Dao and Pham v MIAC

[2008] HCATrans 218

[2008] HCATrans 218

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M37 of 2008

B e t w e e n -

QUANG SINH DAO

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Office of the Registry
  Melbourne  No M38 of 2008

B e t w e e n -

THI HUYEN PHAM

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Applications for order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 30 MAY 2008, AT 5.38 PM

Copyright in the High Court of Australia

__________________

MR M.W. GERKENS:   If your Honour pleases, I appear for the plaintiffs.  (instructed by FCG Legal Pty Ltd)

MR S.P. DONAGHUE:   If it please the Court, I appear for the respondents.  (instructed by Australian Government Solicitor)

HER HONOUR:   Mr Gerkens, as I understand it, you have an application for urgent interlocutory relief?

MR GERKENS:   I have, your Honour.  I am sorry, the documents are a bit sparse but we had last minute instructions in this matter.  It is an application for a writ of prohibition prohibiting the Minister from removing our clients ‑ ‑ ‑

HER HONOUR:   Well, I will not be hearing that this evening.  I will be hearing an application for urgent relief.

MR GERKENS:   Yes, thank you, your Honour.  The situation is that our clients were in clearance.  They came into clearance with subclass 456 business temporary type visas.  In clearance they were given notification of intention to cancel and, in fact, cancelled.  They, therefore, have no rights of merits review and my understanding of the Migration Act is that judicial review is not available in either the Federal Magistrates Court or the Federal Court and that is the reason why we are here today, your Honour.

I am instructed that they are to be removed sometime tomorrow, in the morning as I understand, and I do seek urgent relief in the sense that some order be made that they not be removed until this matter can be dealt with or until further order.

HER HONOUR:   Yes, anything further on that issue of the need for urgent relief?

MR GERKENS:   Only that, basically, if they are removed, then, of course, any remedy that they may gain in this Court will be of no assistance to them in that they have been removed from the jurisdiction.

HER HONOUR:   Yes, thank you, Mr Gerkens.  Yes, Dr Donaghue.  First of all, may I ask you, is it correct that judicial review is not available in the Federal Magistrates Court?

MR DONAGHUE:   No, it is not, your Honour.

HER HONOUR:   So there is no right of appeal in relation to this decision or review?

MR DONAGHUE:   Sorry, my “no” was ambiguous.  It is not correct that review is unavailable.  As we read the Act, review would be available in the Magistrates Court. 

HER HONOUR:   That is what I would have thought under section 338, but I am asking for your assistance because this matter has obviously come on very urgently.

MR DONAGHUE:   Yes, your Honour.  The jurisdiction of the Federal Magistrates Court is governed by section 476 of the Act.  Section 476(1) gives that court the same jurisdiction as this Court under section 75(v) subject to a number of carve outs.

HER HONOUR:   Exceptions, yes.

MR DONAGHUE:   Those carve outs include a primary decision defined as a decision that is reviewable in the Migration Review Tribunal under Part 5 or in the Refugee Review Tribunal under Part 7 or ‑ ‑ ‑

HER HONOUR:   That is why I made reference to section 338, because under subsection (3)(b) it appeared to me that if a decision to cancel a visa is made at a time when the non-citizen is in immigration clearance, it will not be a Migration Review Tribunal reviewable decision.

MR DONAGHUE:   That is correct, which means that it is not a primary decision.

HER HONOUR:   Yes.

MR DONAGHUE:   Which means that the carve out does not apply and the Magistrates Court has the same jurisdiction as this Court.

HER HONOUR:   Yes, so that there is concurrent original jurisdiction.

MR DONAGHUE:   Yes, precisely.

HER HONOUR:   Accordingly, this matter could be remitted to the Federal Magistrates Court in due course.

MR DONAGHUE:   It could.  That is our understanding.

HER HONOUR:   Yes.  Well, that was my understanding on a very quick look, if you look at section 476 and section 338(3)(b).

MR DONAGHUE:   Yes.  I have only looked at quickly as well, but following that exact same path of reasoning, that is the conclusion that we reached.

HER HONOUR:   Yes.  I will ask Mr Gerkens later, but it is possible there just simply has not been the time to work all that analysis through.

MR DONAGHUE:   Yes.  The difficulty we say, your Honour, now that we are here and albeit late on a Friday, is that, as Mr Gerkens says, removal is scheduled for tomorrow morning and the applicants are in immigration detention having not been through immigration clearance and that is where they will remain while this case works itself through, wherever it works itself through, whether it be in this Court or in the Federal Magistrates Court.

HER HONOUR:   All courts can give speedy hearings in appropriate circumstances, including the Federal Magistrates Court, so one possibility would be to have a combination of interlocutory or interim relief coupled with a remitter.

