Cujba - Ex parte MIMA

[2001] HCATrans 70

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S38 of 2001

In the matter of -

An application for Writs of Prohibition and Certiorari against the MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

LORETTA BAXTER

Second Respondent

Ex parte -

NICOLAE CUJBA

Applicant

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 22 MARCH 2001, AT 9.32 AM

Copyright in the High Court of Australia

MR R.W. KILLALEA:   I appear for the applicant, your Honour.  (instructed by Low & Associates)

MR S.B. LLOYD:   I appear for the respondents, your Honour.  (instructed by Sparke Helmore)

HIS HONOUR:   Yes, Mr Lloyd, for the respondent?

MR LLOYD:   For the first and second respondent.

HIS HONOUR:   First and second respondent, yes.  Now, Mr Killalea have I the draft order nisi in the right form?

MR KILLALEA:   There is an amended draft order nisi which I seek leave to present to your Honour this morning.  My friends have a copy this morning and it takes up some of the points raised by my friend in his submissions.

HIS HONOUR:   That can be filed in Court.  Just sit down for a minute, Mr Killalea.  Putting aside other considerations for a minute, there is no reason why the Federal Court cannot deal with this, is there?

MR KILLALEA:   Difficult to locate it within one of the grounds of review under 476(1)(a), your Honour.  That is the difficulty I have.  Arguably one could say that they have not followed a procedure, that is the ‑ ‑ ‑

HIS HONOUR:   You said there is a constructive failure to exercise jurisdiction.

MR KILLALEA:   Yes.

HIS HONOUR:   Why does that not fall within 476?  What do you say about that, Mr Lloyd?  I know you say there is nothing worth remitting, but putting aside that question.

MR LLOYD:   I have sought instructions on this precise question this morning in light of the amended matter.  The instructions have not come through.  I think I would have to say I could anticipate that the Minister may take the position that as currently pleaded this ground does not fall within one of the grounds in Part 8.

HIS HONOUR:   Really.  Why?

MR LLOYD:   As I understand it, in Yusuf and Israelian, which I was not involved in, the Minister argued that the grounds in section 476(1) were relatively to be narrowly confined and that, in particular, section 476(1)(b), which deals with the jurisdiction, should not be construed in accordance with the broader common law jurisdictional error principles but a narrower principle.  I suspect the Minister would say it does not fall into ‑ ‑ ‑

HIS HONOUR:   Why does the Minister encourage matters to stay in this Court when the Minister himself has a number of appeals in which he is the appellant in which he is awaiting for judgment, the decision in which can only be delayed if he takes points like this?  Those instructing you should fasten their minds upon this very practical matter.

MR LLOYD:   I am not instructed to oppose the remitter.  I simply would say that the Minister would not want to forego the possibility of arguing that Part 8 does not extend to this ground.  I mean, it may well be that my friend will ‑ ‑ ‑

HIS HONOUR:   Well, I will adjourn the matter until you get instructions.

MR LLOYD:   May it please the Court.

HIS HONOUR:   Now, is your client persisting with this submission about non‑delegation?

MR KILLALEA:   No, that has been withdrawn in the order nisi.  There is just one ground left in the application, your Honour.

HIS HONOUR:   Why has there been a failure to exercise the jurisdiction under 131?

MR KILLALEA:   An abject failure to take into account relevant considerations.  I take your Honour to the - just focus on the submissions beginning at ‑ ‑ ‑

HIS HONOUR:   How does that go to jurisdiction?

MR KILLALEA:   Because what is in issue is a jurisdictional fact, and that is the Minister’s satisfaction that there are no other reasons, that is, other than the Sydney Olympic Games issue, as to why the cancellation cannot be revoked, and that is the provision under section 131(1)(b).  The determination of the Minister’s satisfaction that there are no such other reasons is a matter of jurisdictional fact and in the absence of that jurisdictional fact being lawfully satisfied, then there is no exercise of jurisdiction.  I draw in particular upon your Honour’s comments in Eshetu v The Minister on that point.

HIS HONOUR:   Just sit down for a minute, Mr Killalea.  Where do I find the cancellation decision of 6 March?

MR KILLALEA:   I think your Honour will find it in the affidavit of Charles Whiting.  The cancellation decision is at folio 41.  If I can just take your Honour - there is a chain of correspondence.

HIS HONOUR:   Yes, I have it.

MR KILLALEA:   Your Honour will see that is a notice of cancellation dated 1 March.  That is a cancellation from the Embassy in Moscow.

