Ervin, Ex parte- Re Min for Immigration &Multicultural Affairs
[1997] HCATrans 185
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B29 of 1997
In the matter of -
An application for Writs of Prohibition, Mandamus, Certiorari and Habeas Corpus and injunctions against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
Ex parte -
LORENZO ERVIN
Prosecutor/Applicant
BRENNAN CJ
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
FROM BRISBANE BY VIDEO LINK TO CANBERRA
ON THURSDAY, 10 JULY 1997, AT 3.39 PM
Copyright in the High Court of Australia
MR J.S. DOUGLAS, QC: If the Court please, I appear on behalf of the prosecutor with MR D.C. RANGIAH. (instructed by Terry Fisher & Co)
MR R.W. GOTTERSON, QC: If the Court pleases, I appear with my learned friend, MR P.D.T. APPLEGARTH, for the respondent Minister. (instructed by the Australian Government Solicitor)
HIS HONOUR: Yes, Mr Douglas
MR DOUGLAS: Your Honour, you should have an affidavit of Terence William Fisher, filed today.
HIS HONOUR: Yes, I have that.
MR DOUGLAS: And an affidavit of Lorenzo Ervin, also filed today.
HIS HONOUR: I have that also. Now, attached to Mr Fisher’s affidavit there are, I think, four exhibits, is that right?
MR DOUGLAS: That is right, yes, your Honour. You should also have a draft order nisi and a summons.
HIS HONOUR: Yes, they are here.
MR DOUGLAS: Thank you, your Honour.
HIS HONOUR: Have you any material, Mr Gotterson?
MR GOTTERSON: If your Honour pleases, there has been transmitted by fax an affidavit of Linda Mortensen, sworn today, which has four exhibits to it.
HIS HONOUR: It is here. I have not read it as yet. Do I need to read it immediately before the application is heard?
MR GOTTERSON: Yes, I think your Honour does, because it will emerge that there is a factual issue very much in dispute. At the forefront of our learned friend’s submission is a submission based on a factual assertion that Mr Ervin was granted executive clemency in the United States in respect of the two matters upon which he was convicted. Miss Mortensen’s affidavit contains as exhibit 2 to it, a certificate of a Pardon Attorney of the United States in Washington to the effect that no executive clemency or presidential pardon has been granted to Mr Ervin but, in fact, there was an
application for one made in March 1977 but was denied by the President on 22 November 1977. I draw that to your Honour’s attention because so much seems to be placed on that in our learned friend’s case.
HIS HONOUR: Yes.
MR GOTTERSON: I should say we had wished also to put a further affidavit before the Court. We did not get material until half past 2 or a little after, and we wished to put an affidavit telling the Court what would have happened in accordance with departmental practices had the question on the application form in regard to criminal convictions been answered. We are not in a position to do that at the minute, if your Honour pleases.
HIS HONOUR: Yes. Perhaps I could get you to identify, Mr Douglas, the specific points of law and questions of fact that might arise for determination at this stage of the application.
MR DOUGLAS: Certainly, your Honour. Your Honour should have received an outline of submissions earlier today attempting to do that, but I can encapsulate it fairly easily if your Honour has not yet received that document.
HIS HONOUR: I have seen it, Mr Douglas, but it does not seem to be here at the moment. Mr Associate, do you have a copy of it there? Yes. You will have to take me through the Migration Act, Mr Douglas, to identify the issues that arise.
MR DOUGLAS: Thank your Honour. The critical issue that arises for today’s purposes comes from section 501. That is the section the Minister had to consider two days ago when she decided to cancel the visa that had been issued to the prosecutor. It appears from the correspondence that she relied upon section 501(2)(a) to decide to cancel the visa.
That subsection applies to a person if the Minister:
(a) having regard to:
(i) the person’s past criminal conduct; or
(ii) the person’s general conduct;
is satisfied that the person is not of good character;
Now, the shortest point, and perhaps the critical one, that arises in this case is that, in our submission, the Minister failed to take into account a relevant consideration when looking at that section in order to arrive at her decision, namely it appears that she looked only at the person’s past criminal conduct and did not take into account his general conduct or character to enable her to arrive at a properly informed conclusion whether he was currently not of good character. You will see the verb is “is” not of good character, not “was” not of good character in the past. So, to encapsulate it, from the prosecutor’s point of view, the argument is that the Minister’s decision erred in law because it failed to take into account a relevant consideration.