MR DONAGHUE:   It would.  That is one possible outcome.

HER HONOUR:   I would have every confidence that the matter could be dealt with speedily in that way and there would be protection for the position of the clients of Mr Gerkens under the interlocutory or interim injunction.

MR DONAGHUE:   Yes.  If your Honour was minded to grant interlocutory relief, and I would seek to be heard very briefly on that ‑ ‑ ‑

HER HONOUR:   Yes, certainly.

MR DONAGHUE:   - - - but if the Court is minded to do that, we would not oppose the Court following that order with a remittal order to the Federal Magistrates Court.

HER HONOUR:   Yes.  It just strikes me that there is an affidavit from a lady ‑ ‑ ‑

MR DONAGHUE:   Ms Bui.

HER HONOUR:   Yes, and it may well be that her evidence would be filed on the basis that she is available for cross-examination in the usual way and that the merits then are properly ventilated.  I would be concerned to protect the position of the clients pending the proper ventilation and procedural fairness that would accompany a proper ventilation of the issues that are raised.

MR DONAGHUE:   Your Honour, I was content for this evening’s purpose to accept her evidence at its highest, although down the track it may well be, as your Honour says, that we would seek to cross-examine on it, but the difficulty that we see confronting this application, even accepting everything that Ms Bui says, is that really what she says is that her husband gave incorrect information to the delegate.  He did not know what he was talking about when he gave the particular answers.  So she says, “I have broken English.  My husband had no personal knowledge of the intentions”, but she does not actually say he did not give the delegate the information that the delegate sets out having received.

HER HONOUR:   One difficulty, and I think it probably reflects the urgency with which the proceedings have been prepared and I certainly do not want to find that the applicants are in any way penalised because of the urgency, but one difficulty is the affidavit is, in fact, in English, although she deposes in English for not having a command of English.  I dare say Mr Gerkens would want to address those issues if there is going to be a hearing in the usual course in relation to the merits of this application.  So, I am concerned about those issues, which does not mean I have not, of course, appreciated what you have said.  In other words, I am not sure it is appropriate to deal with the substantive merits this evening, particularly when the matter can be remitted to the Federal Magistrates Court which is the usual repository for a matter of this kind, because all courts can deal with circumstances of urgency.

MR DONAGHUE:   Yes.  Your Honour, I do not, with respect, take issue with any of that.  The only consequence of it, we say, is that here there is a short‑term visa, three month maximum – I do not know what the length of the particular visa here is.

HER HONOUR:   I think it was 15 days.

MR DONAGHUE:   The applicants say they are only coming for two weeks or 15 days, something of that ‑ ‑ ‑

HER HONOUR:   Yes.  I have read the material very speedily only.

MR DONAGHUE:   In those circumstances, the balance of convenience factors, if you like, are in their favour much less than would be the case with a long‑term resident or refugee applicant or a visa applicant of that kind.

HER HONOUR:   I suppose the maximum is three months for a business stay, is it not?

MR DONAGHUE:   Yes.

HER HONOUR:   I suppose there would be a possibility under the legislation to apply to extend a short‑term visa that had been obtained on the basis of a 15‑day stay.

MR DONAGHUE:   Perhaps.  I do not have instructions on that, your Honour.

HER HONOUR:   No.

MR DONAGHUE:   But we do know that they were intending to come for two weeks, that they had been in immigration detention since Tuesday, but they may well, even if the Magistrates Court does manage to provide an expedited hearing, be in detention for some time longer and all of that in circumstances where ultimately the question is, was it open to the delegate to reach the decision that he reached.  The criteria under the regulations turn on the satisfaction of the delegate as to whether the applicants were genuine and all that is put against us in the application is it said that it was not bona fide or that there was a denial of procedural fairness in circumstances where the delegate spoke to the contact, obtained the information from the contact and put all of that information to the visa applicants before the decision was made.  So they had an opportunity to meet – that is said to have been made. 

Annexure A to the application shows the delegate putting exactly the same material that he ultimately relied upon to them.  So we submit that in those circumstances, while we accept that an urgent hearing may well be able to be procured in the Magistrates Court, the likely result of all this is that the applicants spend one or two weeks in detention and are then removed.  In those circumstances, the merits of the case being so weak on their face and removal being scheduled for tomorrow, we submit that it is not an appropriate case for the grant of interlocutory relief, both because the case is weak, so there is not an adequate serious question, and because the balance of convenience factors are neutral at best and possibly, in fact, against the grant of relief given the short time involved and the detention arrangements.

