Gamage, In the matter of a proposed application
[2009] HCATrans 309
[2009] HCATrans 309
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth
In the matter of ‑
a proposed application by INDRAJABANDU GAMAGE
HAYNE J
TRANSCRIPT OF PROCEEDINGS
FROM MELBOURNE BY VIDEO LINK TO PERTH
ON TUESDAY, 24 NOVEMBER 2009 AT 12.02 PM
Copyright in the High Court of Australia
MR I.S.V. GAMAGE appeared in person.
MR P.R. MACLIVER: May it please the Court, I appear on behalf of the respondent. (instructed by Australian Government Solicitor)
CELIA COORAY, affirmed as interpreter:
HIS HONOUR: Now, Mr Gamage, you have no lawyer appearing on your behalf today. Is that right?
MR GAMAGE: That is right, your Honour.
HIS HONOUR: You have no migration agent who appears on your behalf. Is that right?
MR GAMAGE: That is true.
HIS HONOUR: Yes. Now, Mr Gamage, as you are aware, as you know, I made some orders on 20 November 2009 and I fixed today as the day for you to seek an extension of time, that is, to extend the time during which the Minister must keep you in Australia. Do you understand that? Perhaps, Madam Interpreter, if you would be good enough to help him? Do you understand that?
MR GAMAGE: Yes, your Honour.
HIS HONOUR: You have submitted for filing an application for special leave to appeal. Is that right?
MR GAMAGE: Yes, your Honour.
HIS HONOUR: In that application you seek to appeal from the orders of Justice McKerracher refusing to allow Mr De Alwis to speak on your behalf and you seek to appeal from Justice McKerracher’s refusal to give you an injunction.
MR GAMAGE: Yes, your Honour.
HIS HONOUR: In support of your application you have filed an affidavit, or sought to file an affidavit. Is that right?
MR GAMAGE: Yes, your Honour.
HIS HONOUR: It is that affidavit of 23 November which you rely on. Is that right?
MR GAMAGE: That is right, your Honour.
HIS HONOUR: Yes. Mr Gamage, now is the time for you to tell me what you want to say in support of your application.
MR GAMAGE (through interpreter): I am a foreigner and I am currently on a student visa. I have been charged illegally and I am a refugee. I am a helpless person. I am depressed. I am not a lawyer. I write to all these courts. I have been to the High Court, Federal Court. My two brothers help me with all the paperwork. Both of them are in Sri Lanka. The Sri Lankan lawyers are not aware of the law here. I am asking your Honour from this Court today – I am asking a family friend, Mr Richard De Alwis – for Mr Richard De Alwis as an amicus curiae or as a McKenzie friend – I am requesting you as amicus curiae or a McKenzie friend and leave by this Court to appear for Mr Richard De Alwis firstly to make a submission as to why I may be granted leave and an application by Mr Richard De Alwis to participate as an…..and first to make a submission as to when the Court may grant me leave to be as an intervener in these proceedings.
HIS HONOUR: Yes.
MR GAMAGE (through interpreter): I humbly ask your Honour to grant me this permission today.
HIS HONOUR: Yes. Well, you want Mr De Alwis to speak on your behalf. Is that right?
THE INTERPRETER: Yes, he wants Mr De Alwis to speak on his behalf.
HIS HONOUR: Yes. Is Mr De Alwis in Court?
THE INTERPRETER: He is present in Court.
HIS HONOUR: Yes. Perhaps then, Mr Gamage and Madam Interpreter, if you would be good enough to take your seats again. Mr De Alwis, would you come to the microphone please? Mr De Alwis, Mr Gamage has asked that I give you leave to speak on his behalf. Are you a lawyer?
MR DE ALWIS: I was, your Honour. I was a lawyer admitted in Sri Lanka in 1973, August, then I came to Australia in July 1984 to do post‑graduate studies at the Monash University, and I was helped by His Excellency, Justice…..to do international law and administration of criminal justice. Then I had certain personal difficulties, family problems, then we went to Sydney where I resumed my post‑graduate studies.