As a corollary of that, we also submit that she failed to accord natural justice to the prosecutor because she failed to allow him, in effect, to address her or make submissions to her about those issues of his general character, apart from an issue related to his conviction back in 1969 for air piracy and kidnapping.
So it really becomes a question of whether he should have been categorised as once a sinner, always a sinner, and we submit that the Minister decided that once a sinner was good enough, that was all that she needed to look at, and it was not relevant for her to consider questions of his general character thereafter. The reason why we say that that appears to be the case comes from her own letter, which is exhibit TWF1 to Mr Fisher’s affidavit, and Mr Fisher’s evidence in particular about the nature of the proceedings in which information was sought to be elicited from the prosecutor. Does your Honour have exhibit TWF1?
HIS HONOUR: Yes.
MR DOUGLAS: The operative paragraph is the second one:
The Acting Minister was satisfied that having regard to your past criminal record and general conduct, you are not of good character. In view of this, the Minister exercised her discretion under s 501 to cancel your visa.
That is a letter of 8 July, two days ago. If you go to Mr Fisher’s affidavit, to paragraph 2 ‑ ‑ ‑
HIS HONOUR: That paragraph answers precisely the wording of subsection(2)(a) of section 501, does it not?
MR DOUGLAS: It does, but you will find when you go to the evidence in the affidavit of Mr Fisher that the only evidence apparently made available to the Minister related to questions of past criminal conduct.
HIS HONOUR: Where do I find that?
MR DOUGLAS: If you go to paragraph 2 of Mr Fisher’s affidavit, paragraphs 2 to 6 and paragraph 8.
HIS HONOUR: But the problem is to determine whether or not, at the time that the Minister made the decision, she did in fact take into account general conduct, is that right?
MR DOUGLAS: Yes. And the inference, we submit, coming from this evidence is that she, through her representative, only expressed interest in past criminal conduct, sought no information about other conduct and arrived at a decision ostensibly based on both past criminal conduct and general conduct but in circumstances where she had given no opportunity to be heard to the prosecutor on the issue of general conduct, compared to the one episode of past criminal conduct, about which he was asked. It becomes interesting, your Honour ‑ ‑ ‑
HIS HONOUR: When was the decision made, before or after this interview?
MR DOUGLAS: One suspects that - the letter is dated 8 July, but when one looks at the evidence, it appears that it had already been made on 7 July before the interview between Ms Mortensen and the prosecutor because if you look at paragraph 3 of Mr Fisher’s affidavit he says:
At the conclusion of the interview -
on 7 July -
Ms Mortensen informed the Prosecutor/Applicant that the Respondent had made a decision to cancel his visa under section 501 of the Migration Act and had also made a decision under section 502.
So that conclusion appears to have been arrived at even before the interview took place and even ‑ ‑ ‑
HIS HONOUR: But does that lead to the conclusion that the Minister did not take into account general conduct?
MR DOUGLAS: It leads to the likely inference that that occurred.
HIS HONOUR: From what fact would you draw that inference?
MR DOUGLAS: The fact of interest only being expressed in past criminal behaviour.
HIS HONOUR: Yes. Although, if I might say so, when I look at the submission that was made to the Minister with regard to the application for bridging visa, there seems to have been a lot more on the departmental file than was discussed by ‑ ‑ ‑
MR DOUGLAS: That is so. I was about to take you to that.
HIS HONOUR: The real problem that you might have, Mr Douglas, is the question of whether or not the exercise of this power is conditioned upon the requirements of natural justice, is it not?
MR DOUGLAS: We say it is conditioned not only on those requirements but also that the Minister is required to take into account relevant considerations. Now, in our submission, where you have a person who has been granted a visa enabling him to come into Australia, he has a legitimate expectation that if he is to be deprived of that right that he has been given to travel within Australia, if he is to be deprived of it, he should be given notice of the reasons why the Minister is concerned that he continues to have a right to have the visa.
HIS HONOUR: I can understand that argument. It is just that I do not see at the moment the evidence that the Minister did not take into account what subsection (2) requires to be taken into account.