HIS HONOUR:   What is your client’s answer to this practical point about all this:  he was given the visa on a particular basis to do with the Olympic Games and that came not to pass?  I mean, you have to get down to the realities of all of this.

MR KILLALEA:   Yes, quite.

HIS HONOUR:   Why are you engaging the High Court of Australia in that sort of debate at the moment?  What is the reality of it?

MR KILLALEA:   Because you need only look at the visa that he was granted, your Honour, and your Honour will find that in the exhibit to Ms Gallagher’s affidavit at 27 of the bound volume.

HIS HONOUR:   Yes.

MR KILLALEA:   You will find that the visa that he was given was a visa to arrive in Australia ‑ ‑ ‑

HIS HONOUR:   Where do I ‑ ‑ ‑

MR KILLALEA:   Sorry, at 27.

HIS HONOUR:   At 27 of the bound volume?

MR KILLALEA:   Yes, 27 of the bound volume.

HIS HONOUR:   It does not seem to be the right document.

MR KILLALEA:   It should just be a ‑ ‑ ‑

HIS HONOUR:   I see.  It has two paginations; that is the problem.

MR KILLALEA:   Sorry, on the bottom right‑hand corner.

HIS HONOUR:   Yes, I see.

MR KILLALEA:   I take your Honour to the conditions upon which the visa is to be exercised, “MUST NOT ARRIVE AFTER 02NOV00” and valid ‑ ‑ ‑

HIS HONOUR:  

PERMITTED TO REMAIN IN AUSTRALIA FOR 03 MONTHS FROM DATE OF ARRIVAL.

MR KILLALEA:   Yes.

HIS HONOUR:   How long has he been here?

MR KILLALEA:   He has been here since 13 October.  Yes, but the Minister has the power, if he revokes cancellation of the visa, to then ‑ ‑ ‑

HIS HONOUR:   If all had gone according to Hoyle, as you say, your client would have gone by now.

MR KILLALEA:   Yes.  He had a return ticket on I think it is the 18th.

HIS HONOUR:   Why does he now seek to stay?

MR KILLALEA:   Because they came here for a particular purpose ‑ ‑ ‑

HIS HONOUR:   What purpose?

MR KILLALEA:   The purpose of visiting Australia as tourists to take in ‑ ‑ ‑

HIS HONOUR:   That is not what the material suggests.  They came here for a particular purpose to do with the Olympic Games.

MR KILLALEA:   Yes.  Well, clearly when he arrived on 13 October he was not here to attend the Olympic Games because they had completed as or about 1 October, but what the Minister ‑ ‑ ‑

HIS HONOUR:   Exactly.  In any event, he came here for three months.  The three months has passed.

MR KILLALEA:   Yes, and he has not yet visited Australia, your Honour.

HIS HONOUR:   Well, really.

MR KILLALEA:   Yes.  The critical concern for my client is this, your Honour, that ‑ ‑ ‑

HIS HONOUR:   The end result, if he gets what you say he should get, what would he get?

MR KILLALEA:   He will get whatever the Minister gives him, but what he has asked for is a period of perhaps three weeks to stay in Australia, together with his cousin, who is also incarcerated at Villawood Detention Centre, to see Australia, which was, if you like, the ancillary purpose of coming here and clearly the purpose of coming here on 13 October - and that is set out in his affidavit and in the corroborative affidavit of Oleg Cujba.  They came to see, as they say, the kangaroos, the Aussie beaches, the Sydney Opera House, the Harbour Bridge.

Now, is the Minister seriously saying that if someone said they were coming for the Olympics and they arrived for them and then they did not attend, is the Minister saying that they have come here invalidly?  I think not.  Perhaps if I can ‑ ‑ ‑

HIS HONOUR:   Anyhow, what decision do you say should now be made in your favour?  You want a mandamus.  What would the result be?

MR KILLALEA:   That is in the Minister’s hands but ‑ ‑ ‑

HIS HONOUR:   Look, what do you say the Minister should do?

MR KILLALEA:   Should extend the visa to allow the applicant to stay in this - to be released from detention and stay in this country for three weeks and then return to Moldova.

HIS HONOUR:   I see.  Is the air ticket still open?

MR KILLALEA:   No.  If I might just answer your Honour’s question.  There is a more serious point and that is this, and the point that the applicant wishes to have resolved, and the reason why he is pressing this matter is that his concern is that when he goes back to Moldova and thereafter travels, for example, to the United States of America and is required to fill in an application, “Have you ever been refused entry to any other country?”, at the moment he has to say “Yes”.

HIS HONOUR:   Well, he will still have to say “Yes”.