HIS HONOUR: Mr De Alwis, my question was quite narrow. Are you a lawyer admitted to practice in the courts of Australia?
MR DE ALWIS: That is right, your Honour. I give a brief background to my experience and knowledge.
HIS HONOUR: Mr De Alwis, we will get on much quicker if you attend to my question and answer it.
MR DE ALWIS: I apologise, your Honour. I was admitted in Western Australia to the Supreme Court as a barrister and solicitor on 2 March 1995, and I did practise as an immigration lawyer, international law lawyer, human rights lawyer, and before that in Melbourne and Sydney and here too I worked as a migration agent; I was very successful. Then I appeared for a man called Mr Neville Taylor, and according to the advice I have from him, he refused to make a complaint against me when approached by the law complaints officer. His wife was approached by the law complaints officer, and a complaint was made that I misappropriated $10,000, which I vehemently denied and today also I deny. I denied it in the Federal Magistrates Court. I have denied it in the Federal Court when the matter was taken up regarding Mr Gamage. Unfortunately, from mid‑2000 I was feeling very dizzy and began collapsing, and until 2002, the 21st night of August, 2002, no doctor, nobody advised me that I was bleeding profusely from my bowels due to stomach ulcers.
HIS HONOUR: Mr De Alwis, I do not wish to embarrass you by delaying about the state of your health. My question is very narrow. Are you a person entitled to practise as a barrister or solicitor in the Supreme Court of a State or in the Federal Courts?
MR DE ALWIS: No, your Honour. I was struck off the roll.
HIS HONOUR: Yes, you were struck off the roll. Are you a registered migration agent?
MR DE ALWIS: No, I am not, your Honour.
HIS HONOUR: What then is the basis upon which you would seek to speak on behalf of Mr Gamage?
MR DE ALWIS: Because of the unique and very rare kind of circumstance that Mr Gamage is in, Mr Gamage’s brothers who are lawyers in Sri Lanka approached me when I had gone there to Sri Lanka to take what is called Ayurvedic treatment for the injuries I have sustained in three accidents, and they told me in 2006 the circumstances of Mr Gamage’s case, so I telephoned a large number of law firms here and I became involved in the matter to try to help him, and from that time ‑ ‑ ‑
HIS HONOUR: Well, do I understand you to say that you have been asked to help him by members of his family?
MR DE ALWIS: Absolutely right, your Honour.
HIS HONOUR: Well, Mr De Alwis, you may for the time being speak on behalf of Mr Gamage, but I wish to make some things plain.
MR DE ALWIS: Yes, your Honour.
HIS HONOUR: It is a matter for you, and only for you, to consider whether by seeking to speak on behalf of Mr Gamage you put yourself at any risk of committing any offence under Western Australian legal practitioner law. I have no view about that. I simply say to you that those are questions for you. Second, you will confine yourself and confine yourself entirely to speaking on behalf of Mr Gamage. You will not, on any account, introduce any issues that are not related directly to the case of Mr Gamage. Do you understand me?
MR DE ALWIS: I do, your Honour.
HIS HONOUR: Yes. Very well then, what is it you wish to say on Mr Gamage’s behalf today in relation to whether I should extend the injunction which I granted on 20 November last preventing his removal from Australia?
MR DE ALWIS: Before we get to that may I have your Honour’s indulgence to say one thing, your Honour? A few things have been mentioned in the two judgments of the Federal Magistrate, his Honour Lucev, and the Federal Court judge, his Honour McKerracher, and because of that may I be permitted to file papers to become an intervener in these proceedings as well?
HIS HONOUR: I will not give you that leave. I have not seen the papers you wish to file. The application for leave to intervene on the face of things is not relevant to the immediate issue that falls for my consideration today. The only issue which is before me at the moment is whether I should extend the injunction, which I granted on 20 November, preventing Mr Gamage’s removal from Australia by the Minister. That is the only issue before me.