MR DOUGLAS: Let me put it this way, your Honour. One would have thought that if she were taking into account matters other than past criminal conduct, in the interests of fairness she would have raised them with the prosecutor through her delegates or her officers. The only matter raised is the question of past criminal conduct and when one looks at the later decision in respect of the bridging visa, your Honour is quite correct, there is much more information referred to in the background document provided to the Minister by the Department for that decision, but it, for example, refers to other matters which were not at any stage raised with the prosecutor but which were said by the departmental officers to be matters to which the Minister could pay attention. They included, for example, an arrest and a charge in 1968, but not a conviction, of carrying a pistol and larceny of a motor vehicle. They also included a conviction of assault in prison in 1974 and, again in 1989, an arrest but not conviction of aggravated assault.
Now these were all matters for the second decision raised with the Minister, said by her officers to be matters she could take into account, but at no stage were they matters discussed with, or raised with, the prosecutor to enable him to make submissions about them. So, I suppose one infers from that that what the Minister was concerned with was past criminal conduct and her failure to raise with the prosecutor other questions of general character suggest that she was not interested in questions of general character but was really only concerned with past criminal conduct, which we say then fails to take into account the relevant consideration of later conduct.
HIS HONOUR: Yes.
MR DOUGLAS: Of course, we also say that, as a corollary of that, the failure to give the right to be heard breaches the rules of natural justice. That is the essence of the case from the prosecutor’s point of view, your Honour.
HIS HONOUR: What is the jurisdictional question? What is the jurisdiction of this Court and what is the jurisdiction of the Federal Court?
MR DOUGLAS: The jurisdiction of this Court arises under the Constitution under section 75(v) for prerogative relief and 75(iii) in respect of claims made against a person acting on behalf of the Commonwealth. The difficulty that arises with prosecuting these proceedings in the Federal Court, which is the only other court of competent jurisdiction to review matters like this, is that the Federal Court does not now have general judicial review power over matters like this and, in particular, it does not have a general power of judicial review in respect of natural justice issues. It does not have a power of review in respect of a failure to take relevant considerations into account and it does not have a power of judicial review in respect of questions of whether a decision was so unreasonable that it could not be properly regarded as a decision.
We have referred to those issues in our written submissions in the heading numbered 4, that there is “No other judicial review or statutory remedy available”. If I could take you to the Act ‑ ‑ ‑
HIS HONOUR: I have it here, Mr Douglas. This means, in other words, that if an executive decision is voidable because it involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power, or because the repository of the power failed to take a relevant consideration into account in the exercise of the power, or because
a breach of the rules of natural justice occured, this is the only Court to which access can be had. Is that the situation?
MR DOUGLAS: That is the situation and, with respect, it is a silly situation, but that is why we are compelled to bring proceedings here.
HIS HONOUR: It is endeavouring to turn this Court into a court of first instance, obviously.
MR DOUGLAS: I know, your Honour, and it is quite inappropriate, but it is unfortunately what compels us to come here, rather than to go somewhere else, and we assiduously thought of other places we could go. For example, the Administrative Appeals Tribunal, again, is unavailable because the Minister has issued a certificate under section 502 of the Migration Act which has the effect that that tribunal cannot review the decision, and our learned friends or their clients persuaded us that it was problematical seeking to review the decision through an Immigration Review Tribunal because of the provisions of section 500(4) of the Act. So it really appears that the only way of seeking a proper review, which is undoubtedly before a tribunal which has jurisdiction to review the decision, is to come to this Court.
HIS HONOUR: Before you proceed, Mr Douglas, I may as well hear from Mr Gotterson on the question of jurisdiction.
MR GOTTERSON: If your Honour pleases, in a case of this kind, the scheme which the Migration Act provides for review of a cancellation of a visa is by way of judicial review in the Federal Court. Could I take your Honour to section 476 in the Act - firstly subsection (1) of 475:
Subject to subsection (2), the following decisions are judicially-reviewable decisions:
and paragraph (c) brings within the ambit of that subsection the decisions in question here. One then sees, in 476 and following, a scheme for judicial review, the exercise of a supervisory jurisdiction. It is reposed in the Federal Court and specified grounds (a) to (g) are nominated. It is true that they do not include the breach of natural justice or what might be called a Wednesbury ground and, in fact, your Honour will notice that by subsection (2), those grounds are explicitly or expressly excluded and, in our submission ‑ ‑ ‑
HIS HONOUR: Does that mean that voidable decisions made by the Executive Government are to be tested in this Court, and in this Court alone, if the grounds are those which are referred to in subsection (2) or paragraphs (d), (e), (f) or (g) of subsection (3)?
