on Civil and Political Rights and the Convention of the Rights of the Child.

An order to the second respondent and redirected to the Minister’s delegate to compel performance of his public duty under section 499 of the Migration Act 1958. Such order is on the basis that the best interests of the child is a relevant consideration under the provision of section 36(2) and…..by section 499 of the Migration Act 1958. The execution of such an administrative decision may cause a family breakdown and it is likely will affect the welfare of two daughters, the non‑citizen children whose protection visa application for refugee status is still valid under the provision of section 36(2) and reinforced by section 499 of the Migration Act 1958. Nevertheless, they are barred under section 48A of the same Act, according to the opinion of the Minister’s delegate, for example, the same experience as in the case Plaintiff S248/2005. Such administrative decision is causing family breakdown and affecting the welfare of my two daughters. Moreover, decisions made by the Minister’s delegate on behalf of the second respondent were based on irrelevant consideration because the first, second and third plaintiffs are not claiming refugee status but may be included as family member.

An order to the second respondent and redirected to the Refugee Review Tribunal to quash decisions made on 13 May 1999 and 26 February 2001, an order on the basis that the best interests of my two daughters is the relevant consideration and the provision of section 36(2) and reinforced by section 499 of the Migration Act 1958.

HIS HONOUR:   Yes, thank you.  I will now give judgment in these matters.

I have before me four sets of proceedings.  In matter S151 of 2005, five plaintiffs are involved; in matter S149 of 2005, four plaintiffs are involved; in matter S248 of 2005, three plaintiffs are involved; and in matter S250 of 2005 one plaintiff is involved.  In each of these proceedings writs of summons were filed in this Court.  In matters S151 of 2005 and S149 of 2005 the writs of summons sought relief.  In the other two matters, S248 of 2005 and S250 of 2005, the writ of summons did not seek relief but the statement of claim filed in those matters does seek relief.  There is a very large identity of claims and causes of action in each matter.  It would be not inaccurate to say that, apart from names, the substance of the applications are the same.

The matters came before me on 24 August this year on a summons for directions.  The Commonwealth in the matters in which it was a defendant and the Minister for Immigration and Multicultural and Indigenous Affairs, who was a defendant in S248 of 2005 and S250 of 2005, indicated on the summons for directions that they would seek to strike out the proceedings on the ground that they were an abuse of process.  No summons had been filed by the defendants in support of that relief.  I directed that summonses be filed and served on the plaintiffs and, as a result, the matter comes before me today. 

The nature of the claims can perhaps best be understood by taking matters S149 of 2005 and S250 of 2005.  In matter S149 of 2005, the writ of summons sought the following relief:

1.        An Interlocutory Injunction order to direct the Minister for Immigration and Multicultural and Indigenous Affairs and the NSW Fraud Control and Compliance of the Department of Immigration and Multicultural Affairs to prohibiting removing the Plaintiffs and her family members from Australia until their ‘Communication’ be determined by the United Nations Human Rights Committee.

2.        If the Communication before the United Nations Human Rights Committee succeeds, the Plaintiff seeks A FINAL MANDATORY INJUNCTION ORDER to direct the Minister for Immigration and Multicultural and Indigenous Affairs and the NSW Fraud Control and Compliance of the Department of Immigration and Indigenous Affairs indefinitely prohibiting removing the Plaintiff and her family members.

The statement of claim filed in matter S149 also sought two declarations:

e.1      A DECLARATION to the Defendant –

that is the Commonwealth of Australia –

and re‑directed to the Minister for Immigration and Multicultural and Indigenous Affairs and the NSW Fraud Control and Compliance of the Department of Immigration and Multicultural and Indigenous Affairs that:

‘Decisions made by the Minister for Immigration and Multicultural and Indigenous Affairs or the NSW Fraud Control and Compliance of the Department of Immigration and Multicultural and Indigenous Affairs to removing family members of non‑citizens from Australia under any section of the Migration Act 1958 are invalid and inoperative to the extent of their inconsistency with the constitutional provision of Article 109 of the Commonwealth of Australia Constitution whilst pending an application for review before the Refugee Review Tribunal by an applicant pursuant to the rules of International Treaties binding the Commonwealth of Australia.’

e.2      A declaration to the Defendant and re-directed to the Minister for Immigration and Multicultural and Indigenous Affairs that all or any actions taken by the NSW Fraud Control and Compliance of the Department of Immigration and Multicultural and Indigenous Affairs to enforce an adverse decision against the Plaintiffs given on Bridging Visa ‘E’ – Subclass 050 dated 5 April 2005 and on 12 April 2005 or any other further dates are void and of no effect pending due process by this Honourable Court of matter S149 of 2005 and her husband application for review by the Refugee Review Tribunal.

In matter S250 of 2005, as in matter S248 of 2005, the plaintiff did not seek relief in the writ of summons but his statement of claim does and in the summons for directions and submission outline the plaintiff sought orders as in the statement of claim.  The statement of claim seeks relief in the following terms:

e.1.     All orders as stated in the ‘Summons and Submission Outline’.

e.2      A DECLARATION to the Defendant and re-directed to the Minister for Immigration and Multicultural and Indigenous Affairs and the NSW Fraud Control and Compliance of the Department of Immigration and Multicultural and Indigenous Affairs that:

‘Decisions made by the Minister for Immigration and Multicultural and Indigenous Affairs or the NSW Compliance Unit of the Department of Immigration and Multicultural and Indigenous Affairs to detaining and removing the Plaintiff from Australia under any section of the Migration Act 1958 are invalid and inoperative to the extent of their inconsistency with the constitutional provision of Article 109 of the Commonwealth of Australia Constitution whilst pending an application for relief of Judicial review before the High Court of Australia pursuant to the rules of International Treaties binding the Commonwealth of Australia.’