MR KILLALEA:   Well, at least if the cancellation is annulled he has a proper answer to that, but his concern is that in saying “Yes” and the question is asked, “And why was your visa cancelled?”, and the answer is, in part, according to the material here, because there was a suspicion that he had come here to apply here for a protection visa, that he is a refugee.  Well, he is not.  He has explained that to Loretta Baxter and at Sydney Airport on 13 October, after she had asked him for an explanation as to why - after she asked him to prove to her that he was a tourist, he told here, “I have come here for all of these reasons”, she said to him, “Have you got your bathers?”  He had to pull his bathers out to demonstrate to the Commonwealth Government officer that he was here as a tourist and that officer, Loretta Baxter, then said, “I believe you.  I believe you are a tourist.”  And now she says, “There is no reason to revoke the cancellation of your visa.”

HIS HONOUR:   Has a decision been made under 131?

MR KILLALEA:   Yes.  Your Honour will see that at 44 ‑ ‑ ‑

HIS HONOUR:   Of - - -?

MR KILLALEA:   Charles Whiting’s affidavit.  There are two 44s.  Your Honour will find the first 44 is dated 4 March.  If I could just take your Honour through a couple of pages. 

HIS HONOUR:   I am looking at paginations up in the top corner.

MR KILLALEA:   Top right‑hand corner, yes, sorry, your Honour.

HIS HONOUR:   My bundle stops at page 38 - 35 actually.

MR KILLALEA:   I might pass a copy to your Honour.

HIS HONOUR:   Well, what you seek to prohibit is not properly expressed, is it?  You would seek to prohibit the taking of any steps consequent upon the decision of 6 March.

MR KILLALEA:   No, we say the decision of 6 March ‑ ‑ ‑

HIS HONOUR:   Prohibition is all about decision.  What do you seek to prohibit?

MR KILLALEA:   We seek to prohibit the Minister removing the applicant ‑ ‑ ‑

HIS HONOUR:   There is no threat at the moment.

MR KILLALEA:   Sorry?

HIS HONOUR:   You do not get prohibition to stop the Minister removing somebody.  You get an injunction.  You might get prohibition preventing the Minister taking steps under the Act consequent upon a particular decision on the basis that the decision is ineffective in law.  What is order 3 all about?

MR KILLALEA:   Just simply asking that when this matter goes back for determination that it does not go back before the same person who determined it before, Loretta Baxter, according to the affidavit evidence, being a person who formed the view on 13 October that the applicant was a tourist.

HIS HONOUR:   No, that would not be an injunction, would it?  Now just tell me in what respect the decision‑maker made some reviewable error in this decision of 6 March which appears at page 44 of the bundle of materials?

MR KILLALEA:   The indications are in that letter that in the first instance, on the face of that letter, the decision‑maker has made a decision about whether or not the visa should be cancelled, and I take your Honour to the closing comments on the third paragraph, whereas the decision that the decision‑maker ‑ ‑ ‑

HIS HONOUR:   Yes.  Well, Mr Lloyd makes a point about that in his written submissions.

MR KILLALEA:   He does and, if I move past that and come down to the particulars, then one has to ask the question, “Did the decision‑maker take into account relevant considerations?”  And I submit when one looks to ‑ ‑ ‑

HIS HONOUR:   What are the relevant considerations?

MR KILLALEA:   The relevant considerations were the matters raised by the applicant, and that is at folio 42 of Charles Whiting’s affidavit, top right‑hand corner.  There are two 42s.  If your Honour ‑ ‑ ‑

HIS HONOUR:   The most baffling collection of documents.  What page is it this time?

MR KILLALEA:   Folio 42.  It is just a glitch in the numbering at this point.

HIS HONOUR:   It has four lines on it at the moment.  42 of which bundle?

MR KILLALEA:   Of Charles Whiting’s bundle, the affidavit of Charles Whiting.

HIS HONOUR:   It is not what I have.

MR KILLALEA:   I am sorry, your Honour.

HIS HONOUR:   I really should not have to sit here and do this.  I really should not.

MR KILLALEA:   I appreciate your Honour’s ‑ ‑ ‑

HIS HONOUR:   Now give it to my associate.

MR KILLALEA:   The applicant is an invidious position.  Offers of settlement have been made, your Honour, and ‑ ‑ ‑

HIS HONOUR:   Just let me find it.  It is annexure 6.

MR KILLALEA:   Yes, annexure 6.  Just a mistake in the numbering at 42.  If it is the wrong 42, I just ask your Honour to go forward about two pages, your Honour will find 42 again.