MR GOTTERSON: In our submission, your Honour, no, and that it would contort the Migration Act to interpret it as deliberately intending that decisions of this kind are amenable to judicial supervision by the High Court only, and when either of (a) or (b) in subsection (2), the Wednesbury ground or breach of the rules of natural justice, occur. The more comfortable and conformable - or interpretation which conforms to reason, in our submission, is that it is intended that decisions of this kind not be reviewable by any court on those grounds.
HIS HONOUR: Not be reviewable by any court?
MR GOTTERSON: Yes, your Honour, not be reviewable certainly by the Federal Court, because it says it cannot be. The scheme contemplates review only by the Federal Court in the specific sense it excludes those grounds and so, in our submission, one does not interpret it all as meaning that one is intended to go to the High Court when the grounds in (a) or (b) of subsection (2) in 476 are to be agitated.
HIS HONOUR: Let me understand this correctly, Mr Gotterson. Are you making the submission that this Court has no jurisdiction either?
MR GOTTERSON: Yes, your Honour. It is intended that, in regard to those grounds, neither the Federal Court nor the High Court have jurisdiction.
HIS HONOUR: How would you square that with the provisions of the Constitution?
MR GOTTERSON: Your Honour, the provisions of the Constitution, of course, grant the High Court in its original jurisdiction the powers to grant the prerogative relief by way of prohibition, by way of mandamus, but that is not to say that there cannot by way of legislation be limiting of grounds on which the relief may be granted.
HIS HONOUR: Well, Mr Gotterson, if you wish to maintain that view, no doubt it can be submitted to a Full Bench to consider it. For my part, it is a proposition which I regard as completely inconsistent with the notion of judicial review for it would isolate the Executive from judicial control in respect of acts done which are unlawful, and that cannot be, surely, the intention that one would either attribute to the Constitution or to the Parliament.
MR GOTTERSON: Your Honour, the position then is that if ‑ ‑ ‑
HIS HONOUR: If you wish to raise that argument, then by all means do so, but it will be necessary to give a notice under section 78B of the Judiciary Act.
MR GOTTERSON: Your Honour, if that is not then the case, the case is that ‑ ‑ ‑
HIS HONOUR: What submission are you making about it, Mr Gotterson?
MR GOTTERSON: Your Honour, I would have to take some instructions directly on that point.
HIS HONOUR: Then I think you should do so. It is a matter of the gravest constitutional importance to think that the proposition would be advanced on behalf of the Minister that this Court does not have the jurisdiction to control unlawful acts committed by a Minister.
MR GOTTERSON: Your Honour, I have instructions not to pursue that argument.
HIS HONOUR: Do you withdraw it?
MR GOTTERSON: I withdraw it, yes.
HIS HONOUR: Very well.
MR GOTTERSON: Your Honour, in that event, it is the case that the Federal Court, by way of judicial review under the Act, does not have power to entertain the grounds that are set out in (a) and (b) of subsection (2). I do not think I can say anything further in regard to that.
HIS HONOUR: Yes, very well. It leaves the situation thus, does it not, that this Court is the only Court with this jurisdiction which is obviously a jurisdiction that requires the consideration of what might be contested questions of fact, a jurisdiction which this Court is singularly unfitted to exercise. But if it must exercise it, as the Constitution requires, it will exercise it, though it may have to make interlocutory orders which ensure that the status quo is maintained and that liberty is protected until such time as the Court can adequately and efficiently deal with it. But so be it.
I will hear what Mr Douglas has to say next in relation to the merits. Yes, Mr Douglas.
MR DOUGLAS: On the merits, your Honour, we submit, for the reasons I have advanced already, that there are serious questions to be tried as to the proper exercise of the Minister’s powers by her which, in our submission, warrant the grant of an order nisi, at least for certiorari and prohibition of the maintenance of the prosecutor in gaol, pending the hearing of an order absolute by the Full Court. It is contended by our learned friends that the balance of convenience, in effect, suits sending Mr Ervin back to America, there to prosecute whatever claims he may have to remain here at a distance. In our submission, he has been at least arguably unwarrantably interned. That should not have happened and if an order nisi is to be granted, the appropriate relief is to put him at liberty pending a hearing of the matter before a Full Court.