HER HONOUR:   I can understand your point about the case not being a particularly strong one.  As against that, I am concerned about procedural fairness and the fact that it is possible that Mr Gerkens could, of course, if he has the opportunity, correct some of the deficiencies in the affidavit material, that is to say, deal with the affidavit material in a less urgent context.  I mean, I will ask you in a moment whether or not that is in prospect, that the material will deal with some of the obvious shortcomings to which you have pointed.  That I think are the competing considerations and it is very difficult when there is an issue of procedural fairness to move quite as quickly as denying any interim relief, even though, of course, I understand the principles which you are relying on perfectly.

MR DONAGHUE:   Yes.  There may not be any more I can say about that, your Honour.  We note that this decision was made on Tuesday night.  We are not quite sure why we are here on such short notice and limited material.  It may be that my friend only just got instructions.

HER HONOUR:   That might be the explanation.  I mean, obviously there is a bit of delay there having regard to detention being the consequence of the decision.

MR DONAGHUE:   Yes.  I believe some attempt at removal, in fact, occurred yesterday and that that was unsuccessful.  So there have been the airlines incurring costs and will incur further costs tomorrow.  That is a matter for them, not for my client, but there are financial consequences being borne as a result of this matter by others.

HER HONOUR:   Yes, thank you for that assistance.  Mr Gerkens, you have heard some submissions put about certain deficiencies.

MR GERKENS:   Certainly, your Honour.

HER HONOUR:   I do not require you to deal with the issue of delay unless, of course, you wish to give some indication about the fact that that does account for the paucity of the material, but I can recognise the delay, whilst it is not insignificant, it also would not necessarily be of such an order as to preclude relief.

MR GERKENS:   Yes, your Honour.  We were instructed after 1.00 pm today and at the time of instruction the deponent, Ms Bui, was not available.  I only saw her about 4.15 pm at a time when I was already keeping the Court Registry open especially to look after this particular matter.  So I was under intense pressure.  Her affidavit I would certainly propose to amend in due course and provide much more detail.  If I could take your Honour to section 338(3):

A decision to cancel a visa held by a non‑citizen who is in the migration zone at the time of the cancellation is an MRT‑reviewable decision unless ‑ ‑ ‑

HER HONOUR:   Yes, “unless” and then go to (b).

MR GERKENS:   At the time of cancellation both plaintiffs were actually in clearance, which is not “in the migration zone”.

HER HONOUR:   That is covered by 38(3)(b), you see.

MR GERKENS:   Well, it is my submission that it is not really covered because the premise upon which the whole subsection is based is that a decision to cancel “by a non‑citizen who is in the migration zone is an MRT‑reviewable decision”.  There is nothing which says that it is an MRT‑reviewable decision if the visa holder is not in the migration zone.

HER HONOUR:   You have to look at the “unless”:

Unless the decision . . . 

(b)is made at a time when the non‑citizen was in immigration clearance –

So the situation your clients are in is specifically covered, it seems to me, by the subsection there.

MR GERKENS:   What I am saying, though, your Honour, and I understand what you are saying ‑ ‑ ‑

HER HONOUR:   I understand what you are saying, but I am saying that, if you are going to construe this sensibly, (b) would not be there if your argument were not correct.

MR GERKENS:   Very well, I accept that, your Honour.  I am quite happy with that.  In that case, I heard what your Honour said in terms of perhaps remitting the matter and I certainly have no issues about that.

HER HONOUR:   Yes.  Well, you would have detected that my inclination is to grant an interim injunction but also to remit the matter to the Federal Magistrates Court.  Can I ask both of you this, would it assist if you both had 15 minutes now to work out some minutes of order?  In other words, in relation to an interim injunction and a remitter with the usual directions in relation to remission or would you prefer we discuss them together, as it were?  I just detected that you might have wanted an opportunity to check your instructions in relation to section 338.

MR DONAGHUE:   No, I am relatively confident about those instructions.

HER HONOUR:   Yes.

MR DONAGHUE:   They accorded with my initial view and, having a short time to check them, I am comfortable that the Court has jurisdiction. 

HER HONOUR:   And, of course, the Court has jurisdiction, you would concede, to grant the interim relief?

MR DONAGHUE:   This Court?

HER HONOUR:   Yes.

MR DONAGHUE:   Of course, yes, certainly.  The reason I am hesitating is whether it is possible for this Court to make any orders that would govern the timetabling of the matter in the Federal Magistrates Court, which I think it may not be.

HER HONOUR:   I think you probably cannot govern it in terms of directions.

MR DONAGHUE:   Yes.

HER HONOUR:   Obviously the fact that events will have transpired, as they do here, will be of importance in terms of timing with the Federal Magistrates Court, but that also raises the issue too of the precise wording of any interlocutory injunctive relief, because it will not be until further order of this Court.