HIS HONOUR:   Yes, I have it.  What date is that document, the date of that fax?  Is it a fax?

MR KILLALEA:   It is 5 March.  There is a reference to it at 44 following, that is the decision of 6 March, and that the last sentence in the second paragraph:

You replied in writing on 5 March 2001.

He was given 24 hours notice on 4 March, your Honour.  He responded on 5 March and then the relevant decision was transmitted on 6 March.

HIS HONOUR:   Well, she says, does she not:

I have considered all your comments set out in your written response.

MR KILLALEA:   Yes, but then the question has to be - and this is the jurisdictional fact point and taking your Honour ‑ ‑ ‑

HIS HONOUR:   What jurisdictional fact.

MR KILLALEA:   The jurisdictional fact is the question of satisfaction.

HIS HONOUR:   Yes, that is right, reasonable satisfaction.

MR KILLALEA:   Sorry?

HIS HONOUR:   Reasonable satisfaction that means.

MR KILLALEA:   That is right.  So what the delegate, Loretta Baxter, had before her was the applicant’s letter of 5 March where he set out at paragraph 4 his reasons for coming to Australia.  He came as a tourist.  Yes, he did intend to attend the Olympic Games, but he also intended, as a tourist naturally does, to attend all of the other attractions in this State in particular.  Now, Loretta Baxter was also the officer who interviewed the applicant at the airport on 13 October and she said ‑ ‑ ‑

HIS HONOUR:   Yes, I realise that.  It just seems to me at the moment this just seems to involve some attempt at merits review.  I may be wrong, but that is what it seems to me at the moment.  Anyway, I do not want to get too far into the substantive determination of the matter.  The question really is, that being the - your complaint then, as I understand it, is that when 131(1)(b) says that there is to be a revocation of the cancellation, if the Minister is satisfied that the cancellation should be revoked, you say the Minister could not have been reasonably satisfied - sorry, you say the Minister had to be reasonably satisfied, do you not, that the cancellation should be revoked?

MR KILLALEA:   Yes.

HIS HONOUR:   That is what it has to come to, does it not?

MR KILLALEA:   That he had to be reasonably satisfied there were reasons why the cancellation should be revoked, yes.

HIS HONOUR:   But that was the decision that had to be made, that was the one that was mandated, in a way?

MR KILLALEA:   Yes.

HIS HONOUR:   All right.  The question then is, how would that argument fit in with one or other of the paragraphs in 476 of the Act?  I will adjourn the matter to enable Mr Lloyd to get some instructions on what the Minister would want to submit on that footing.

MR KILLALEA:   If the Court pleases.

HIS HONOUR:   How long do you need, Mr Lloyd?

MR LLOYD:   I have already asked my instructing solicitor to go and get those instructions.  Your Honour, 15 minutes I would hope.  Perhaps I can speak to Ms Carlsund if there is going to be a problem.

HIS HONOUR:   Yes.  It is probably best if I adjourn until 10.30 and if you get instructions beforehand let the Deputy Registrar know.

MR LLOYD:   May it please the Court.

HIS HONOUR:   All right.  I will take a short adjournment.

AT 10.00 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.28 AM:

HIS HONOUR:   Yes, Mr Lloyd.

MR LLOYD:   My instructions are that the Minister is of the view that as currently pleaded this ground, or at least the whole of the ground, is not within the jurisdiction of the Federal Court and if it were remitted and not repleaded the Minister would argue that to the Federal Court.  My friend has informed me that he is of the view that he can replead in a way that would fall within 476(1)(e) and ‑ ‑ ‑

HIS HONOUR:   (1)(e)?

MR LLOYD:   ‑ ‑ ‑ if he wants to take that chance, that is a matter for him, but the Minister is not in a position to say that as currently pleaded the matter would be within the jurisdiction of 476.  If your Honour would like to hear me on why, in my submission, there are very short ‑ ‑ ‑

HIS HONOUR:   No.  Well, it is rather embarrassing because the construction of 476 is awaiting decision in two appeals by the Minister in Yusuf and Israelian in which the hearing concluded on 16 November last year.  So I do not want to say or do anything that cuts across what might be decided in those cases, which makes it very awkward.

MR LLOYD:   And that is also why the Minister is not in a position to concede anything inconsistent with what he argued there.

HIS HONOUR:   Yes.

MR LLOYD:   But I could, if it would be of any assistance, provide some very brief statements as to why, in any event, there is just no basis for the claim in this Court and then perhaps your Honour could just simply dismiss the matter.