HIS HONOUR: Why before a Full Court, Mr Douglas? If there are contested questions affecting ‑ ‑ ‑
MR DOUGLAS: Not necessarily, your Honour. No, your Honour is quite right, and there is power in a single Judge to hear the application for an order absolute as well under the High Court Rules. So it could be made returnable before a single Judge. I suppose I said before a Full Court, because that is what often happens.
HIS HONOUR: That is what happens where there is no question of fact involved. But do I understand that there are questions of fact involved which require the consideration of particular issues?
MR DOUGLAS: Yes, there appears to be a factual issue about the issue of executive clemency, although that may not be as central to our submissions as our learned friend contends. There may be factual issues about the extent of the material which the Minister considered when arriving at her decision because we have not had discovery of documents or any documents provided on freedom of information requests yet in respect of that decision. So potentially there are contested issues of fact.
Might I just say something, your Honour, about what my learned friend said before about jurisdiction. It just cannot be right, when one looks at section 486 of the Act - that is the section that makes the jurisdiction of the Federal Court exclusive - but it says:
other than the jurisdiction of the High Court under section 75 of the Constitution.
HIS HONOUR: I do not think I need trouble you on this score, Mr Douglas.
MR DOUGLAS: Thank your Honour.
HIS HONOUR: Apart from orders nisi, what other orders are you seeking?
MR DOUGLAS: If we received orders nisi, we would hope that the Commonwealth would co-operate in putting the prosecutor at liberty. If there were to be a problem there we would also seek an order nisi for a writ of habeas corpus. At the moment, all we seek is certiorari in respect of the decisions, that they be quashed, prohibition in respect of his remaining in prison pending a hearing ‑ ‑ ‑
HIS HONOUR: Prohibition in respect of what order, Mr Douglas?
MR DOUGLAS: We have phrased it as prohibition to prevent her from detaining or permitting the prosecutor to be detained consequent on her decision to cancel the visa. It was a consequence of her decision to cancel the visa that the Minister’s officers then took the prosecutor into custody.
HIS HONOUR: Does that not follow by operation of the statute?
MR DOUGLAS: Yes, it does.
HIS HONOUR: So that until the decision to cancel the visa is set aside, is there any alternative but allowing the statute to operate?
MR DOUGLAS: We would, I suppose, submit that if an order nisi for certiorari is permitted to quash it, pending the showing of cause by the respondent why an order absolute should not be granted, it should be a consequential relief from that that the prosecutor be put at liberty, either pursuant to a writ of habeas corpus or, perhaps, because the Minister should be prohibited from continuing to detain him.
HIS HONOUR: I hear what you say but I am not sure that that is a correct proposition, having regard to the language of the Act. Have you any authority to support it?
MR DOUGLAS: No, not off hand. But there would be authority in respect of the claim for habeas corpus that the prosecutor be put at liberty pending the determination of the claim for an order absolute in respect of
that. If you look at Lim’s Case which is referred to in our written submissions, a reasonably recent decision of the Court, it ‑ ‑ ‑
HIS HONOUR: Which case?
MR DOUGLAS: Lim v Minister for Immigration (1992) 176 CLR 1.
HIS HONOUR: Yes.
MR DOUGLAS: It was really authority for the proposition that the Court could not be prevented from releasing from custody persons detained unlawfully. We would be submitting that the prosecutor is detained unlawfully because of the erroneous nature of the Minister’s decision and that pending a final hearing of that, he should be put at liberty.
HIS HONOUR: That is an argument that pays scant attention to the language of the Act, is it not? I mean, the question of whether he is held unlawfully or not depends entirely upon whether or not there is a valid decision. Unless and until the decision is set aside, does not the Act require him to be kept in custody?
MR DOUGLAS: Yes. If that is the problem then, your Honour, one has to then go to the step of giving an order nisi for mandamus, requiring the Minister to issue, for example, the bridging visa that was sought or to give a mandatory injunction that the Minister issue such a bridging visa, pending the determination of the validity of her decisions.
HIS HONOUR: That seems to be a substantial submission, Mr Douglas, which needs some support also, I should have thought.
MR DOUGLAS: I cannot give you an authority where that has occurred but it is probably a logical consequence of the structure of the Act, if one were not to agree with my earlier submissions.
HIS HONOUR: Yes. Have you anything further to add?
MR DOUGLAS: No, your Honour.
HIS HONOUR: Yes, Mr Gotterson, what do you have to say about the merits of the application and the relief that is sought?
