Durzi v MIAC & Anor

[2007] HCATrans 612

[2007] HCATrans 612

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S31 of 2007

B e t w e e n -

LAWRENCE DURZI

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

Application for reinstatement

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 10 OCTOBER 2007, AT 9.53 AM

Copyright in the High Court of Australia

MR J.G. AZZI:   I appear for the applicant.  (instructed by the applicant)

MR G.T. JOHNSON:   May it please, your Honour, I appear for the first respondent.  (instructed by Blake Dawson Waldron)

HIS HONOUR:   There is a submitting appearance from the second respondent, which is the Migration Review Tribunal.  The identification of the first respondent should be amended to take account of the change in the portfolio description.  So the first respondent should henceforth be identified as the Minister for Immigration and Citizenship. 

MR JOHNSON:   Thank you, your Honour. 

HIS HONOUR:   What is the nature of your application this morning, Mr Azzi?

MR AZZI:   Your Honour, we are seeking a reinstatement of a special leave application that was filed in January 2007.  We have prepared two affidavits seeking to explain the delay.  I have also gone to the length of preparing some submissions and a bundle of documents.

HIS HONOUR:   What is that going to tell me that is not in the affidavits?

MR AZZI:   We are going to try and explain the delay by saying that we moved with reasonable diligence once we realised that it was abandoned.  The affidavits, if your Honour has them on file, of 21 September ‑ ‑ ‑

HIS HONOUR:   Just tell me the deponents.  There is one by your client of 8 October and an earlier one. 

MR AZZI:   Yes, of 21 September.

HIS HONOUR:   Filed on 21 September.

MR JOHNSON:   I have no objection to those, your Honour. 

HIS HONOUR:   Yes.  I have read those.

MR AZZI:   Your Honour will see on the supplementary affidavit that some measures were taken to reinstate the ‑ ‑ ‑

HIS HONOUR:   Can we look at exhibit A to the supplementary affidavit of 8 October.

MR AZZI:   Yes.  That was the consent form that the applicant ‑ ‑ ‑

HIS HONOUR:   Is that the effect of the orders you seek this morning?  Take a moment to look at it.

MR AZZI:   Yes, your Honour.

HIS HONOUR:   Subject to what Mr Johnson says, he may be right that the better side of the argument on the merits as to the construction of these migration regulation provisions is with the Minister, but I think the matter should go ahead.  What I would propose would be to make an order in terms of order 1 of that document we have just been looking at; make order 2 within 21 working days - it would be better to have a specific date, would it not?  That would be 31 October – likewise, the draft notice of appeal and order that the application for special leave then proceed on the papers in accordance with rule 41.11.1 and the costs of the reinstatement application would be costs of the special leave application.

MR AZZI:   I am grateful, I am thankful for ‑ ‑ ‑

HIS HONOUR:   I have to hear what Mr Johnson says yet. 

MR JOHNSON:   Your Honour, I will be brief.  Firstly, with respect to the proposed orders that your Honour has just articulated, there will be no difficulty with those if your Honour was inclined to grant the reinstatement. 

HIS HONOUR:   I understand the force of what you say about delay.

MR JOHNSON:   I thank your Honour for that.

HIS HONOUR:   I do understand that.  I think in the end it is better for it to go forward in that way, rather than me now having to, in a side‑handed sort of way, look at the merits in order to determine whether it should be reinstated. 

MR JOHNSON:   If that is your Honour’s view, then we understand that.  There is only one matter that I would like to draw to your Honour’s attention by way of emphasis, and that is this.  Looking at my friend’s further submissions that he provided this morning ‑ ‑ ‑

MR AZZI:   Your Honour has not been provided with a copy.  May I hand up a bundle?

MR JOHNSON:   I am content for your Honour to ‑ ‑ ‑

HIS HONOUR:   Yes.

MR JOHNSON:   It is evident from what my friend has said that the particular case that he wishes to put to the Court is one which depends upon the administrative decision‑makers in his submission not having applied paragraphs of the procedures advice manual – not the regulations but the procedures advice manual – which go to the issue of contact between the applicant and the suggested overseas near relatives.  The point, your Honour, is perhaps best made at or about paragraph 41.  Your Honour will see in paragraph 41 that he quotes a particular paragraph of the procedures advice manual which he is relying upon. 