MR DE ALWIS: Yes, your Honour. Mr Gamage received the two judgments, both the federal magistrate’s judgment and the Federal Court’s judgment, only in the afternoon yesterday, which we received only late in the afternoon, I think about 3.40 or something, when his brother and I visited him in the detention centre. He requested us to visit him late in the evening yesterday to – via telephone, he had telephoned his brother and asked him to come there, so we went there at about 7.45 in the night and he said that he had been served with another large book by the Australian Government Solicitor and that is this book – may I show your Honour? I am sure your Honour has a copy of that one.
HIS HONOUR: Does that include an affidavit by Arran Niall Gerrard, sworn on 23 November, together with accompanying exhibits?
MR DE ALWIS: That is right, your Honour.
HIS HONOUR: Is there any reason why I should not read that affidavit?
MR DE ALWIS: Your Honour’s Court may read, but Mr Gamage in fact has advised me that if I am granted leave then I must on his behalf move for further time to respond to that and to file affidavits in reply.
HIS HONOUR: Are you able to say what are the subject matters, what are the subjects, that Mr Gamage wishes to contradict, explain or supplement?
MR DE ALWIS: In fact, I refuse to discuss anything until I am granted leave. May I talk to him with your Honour’s permission?
HIS HONOUR: You may talk to him, yes.
MR DE ALWIS: Yes. Thank you, your Honour. Mr Gamage wishes to submit to your Honour’s Court, very respectfully and very humbly, that he has not been able to find any lawyer at all, and he made an application to the Federal Court to provide him with a pro bono lawyer. He gave a letter, and even that was refused. His application for a grant of legal aid to seek leave from the High Court even has been refused by the Legal Aid Commission, and in fact I made inquiries and they said not to bother even, and they do not have funds. Then I spoke to several lawyers in this State, and even in other States like Melbourne and Sydney and even Queensland to a few lawyers I know, and nobody is willing to do any pro bono work or free work at all.
This man says that he has no money at all, he has spent a large sum of money, he is indebted to the tune of about $90,000 to his family already and also some friends, and that he wishes to put all those things into writing as a reply to the affidavit by Mr Arran Niall Gerrard of the Australian Government Solicitor’s office and that there are several important issues raised in his affidavit and he says that grave prejudice will be caused unless he is granted time to respond to the matters raised in that. May I have your Honour’s permission for a few minutes to glance through the papers, your Honour?
HIS HONOUR: Well, Mr De Alwis, you are there seeking to speak on behalf of Mr Gamage. Is that right?
MR DE ALWIS: Yes, your Honour, but I refuse to read anything until I get leave. That is the reason, your Honour.
HIS HONOUR: Well, Mr De Alwis, I do not propose to interrupt the further hearing of the matter on that account. Are you able to inform me of what are the matters which Mr Gamage wishes to contradict, to supplement or amplify in relation to the affidavit relied on by the Minister? I understand that he wishes to have material before me telling me that he has not been able to find any lawyer despite very elaborate and full attempts to do so. I understand that, and subject to anything that may be said on behalf of the Minister, I do not yet see why I should not act on that assumption. Leave that aside, what else, if anything, does Mr Gamage want to contradict, supplement or amplify in the affidavit?
MR DE ALWIS: Yes, your Honour. Paragraph 5 he disputes in the affidavit.
HIS HONOUR: Yes.
MR DE ALWIS:
On 3 October 2003 the applicant’s student visa was cancelled under s 116 of the Migration Act1958 (the Act) for not maintaining enrolment in a registered course.
Now, he has told me before, before the Federal Court and the Federal Magistrates Court hearing, that that was not the case. His student visa was cancelled because the Migration Department, Immigration Department, said that he was working, and that is why he went to the Migration Review Tribunal as reflected in paragraph 6, and the applicant’s visa was reinstated with the full lawful right until date of 30 July 2004. So he won that case. In fact, I have read the judgment in that one too.