MR GOTTERSON: If your Honour pleases, the order nisi, even if granted, of course, does not have operative effect and until some order quashing the decision to cancel is made, of course, your Honour, may we respectfully submit, must view the matter this way, that the applicant has been kept in detention, having been detained under section 189(1), has been kept in detention pursuant to section 196, indeed, as that section requires. Section 189(1) provides that:
If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.
Your Honour has the affidavit of the deponent from the Department who has sworn to that. Then the Act goes on to provide, in 196:
An unlawful non-citizen detained under section 189 must be kept in immigration detention until -
either of the events in (a), (b) or (c) occurs. So, addressing that point first, your Honour ‑ ‑ ‑
HIS HONOUR: Mr Gotterson, what is the meaning of “immigration detention”?
MR GOTTERSON: I am not sure, your Honour, that it is statutorily defined but I will obtain some instructions on that.
HIS HONOUR: It is in section 5, it seems
MR GOTTERSON: It is defined in section 5, yes, your Honour, by a ray of methods prescribed there. Now that, in our submission, your Honour, is what must happen according to the operation of the Act until any quashing occurs.
I should say, your Honour, too, to complete the picture, section 198 then provides that:
An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.
And then particularly in subsection (6):
An officer must remove as soon as reasonably practicable an unlawful non-citizen if -
and then certain provisions apply. The circumstances here are within the prescriptions in that section, your Honour. So, the Act, according to its operation, would require removal. So, those events would flow.
HIS HONOUR: What is the factor which makes the prosecutor come within one or other of those provisions to which you have just referred?
MR GOTTERSON: In subsection (6), your Honour?
HIS HONOUR: Yes.
MR GOTTERSON: All of them, your Honour: he is a detainee, (a); (b), he has made a valid application and, (c)(i) applies, it has been refused; and (d) also applies, and he has not made another valid application.
Then, your Honour, the matters, so far as exercise of any discretion is concerned, are addressed in the submissions that we sent to the Court, really, at paragraphs 13 and following.
HIS HONOUR: I must read these, Mr Gotterson, before you proceed.
MR GOTTERSON: Yes, if your Honour pleases.
HIS HONOUR: First of all, what do you say about the grounds of the application for the order nisi, that is, failing to take into account appropriate considerations and a failure to accord natural justice?
MR GOTTERSON: I am sorry, your Honour, I did deal with those a little out of - I am afraid I failed to deal with that. So far as taking into account factors are concerned, could I address your Honour’s attention to exhibit 3 of Ms Mortensen’s affidavit. That is the minute that deals with the first in time of the decisions including the decision as to good character. Your Honour will note - perhaps taking up from paragraphs 10 and following - that the canvassing of the issues is not confined in a way which puts the decision solely in terms of reference to past criminal record but really does extend beyond that well and truly. Not only is the matter correctly stated, we would submit, in paragraph 11 in terms of this way:
you may consider that his conduct in committing the offences -
that are referred to -
which are significant offences, to be a tangible reflection of his moral qualities and indicate on the basis of his criminal record, that he is not of good character.
Then there is a reference to general conduct, namely matters:
which has brought him to the notice of law enforcement authorities -
to have reflected -
poorly on his character.
But, also, your Honour, there is, on paragraph 13 - if we might put it this way - countervailing considerations or factors which brought to the Minister’s attention and which the Minister was aware at the time of the making of the decisions.
I might say, your Honour, that the minute indicates that that decision was made on 8 July 1997. So, it is not a case at all of a decision‑making process which focused blindly or very narrowly, I should say, on one factor and one factor alone. It certainly was a process which extended well and truly beyond that and fairly took into account what I have called “countervailing factors”.
Your Honour, in regard to the second minute of decision, decisions made on 9 July, a similar pattern also is shown and one would draw your Honour’s attention to paragraph 18 on page 3 over to 4 which also brings countervailing considerations to the Minister’s attention.
HIS HONOUR: Where do I find the Minister’s basic decision under section 501?
MR GOTTERSON: Your Honour, it is done in this way - on exhibit 3, on page 5, and it is done in a form of prepared answers in the alternative and the Minister indicates which of the alternatives, the positive or the negative, is the decision.
HIS HONOUR: I see.
