Cruz v Minister for Imkmigration, Local Government and Ethnic Affairs

[1994] HCATrans 65

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney        No S32 of 1992

B e t w e e n -

RICARDO DELA CRUZ

Applicant

and

MINISTER FOR IMMIGRATION,
  LOCAL GOVERNMENT AND ETHNIC
  AFFAIRS

Respondent

For Mention

DEANE J
DAWSON J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 OCTOBER 1994, AT 9.31 AM

Copyright in the High Court of Australia

MR G.R. JAMES, QC:   May it please the Court, in that matter I appear with my learned friend, MR M.B. SMITH for the applicant.  (instructed by Parish Patience)

MR P. ROBERTS:   If Your Honours please, I appear with my learned friend, MR B.J. KNOX for the respondent.  (instructed by the Australian Government Solicitor)

DEANE J:   Yes, Mr James.

MR JAMES:   Your Honour, since the application for special leave there have been substantial changes to the Migration Act, the most recent of which occurred at the beginning of September, that is last month, and what we have done is to provide the Court with a copy of the chronology and in addition a summary of the relevant changes in the Migration Act.

The effect of the provision we are concerned with still continues, but it seems that we now have a transitional visa under the new provisions which the Minister may or may not cancel.  In those circumstances we would seek the matter stand out of the list to enable the Minister to consider whether he will cancel that visa or not, since the practical effect for my client is that if the Minister does not cancel it he has the benefit of the entry permit which otherwise he would have lost on the department’s interpretation of section 20.

TOOHEY J:   Mr James, if that is the position, is there any basis upon which the present application should continue?

MR JAMES:   Yes, Your Honour, because if the Minister does decide to cancel it the very live question of whether he has the power to cancel it is entirely dependent on the very point we take in the special leave application.

TOOHEY J:   It may be dependent upon the point, but the decision then sought to be reviewed will be a different decision, will it not?

MR JAMES:   No, Your Honour.  If I could hand to Your Honours the summary of legislation, it may be of some assistance.  I hand up four copies of that, and four copies of the chronology.   Might I assist Your Honours, since it is a little complex.  In effect section 20 says that if there has been “a statement false or misleading in a material particular”, even if made unintentionally, then not only the relevant document and decision is vitiated but thereafter various subsequent permits.

The amendment to the legislation that took effect on 1 September provides that persons in Australia to whom section 20 applies, and its effect has been perpetuated through the amendments, receive by force of the statute a transitional visa which the Minister may cancel according to some criteria of a fairly general nature set out in the regulations that took effect on 1 September.

If, however, section 20 did not apply to the applicant, he has an absolute right, he having a permanent entry permit to remain.  So that the new system only applies to him if our point in respect of section 20 fails.  If our point is successful, he has an absolute right; if it fails then the Minister may cancel his transitional visa.

TOOHEY J:   I understand that, but would the notice of appeal still be relevant?

MR JAMES:   Yes, Your Honour.

TOOHEY J:   Whatever decision was made by the Minister in regard to a transitional visa?

MR JAMES: The notice of appeal would not be relevant in its practical effect if the Minister determined not to cancel the permanent residency permit that my client presently has.  We are unable to get the Minister to be able to consider that matter before the matter came on before the Court today, and that is why we would seek it stand out of the list.

If the Minister does not cancel there is no problem.  If he does cancel the whole matter remains alive.

TOOHEY J:   Yes, thank you.

DEANE J:   Mr Roberts, what is your approach to this application?

MR ROBERTS:   Your Honours, we have consented to the adjournment application on the basis that given that the matter will be looked at afresh under the new legislation, we thought it was appropriate not to trouble the Court with the special leave application because it may be that the end result is that a decision is made favourable to the applicant and he is permitted to stay.

There could be, as Your Honours have suggested, a possible problem in that if he is unsuccessful then the decision in relation to him may well be a decision that is made under the new legislation, and the subject‑matter of the decision would not be the subject of the present application.  That is a possible problem.  But we have consented to the application for an adjournment.  If Your Honours please.

DEANE J:   Very well.  There will be an order standing the matter out of the list.

AT 9.37 AM THE MATTER WAS ADJOURNED SINE DIE