HIS HONOUR: Yes. What else does he seek to contradict?
MR DE ALWIS: Yes, your Honour. May I talk to him for a few minutes?
HIS HONOUR: Mr De Alwis, these proceedings are not going to be assisted by your interrupting at every interval to discuss the matter with Mr Gamage. Either you are in a position to speak on his behalf or you are not. Are you in a position to speak on his behalf?
MR DE ALWIS: Yes, your Honour. In fact, that is why – I want to make sure that I tell your Honour’s Court the right thing, and exactly the truth and nothing but the truth. I want to make sure about the dates. Now, he has told me on occasions before that he has applied to the High Court. His first application was not accepted for something like six months when his brother, Dr Sam Gamage, went to lodge that at the High Court Registry in Perth and I accompanied and it was accepted, then after March time had been spent on that amending and all that.
It was finally accepted and given a number, P35 of 2009, and then that was deemed abandoned, he says unfairly, before the lapse of the time given within which he can file the written case because he has to get all those things prepared in Sri Lanka and brought here and filed. Then he – after it was deemed abandoned he refiled the papers. They were again accepted and given a new number, P41 of 2009, and that is ‑ ‑ ‑
HIS HONOUR: I have that file and you may assume that I am generally familiar with its content.
MR DE ALWIS: Thank you very much, your Honour. That helps a lot. Now, he says that he is entitled to a criminal justice visa therefore, and as your Honour knows, he cannot apply for the criminal justice visa. It is up to the authorities, particularly the DPP WA, because DPP WA represents the State of Western Australia, and DPP WA was informed about the P41, and the DPP WA has filed his notice of appearance, which I am also aware of.
Then his next point is that against the cancellation of his student visa he appeared to the Migration Review Tribunal, and the Migration Review Tribunal unfairly refused to grant an extension of time to file my written statement in support of evidence. Also all his material could not be filed because I met with an accident, had a brain injury, and I was very ill. I sent medical certificate, or the hospital discharge letter. I faxed it to the Migration Review Tribunal, and then he has gone to the Federal Magistrates Court against that decision, and there is a number given, PEG – I cannot recall the number, your Honour, off my head. Anyway, it is in place.
He submits to your Honour’s Court that if he succeeds in the Federal Magistrates Court, then he will be able to resume his studies at the Edith Cowan University to which he has paid some $28,000 already and completed some units. He says that the Migration Review Tribunal has held that the respondent Minister has failed to inform him properly, or at all, the reasons or the decision to cancel his visa. In fact, he tells me that he came to know about it only when an immigration officer visited him in the Acacia Prison a few months ago about the cancellation, and intention to cancel his visa was never received and he could not respond to such an intention to cancel because of that. So the Migration Review Tribunal held in his favour on that issue.
The Migration Review Tribunal also held that if he persuades the Migration Review Tribunal that he had exceptional circumstances as to why he could not continue his studies at the Edith Cowan University until now, then the Migration Review Tribunal has the power to reinstate that student’s visa. I was too ill so I got my wife to fax the file, the whole file, from the Royal Perth Hospital, the Fremantle Hospital, and the Graylands Hospital and his file from the Legal Aid Commission and the university files that he had received. Now, he applied under FOI to get his files from the university but he got only the files other than 2005 and 2006, so therefore ‑ ‑ ‑
HIS HONOUR: Mr De Alwis, we are straying a long way from the point.
MR DE ALWIS: I apologise, your Honour.
HIS HONOUR: One of the issues that has to be dealt with and considered is whether there is any reasonable prospect of success of obtaining special leave to appeal to this Court. That ‑ ‑ ‑
MR DE ALWIS: That is what I am – I am sorry.