MR GOTTERSON: It takes that form, your Honour. It is preceded by a recommendation on page 4 as to not how each question should be answered but that a determination - four kinds of determination are ones that are to be made on the basis of the material. Your Honour, that, in summary, is the evidence that I wish to draw your Honour’s attention to on the question of consideration of the range of issues in making the decision.
So far as natural justice is concerned, your Honour, the position is that there was no pattern followed of putting facts to Mr Ervin eliciting responses before a decision was made. However, your Honour, this may be viewed as a case in which, arguably in an instance, at least, where somebody has obtained entry into Australia by not answering questions which ought to be answered, relevant questions which, if answered, would, on the evidence that we would lead, lead to a rejection or a refusal of a visa, that in those circumstances the scope for the operation of natural justice at least in so far as the very matters that should have been disclosed is concerned is limited, if not excluded, and it is not a matter that would weigh greatly in the consideration of things.
HIS HONOUR: If the material which is in LM3 was the material that was considered by the Minister in making the decision to which you have drawn my attention, why was it not necessary and practical to draw to the attention of the prosecutor the matters which are set out in that minute in order that the prosecutor might answer to say whether they were true or false or whether there was some explanation of them?
MR GOTTERSON: Your Honour, so far as the truth or falsity is concerned, the truth of them, so far as the convictions are concerned, is admitted. One might say it is a case of what point would be served by it.
HIS HONOUR: That is the convictions but that is not the only matter that is here, is it? There are three or four pages of material dealing with his character as revealed by his conduct which, as I understand it, you are saying the Minister took into account.
MR GOTTERSON: Yes, your Honour.
HIS HONOUR: Then, the matters relating to his conduct, apart from his conviction, if they were matters which the Minister proposed to take into account and did take into account, why is it not incumbent to allow the prosecutor an opportunity to deal with those matters?
MR GOTTERSON: Largely, or significantly, your Honour, they are matters that really do fall into the category of the countervailing factors; ones that might - - -
HIS HONOUR: What, that he was arrested and charged but not convicted of carrying a pistol, that that is in favour of him?
MR GOTTERSON: I have in mind, your Honour, the ones in paragraphs 13 and 18 respectively.
HIS HONOUR: You may have it in mind, Mr Gotterson, but I am asking you to address the matters other than the conviction.
MR GOTTERSON: Your Honour, I cannot make any submission in regard to the other matters.
HIS HONOUR: Well, there are two questions: the first is, is the power which is conferred subject to a requirement of natural justice and, secondly; if so, was natural justice done? Now, what are your submissions on those two questions? On the first question, I would be grateful if you could distinguish this case from Kioa.
MR GOTTERSON: Your Honour, I cannot make any useful submission by way of distinction.
HIS HONOUR: Then, on that footing, there was an obligation to accord natural justice which has not been observed.
MR GOTTERSON: I could not submit to your Honour that natural justice had been observed in regard to all matters.
HIS HONOUR: Nor could you submit, as I understand it, that there was not a requirement to accord natural justice.
MR GOTTERSON: I cannot take your Honour to any provisions in the Act which specifically exclude the application of the rules of natural justice to decision making of this kind.
HIS HONOUR: Is there anything that should lead to the conclusion that the power was not conditioned upon the according of natural justice?
MR GOTTERSON: Your Honour, I am not in a position to have rehearsed or to have explored every avenue or every available argument, it is far too brief a time, or acquaintance with the Act.
HIS HONOUR: Yes, I can understand that. Two questions then arise: at the moment if one is unable to distinguish this case from Kioa in terms of the requirement of natural justice and there is material which suggests that natural justice was not accorded, there would seem to be an unanswerable case at least for an order nisi and perhaps for a peremptory order absolute. Now that is not an order which ought to be made if there are some considerations which, on your side of the bar table, need to be developed in order to be put. On the other hand, there would be no purpose in delaying the proceedings if they were not going to lead to some useful contribution yet to be made.
MR GOTTERSON: Your Honour, at this point I can repeat only what I have said. The acquaintance and review or examination of the law is, from our side, insufficient by reason of time and I cannot say that all avenues have been explored; all possible submissions have been considered.
HIS HONOUR: Do you wish to have an adjournment?
MR GOTTERSON: Yes, for 5 or 10 minutes, if I could, your Honour.
HIS HONOUR: Yes, very well. I think there are some telephonic communication between the court room in Brisbane and the Court here in Canberra. So, perhaps if you could inform the appropriate officer there; I will resume as soon as you inform me accordingly, Mr Gotterson.