MR AZZI:   If I may, your Honour, that is tab 3 in my bundle. 

MR JOHNSON:   I am indebted to my friend.

HIS HONOUR:   You have a point about the status of that document, do you not?

MR JOHNSON:   There is a point about the status of that document.  I understand that to be captured by what your Honour said earlier.  Your Honour referred to the regulations, but I understand your Honour was referring to the procedures advice manual.  But there is another substantive point, and that is - let us assume for the moment, against the respondent, that there was an obligation to follow the PAM.  I do not make that concession, of course, but let us assume there was and let us assume that it was not followed.  All of this goes to the issue of contact between the applicant and the overseas near relatives.  It has been found below that the question of contact between ‑ ‑ ‑

HIS HONOUR:   This was by Justice Lander?

MR JOHNSON:   Yes, but that was not the issue.  If the boys had been over 18, it may have been an issue but, given that they were not under 18, the issue was something else.  That, it seems to us, is a rather profound difficulty, even if one assumes that the applicant’s argument otherwise has merit.  If your Honour’s immediate reaction to that is that it is something that needs to be thought about and is better ventilated in the context of ‑ ‑ ‑

HIS HONOUR:   What I would propose would be to direct that the transcript of this morning’s proceedings be added to the application book, I think. 

MR JOHNSON:   I thank your Honour.  I am grateful. 

MR AZZI:   Your Honour, might I be heard briefly on my friend’s last point?

HIS HONOUR:   Yes.
10/06/21
MR AZZI:   Your Honour will see from the submissions that paragraph 41 is the last point, but that is not the main point that we seek to rely on.  What we seek to rely on is when the Tribunal says it will have regard to departmental policy subject to any manifest conflict with regulations, then it will follow the regulations – there are no manifest conflicts.  When it says it is going to have regard to it, we say it is bound to have regard to it.  What Justice Lander’s decision does is it does not attribute any significance to that statement.  It just says, well it has had regard for it.  But we say there are ample authorities in the Full Court and the Federal Court and subsequently in Elliott’s Case which basically elevated it.  It said that policy guidelines – your Honour, they are in the bundle – are instrumental in the process of decision making for good government and consistent decision making.  There is no High Court authority that I could come up with on this point.  Elliott’s Case is tab 6, or tab 5, I believe, in my ‑ ‑ ‑

HIS HONOUR:   This is 156 FCR 559.

MR AZZI:   Yes.  At paragraph 41 the Full Court reproduces the Full Court majority judgment of Justices French and Drummond in Gray’s Case 50 FCR 189. We say that that particular paragraph is highly apposite to this case and particularly the second half of that paragraph. We say that where the Tribunal says it is relevant to look at departmental policy, departmental policy in 21.5 says that the rights of the parent may be delegated. For example, you could send them off to a boarding school and still have daily care and control for the purpose of regulation. The Tribunal in its decision at paragraph 40, which is, I believe, tab 3 of my friend’s bundle – if I may, I will read from paragraph 40. Does your Honour have the decision before you?

HIS HONOUR:   Yes, go ahead.

MR AZZI:   Yes.

There is no evidence on file to suggest that the review applicant’s children are wholly or substantially incapacitated for work because of a disability.  The review applicant’s children are both under the age of 18, and the question arises as to whether they are wholly or substantially in the daily care and control of the review applicant.  The Tribunal accepts that the review applicant has maintained regular contact with his two sons, and that he has sent them and their mother money from time to time as required and to the extent the review applicant has been able.  The Tribunal also accepts that the review applicant is familiar with what is happening in his sons’ lives and that from time to time he will be called upon to offer advice and give guidance.  It is clear to the Tribunal that it could not be said at the time of application or at the time of this decision being made that the two sons had been wholly in their father’s daily care and control.  This is because they are young persons (born 1990 and 1993) who lived with their mother in Cyprus whilst their father has been in Australia.  From the evidence contained in the above files and presented at the hearing, the Tribunal is not satisfied that the two boys have been substantially in their father’s daily care and control, either at the time of application or at the time of this decision being made.