MR DONAGHUE:   Yes, indeed.  Although, if this proceeding is being remitted, your Honour could make an order until the hearing and determination of the matter, which would then carry with it ‑ ‑ ‑

HER HONOUR:   Yes.  That occurred to me and that means that Mr Gerkens can apply for a stay or a continuing injunction or whatever in the context of a hearing and determination.  So that might be the best way of doing it, if you have no opposition to that.

MR DONAGHUE:   No.  My only concern is that if the Federal Magistrates Court does not deal with it as expeditiously as one might hope, that will lock everyone into a situation where the applicants might be in detention for quite some time.

HER HONOUR:   That is why I wondered if there is some way around it.  I mean, the usual way would be until hearing and determination.  The other way of doing it is sometimes until a particular time limit which may be shortish, or further order.

MR DONAGHUE:   Yes.  That might encourage the matter to come on quickly in the Magistrates Court if your Honour were to make an order in ‑ ‑ ‑

HER HONOUR:   Yes.  That is why I thought you might benefit from 15 minutes together.

MR GERKENS:   Perhaps, or further order by the Magistrates Court, your Honour?

MR DONAGHUE:   Sorry, I did not hear that suggestion?

HER HONOUR:   Until further order by the Magistrates Court.  Well, it could just be, yes, until further order, I think.  Do you want an opportunity or would you prefer me to perhaps go off the Bench and just have a think about it?

MR DONAGHUE:   If your Honour would give us just perhaps five minutes, that might be helpful?

HER HONOUR:   Yes, we would obviously want to have the usual orders in relation to a remittal.  I can look after that.

MR DONAGHUE:   Yes.  There is a standard form, as I recall it.

HER HONOUR:   Yes, that is right.  It is just a question of trying to work out precisely interim relief which addresses the arguments that you have both put to me about the need for an urgent hearing, the fact that two people are in detention, balanced against the desire of Mr Gerkens to redo the material or supplement the material.

MR DONAGHUE:   I think, your Honour, I am leaning in the direction of asking the Court to make an order until this time next week, which would give Mr Gerkens time to supplement the material but also it is a way of conveying to the Federal Magistrates Court that the matter should come on back before it ‑ ‑ ‑

HER HONOUR:   The other point about that, if it is done until next week – and I think there are certainly considerations which would support a short‑term interlocutory injunction – if all the steps have been taken and directions are made in relation to a substantive hearing, then your client is in a position to give an undertaking in relation to deportation or whatever until hearing and determination.  So the whole issue of injunction goes away.  I mean, that is another possibility for tonight.

MR DONAGHUE:   It is another possibility, yes.

HER HONOUR:   If you have the instructions, which is another reason I thought perhaps if I went off the Bench for five minutes or if you need further time, you can always let the court officers know.  That is another way of dealing with it.  That is why I offered the opportunity, for minutes.

MR DONAGHUE:   Thank you, your Honour, and we will take that up.

HER HONOUR:   I will leave the Bench until we receive an indication that you are ready to proceed with the making of the orders.

MR DONAGHUE:   Thank you, your Honour.

AT 6.00 PM SHORT ADJOURNMENT

UPON RESUMING AT 6.12 PM:

MR DONAGHUE:   Thank you for that time, your Honour.  There is no great rocket science in what I am about to give you, but could I hand up a document that is a standard form court remittal order with some minor annotations.

HER HONOUR:   Yes.

MR DONAGHUE:   The point of significance is that I do have instructions to offer an undertaking and your Honour will see I have drafted at the top the suggested undertaking.

HER HONOUR:   Yes.  You have seen that order, Mr Gerkens?

MR GERKENS:   Yes, your Honour.  We consent to that order.

HER HONOUR:   Yes, very well.  Thank you very much for that assistance.  I will make the order in those terms.

MR DONAGHUE:   Thank you, your Honour.

MR GERKENS:   If your Honour pleases.

HER HONOUR:   Upon the defendant undertaking that the plaintiffs will not be removed from Australia prior to 6.00 pm on Friday, 6 June 2008, the Court orders:

1.The proceeding be remitted to the Federal Magistrates Court at Melbourne.

2.The proceeding continue in that court as if the steps already taken in the proceeding in this Court have been taken in that court.

3.The Registrar of this Court forward to the proper officer of that court photocopies of all documents filed in this Court.

4.The costs of the summons be costs in the proceeding.

5.The costs of the proceeding to the date of remission, including the costs of this order, are to be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable to that court and in the discretion of that court.

Adjourn the Court.  I thank counsel for their assistance.

AT 6.13 PM THE MATTER WAS CONCLUDED