e.2      A declaration to the Defendant and re-directed to the Minister for Immigration and Multicultural and Indigenous Affairs that all or any actions taken by the NSW Compliance Unit of the Department of Immigration and Multicultural and Indigenous Affairs to enforce an adverse decision against the Plaintiff given on 20 May 2005 or any other further dates are void and of no effect pending due process by this Honourable Court of matter S250 of 2005.

e.3      An Interlocutory Injunction order to the Defendant and re‑directed to the Minister for Immigration and Multicultural and Indigenous Affairs and the NSW Compliance Unit of the Department of Immigration and Multicultural and Indigenous Affairs to prohibiting detaining and removing the Plaintiff from Australia pending his application for relief of Judicial Review be determined by the High Court.

e.4      A FINAL MANDATORY INJUNCTION ORDER to the Defendant and re‑directed to the Minister for Immigration and Multicultural and Indigenous Affairs and the NSW Compliance Unit of the Department of Immigration and Multicultural and Indigenous Affairs indefinitely prohibiting detaining and removing the Plaintiff if his application succeeds before the Federal or the High Court of Australia.

e.5      Such further or other order as the Court may sees fit.

Almost every ground that has ever been relied on to invalidate a decision in a case concerning refugees has been invoked; for example, claims that breaches of the rules of natural justice occurred in connection with the making of the decision, claims that procedures that were required by law to be observed were not observed, claims the decision was not authorised by the enactment in pursuance of which it was purported to be made, claims that the making of the decision was an improper exercise of power, claims that there was no other evidence or material to justify the making of the decision, and claims that the decision was otherwise contrary to law.

The writs of summons and the statements of claim and the written submissions of the plaintiffs have been drawn by a person who, obviously enough, has no understanding of Australian constitutional law or the principles governing the construction of statutes or of the proper way to plead a statement of claim.  The gentleman responsible for that appeared here today and I allowed him to make submissions for a short period of time.  He candidly admitted that the documents were bad and he said that he was not a lawyer but he was doing his best to help the various plaintiffs in their endeavour to invalidate decisions requiring them to leave the country. 

Perhaps the clearest example of the author’s lack of legal knowledge is the contention that appears throughout the statements of claim that decisions concerning the removal of a plaintiff child and parents made under the Migration Act are invalid and inoperative to the extent of their inconsistency with what is mistakenly called Article 109 of the Constitution. Section 109 of the Constitution is concerned with conflicts between federal and State laws. It is not concerned with decisions made under federal laws which do not conflict with State laws.

However, despite the infelicities in the pleading, it seems clear enough that the plaintiffs’ principal argument is that section 198 of the Migration Act 1958 is invalid or must be read down to comply with international treaties, including the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. These claims are, I am afraid, misconceived.

First, it is well established that the legislative power of the Commonwealth is not affected by principles of international law. Insofar as the plaintiffs’ claim that international law invalidates section 198 of the Migration Act, the claim is without substance.

Second, insofar as the decision of this Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 requires federal officers to take account of international treaties, including the Convention on the Rights of the Child, that decision would seem to have no application to section 198 of the Migration Act, given its mandatory terms.  But, in any event, both in respect of that section and in respect of other sections under which decisions have been made, there is nothing in the writs of summons or the statements of claim that suggest that the duties imposed on ministers or federal officers are invalidated by failure to advert to international treaties such as the Convention on the Rights of the Child.

Insofar as the plaintiffs make allegations that the decisions are bad on administrative law grounds, the grounds are mere assertions; nothing in the statements of claim gives any support to them. 

Over and above the considerations to which I have referred, none of the relief sought in the statements of claim or the writs of summons could be given by this Court, having regard to the form in which it is sought.  On their face, the statements of claim and the writs of summons are bad.  They disclose no cause of action and in a technical sense they are an abuse of process and must be struck out.

An application was made for an adjournment on behalf of the plaintiffs so that they could obtain legal assistance from the Law Society of New South Wales.  A document was handed up to me which showed that the Law Society had considered the application.  It held that the merits of the case did not justify the grant of legal aid.  As a result, the applicants have submitted further documents to the Law Society and they sought an adjournment to get a decision concerning legal aid for the proceedings.

Given what I have seen of the particular allegations of the plaintiffs and the history of the matters, it would be very surprising indeed if the Law Society granted relief in respect of these matters, except perhaps to see if the matter should be investigated further.  On their face, there is nothing in any of the documents before me that would suggest that resort to legal advice would advance the plaintiffs’ case in any shape or form.

The plaintiffs also sought to file in Court a document which sought to amend the statements of claim.  The documents seeking the amendment were handed up.  They added nothing of substance to the case.  They were subject to the same deficiencies as the present documentation.  Regrettably, from the plaintiffs’ point of view there is no remedy in this Court, at least so far as appears from anything that has been put before me.  There is nothing in respect of their claims which could possibly support relief in this Court.

Accordingly, the writs of summons and the statements of claim do not disclose any cause of action, and the only order is that they must be struck out. 

I suppose you seek an order for costs, do you, Mr Markus?

MR MARKUS:   Yes, your Honour.

HIS HONOUR:   Yes, they must be struck out with costs.

I direct the Court Reporting Branch not to use the names of any parties insofar as they may have been referred to this morning in the transcript.

I considered whether or not I should give the plaintiffs leave to amend but on the material before me it seems a pointless exercise.  Accordingly, the order that I make is that the writs of summons and the statements of claim be struck out and the plaintiffs pay the costs of the action.

MR MARKUS:   If the Court pleases.

HIS HONOUR:   Adjourn the Court.

AT 11.21 AM THE MATTERS WERE CONCLUDED