Then it makes a superfluous comment:

The review applicant’s children do not meet the definition of “dependant child” and are therefore considered to be “overseas near relatives” of the review applicant.

Putting aside that last statement, the policy guidelines at 21.5 is what his Honour Justice Lander accepted applied at the time.  Policy 21.5 under the heading “Daily care and control” says – that is, I believe, tab 3.  It is page 11 of 12:

Officers should also note that ‘daily care and control’ can be delegated without compromising the rights of the parent.  It is not necessary for children to reside with their parents in order to be under the parents’ daily care and control.  This allows children at boarding school, for example, to be considered to be within the daily care and control of their parents. 

Your Honour, this policy guideline gives the practical application to the regulations that say that you must be outside of your country of residence and apply for a visa in Australia and you must not have more than three overseas near relatives.  This is a remaining visa.  The regulations are, again, at tab ‑ ‑ ‑

HIS HONOUR:   The problem with all of this may be what Mr Johnson says on page 14 of his written submissions of 9 October.

MR AZZI:   Page 14?  Paragraph 14.

HIS HONOUR:   Paragraph 14, yes.  It says: 

The Tribunal’s role was not to oversight compliance by the delegate with PAM 3, but to reach the correct and preferable decision on the material before the Tribunal whether the applicant satisfied the legislative criteria for the visa in question.

These arguments about procedures manuals have been around for a while, but that I think is, as I understand it at the moment anyway, the general position that applies.  Anyhow, I am not going to rule on this this morning, Mr Azzi, that is the point.

MR AZZI:   I apologise, your Honour. 

HIS HONOUR:   I understand what you want to say.  What do you want to say, Mr Johnson?

MR JOHNSON:   I do not wish to add to what I said before.  I take your Honour’s position on board.

HIS HONOUR:   Should the manual be included in the leave book?

MR JOHNSON:   I think it should be, yes. 

HIS HONOUR:   Can we identify it ‑ ‑ ‑

MR JOHNSON:   I am not sure, your Honour, I must say, that it was tendered below.  It might have been. 

MR AZZI:   Yes, it was, your Honour. 

MR JOHNSON:   It was not clear to me from the judgments that it had been, your Honour, but it may have been.  I was not in it below.

MR AZZI:   His Honour specifically adverts to it. 

HIS HONOUR:   How should I identify it?

MR JOHNSON:   I am not sure whether it was exhibited or not.  Perhaps it could be identified as any parts of the Procedures Advice Manual that were tendered before the Federal Magistrate’s Court or the Full Court.

HIS HONOUR:   The Procedures Advice Manual tendered in the Federal Magistrate’s Court or the Federal Court.

MR JOHNSON:   Or the Federal Court.

HIS HONOUR:   Thank you.

MR JOHNSON:   Your Honour, with respect to the respondent’s summary of argument, as I understand it your Honour probably would not need to make a direction about that.  We would just file it and it would ‑ ‑ ‑

HIS HONOUR:   At the moment, the other side’s material is going in on 31 October.

MR JOHNSON:   Yes, that is right.

HIS HONOUR:   Do you want any specified time or just the ordinary time?

MR JOHNSON:   Just the ordinary time, your Honour.

HIS HONOUR:   You will be governed by the rules, I would think. 

MR JOHNSON:   Yes, thank you. 

HIS HONOUR:   This is what I will provide:

1.Leave to reinstate the special leave application deemed abandoned.

2.On or before 31 October the applicant file and serve the written case and draft notice of appeal.

3.The first respondent’s case and any reply be filed thereafter in accordance with the Rules.

4.The application book contain the transcript of today’s proceedings and any part of the Procedures Advice Manual which was received in evidence in the Federal Magistrates Court or the Federal Court.

5.The special leave application then be dealt with on the papers as provided in rule 41.11.1. 

6.Costs of today be costs of the special leave application.

MR JOHNSON:   If your Honour pleases.

HIS HONOUR:   Does counsel have a note of that?

MR JOHNSON:   Yes, your Honour.

HIS HONOUR:   I will hand back your bundle of documents.  Thank you.

AT 10.16 AM THE MATTER WAS CONCLUDED