HIS HONOUR:   Well, that will only provoke an appeal.  That will not help anything.  Now, you say you can reformulate to bring yourself within ‑ ‑ ‑

MR KILLALEA:   (1)(e) and/or (a) and (b), your Honour.

HIS HONOUR:   Yes.  Well, I would not encourage you to rely on (a); (b), (c) and (e) might be another matter though.

MR KILLALEA:   Yes.  So we would, with respect, press for the matter to be remitted to the Federal Court, your Honour.

HIS HONOUR:   I would have to see it reformulated first.  The Court is sitting in Canberra and then Hobart for the next two weeks, something those advising the Minister might take on board in these situations.  I will simply stand your application over, Mr Killalea, to 9.30 on Wednesday, 11 April in Sydney.

MR KILLALEA:   Your Honour, it poses problems in this way - and I just wonder if there is another way to address it ‑ ‑ ‑

HIS HONOUR:   Well, you can start proceedings in the Federal Court tomorrow, if you want to.

MR KILLALEA:   The only difficulty there, of course, your Honour, that one cannot start proceedings there on grounds which are before this Court.

HIS HONOUR:   There is no grounds before here yet.  You have not got any order.

MR KILLALEA:   Yes, thank you.

HIS HONOUR:   You have not even got an order nisi.

MR KILLALEA:   I take your point, your Honour, thank you.

HIS HONOUR:   Yes.  You see what I mean?

MR KILLALEA:   Yes.

HIS HONOUR:   So I will stand this application over until 9.30 am on Wednesday, 11 April.  If you start any concurrent proceedings in the Federal Court, nothing said or done here is meant to inhibit that course.  It is not meant to rule on the efficacy of the course either, but if you take that course, if you could tell the Deputy Registrar before the 11th.  If, in the meantime, you also want to reframe the relief you seek here, you should provide a draft of that in good time before the 11th.  It may well be that the practical result is that the matter is remitted from here and joined with your process in the Federal Court and heard together.

MR KILLALEA:   Yes.

HIS HONOUR:   It may also be that Yusuf and Israelian comes down at some time too, which would assist in all of these matters.

MR KILLALEA:   Yes, thank you, your Honour.

HIS HONOUR:   Now, how soon you can reformulate it so Mr Lloyd has a chance to look at it?

MR KILLALEA:   Monday, next Monday, would that be ‑ ‑ ‑

HIS HONOUR:   Yes.  It requires some fairly careful attention.  You might be assisted in that if you look at the transcript of the argument in Israelian and Yusuf too.

MR KILLALEA:   Thank you, your Honour.  Perhaps if I could go through to about - say, by Wednesday of next week?

HIS HONOUR:   I will not make a direction about it, but if you could aim at providing your revision on or before 30 March and I will stand matter over until 9.30 before me in Sydney on 11 April.

MR KILLALEA:   If the Court pleases.

MR LLOYD:   Your Honour, if I might - in the circumstances your Honour has flagged that my friend could simply just start in the Federal Court, which he is still within 28 days, so that seems that he could do that ‑ ‑ ‑

HIS HONOUR:   Yes.  It would be quite prompt, I thought.

MR LLOYD:   Indeed.  He may choose to do that and withdraw these proceedings and just in light of the possibility that he might do that, would your Honour certify that today’s matter was an appropriate matter.

HIS HONOUR:   Yes, you are quite right.  Yes, as against the possibility that this is the last time I get to deal with this here, I should order that there be certification for counsel of today’s proceedings and that would carry over to the consequent order for costs on a discontinuance being filed.

MR LLOYD:   May it please the Court.

MR KILLALEA:   Would that give us the opportunity at a later stage to be heard on costs, your Honour?

HIS HONOUR:   Well, if you discontinue it here, you would bear the costs under the Rules.

MR KILLALEA:   Yes, but I would seek leave to be heard on costs - seek leave to have the opportunity to be heard on costs, if the matter is to be discontinued, and for this reason, that the applicant was given 24 hours notice that he was to leave Australia.  He had no time to muck about, as it were.  There are other difficulties of jurisdiction and Yusuf and Israelian are salient matters in regard to that.  He had to act and he had act conclusively in the sense of coming to a court wherein he could be assured of jurisdiction.  Now, in that circumstance, your Honour, I submit that it is appropriate that ‑ ‑ ‑

HIS HONOUR:   Well, if you wanted to make those submissions, you would have to make them in the event on an application.

MR KILLALEA:   Yes.

HIS HONOUR:   But I am not foreclosing it one way or the other, if that is what you want to do.  All right.  I will adjourn to the date indicated.

AT 10.37 THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 11 APRIL 2001