MR GOTTERSON: Thank you, your Honour.
HIS HONOUR: The Court will adjourn briefly.
AT 4.33 PM SHORT ADJOURNMENT
UPON RESUMING AT 5.04 PM:
BRENNAN CJ: Yes, Mr Gotterson.
MR GOTTERSON: If your Honour pleases, I have received some instructions and they are to seek an adjournment until tomorrow morning to allow time for us to research and prepare properly, fully, submissions on the question of natural justice, particularly directed to the issue of why the matter may be distinguished from Kioa and why the rules of natural justice ought not to apply in this instance. I must make that application, your Honour, because of the very short time that, from our side, we have had and I am afraid insufficient time to prepare it properly.
HIS HONOUR: Yes. I will hear what Mr Douglas has to say about it. There is, of course, the question of the removal of the prosecutor in the meantime. Is there anything to be said about that?
MR GOTTERSON: There is, your Honour. My client is prepared to undertake not to remove the prosecutor while the matter is being heard before this Court.
HIS HONOUR: Yes, very well. Thank you, Mr Gotterson. Yes, Mr Douglas.
MR DOUGLAS: Your Honour, we have resisted - the prosecutor has been imprisoned now for two days. This will make it a third day. The natural justice argument is really a very strong one and there is nothing, in our submission, that could be said to distinguish this from Kioa’s Case and there is nothing possible on the evidence, from what we have seen, to suggest that the material on which the Minister relied, as we discover now, should not have been put to the prosecutor, there being an opportunity to do so and it being appropriate that it should have been done. There is really nothing, in our submission, that we can see that would advance the case in any way at all which would justify an adjournment even over night. It is a very significant effect on the prosecutor’s rights to keep him in a prison when he otherwise was at liberty to travel around Australia for the period of his visa.
HIS HONOUR: Mr Douglas, if I might say so, it seems to me that the only relief which will be of assistance to you is one which grants an order absolute in respect of the basic decision.
MR DOUGLAS: I think your Honour is probably right.
HIS HONOUR: Your order nisi seeks only an order nisi and the question is one, no doubt, of considerable significance to the prosecutor but the question of the control of immigration by the Minister is equally a matter of importance and, in the circumstances, I think the Minister ought to have the time in order to consider the important question of whether this power is one which is conditioned by the requirement of natural justice.
MR DOUGLAS: If your Honour pleases. Does your Honour have any idea of when the Court might be able to reconvene to hear the further argument?
HIS HONOUR: The Court will reconvene tomorrow morning, Mr Douglas. I mean, this is a matter which concerns a question of the removal of the prosecutor; it also concerns the question of his liberty, something that the Court cannot allow to go on indefinitely, but I must say that so long as the legislation is in the form in which it now appears to be, which deprives the Federal Court of jurisdiction, it will be necessary for this Court to consider the form of interlocutory orders which it will have to devise to deal with cases of this kind in order to ensure that it can perform the remainder of its constitutional functions, but I do not think I need say any more about that at the moment.
In the circumstances, I propose to grant Mr Gotterson his application for adjournment and I will do so until tomorrow morning. Is there any time tomorrow morning which is suitable on your side of the bar table?
MR DOUGLAS: I suppose the earlier the better, taking into account another commitment I have tomorrow, your Honour.
HIS HONOUR: Well, the other question is whether it will be in Brisbane or in Canberra, Mr Douglas, but I will hear what Mr Gotterson has to say about that.
MR DOUGLAS: Thank you, your Honour.
MR GOTTERSON: Your Honour, I have no submissions as to time or venue. So far as time is concerned, all I did ask for was the benefit of the evening to look at the matter and I cannot add anything more to that.
HIS HONOUR: Yes. In that case I propose to adjourn the application until 9.30 tomorrow morning. It can continue on this video link provided it is satisfactory to counsel in Brisbane. It is satisfactory on this end. Are you receiving the picture and the sound satisfactorily in Brisbane? First you, Mr Douglas.
MR DOUGLAS: Yes, your Honour.
HIS HONOUR: Mr Gotterson?
MR GOTTERSON: Very well, your Honour.
HIS HONOUR: Thank you. The Court will adjourn until 9.30 tomorrow morning. The applicants and the respondents will appear in Brisbane, and the Court will sit in Canberra.
AT 5.10 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 11 JULY 1997
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