HIS HONOUR: Mr De Alwis, you will be quiet when I speak, do you understand me? You will be quiet.
MR DE ALWIS: I am sorry, I apologise, your Honour. It takes a few seconds to get here, your Honour’s voice.
HIS HONOUR: Silence would be better on your part, Mr De Alwis. Now, be silent. Do you understand me?
MR DE ALWIS: Yes, your Honour.
HIS HONOUR: Now, the question of whether there are reasonable prospects of obtaining special leave to appeal requires demonstration that there is some arguable error in the decision of Justice McKerracher or in the judgment of Federal Magistrate Lucev. Can you state without development a summary of the best arguments you have that either the federal magistrate or Justice McKerracher made an error in their judgment?
MR DE ALWIS: Firstly and foremostly, your Honour, there is a fundamental question. His Honour Justice McKerracher was the member of the Legal Practitioner Disciplinary Tribunal that heard the reference against me and made an ex parte decision to report to the Full Court of the Supreme Court that I be struck off the roll, so that is one thing. The other thing is when we go to the Federal Magistrates Court, his Honour Federal Magistrate Lucev has failed to address this issue of the merits he has in his application and which in fact he has listed for directions hearing on 4 December.
Also both courts failed to appreciate what was decided in Dietrich too. The courts possess undoubted power – to read from that judgment of Dietrich, your Honour, which everybody knows thoroughly well. However, his Honour Chief Justice Mason and Justice McHugh said at the very beginning – or in the first paragraph itself:
However, the courts possess undoubted power to stay criminal proceedings which will result in an unfair trial, the right to a fair trial being a central pillar of our criminal justice system. The power to grant a stay necessarily extends to a case in which representation of the accused by counsel is essential to a fair trial, as it is in most cases in which an accused is charged with a serious offence.
HIS HONOUR: Mr De Alwis, you may assume I am familiar with Dietrich. My question was to ask you to state in summary form, without any development of the proposition, what you say are the errors that were made in the Federal Court or in the Federal Magistrates Court. At the moment I have three noted. One, Justice McKerracher was a member of the Legal Practice Tribunal. Two, the federal magistrate failed to address the issue of the merits of the application. Three, there was a failure to appreciate the principles enunciated in Dietrich. Is there any further point?
MR DE ALWIS: Yes, your Honour. The criminal justice visa cannot be applied for by the applicant, and that was not appreciated by both courts.
HIS HONOUR: Is there any other point?
MR DE ALWIS: Yes, your Honour. The Migration Review Tribunal has held that it had the power to set aside the cancellation of his student visa on 8 March 2006. Therefore if he succeeds in the Federal Magistrates Court or thereafter in the Federal Court, or even in the High Court, that he had exceptional circumstances to show then – and also that the cancellation by the Minister of his student visa on 8 March 2006 was unfair – his student visa dates back to 8 March 2006 and he can resume his studies.
Then the character check, of course, comes in. Character check is subject now to the final decision by the High Court in his criminal convictions, and that is pending too. Therefore, if he is given time – I think he has asked for a week he told me – if that week is granted he would file his affidavits, responding to all the material filed by the respondent, and he says that even a similar book was filed just before the federal magistrate heard the matter, and a further affidavit was filed in the Federal Court and he has not been able to prepare anything in response so far and therefore he wishes to get an opportunity to do so now before your Honour.
To file all the papers he needs time and he wants to get the doctor’s medical certificates, all that, and that he thinks can be arranged within a week. If a week’s time is granted then he would be able to file some reasonable papers in response to all the material that has been filed in the Federal Magistrates Court, then the Federal Court, and in this Court now, your Honour. He also says that if he is granted that time he would be able to document the merit he has in his application to the Federal Magistrates Court against the cancellation of the student visa and he would be able to document the fact that a criminal justice visa stay certificate may be applied for by the DPP and obtained for him to stay in this country until the High Court decides in his application for special leave in P41 of 2009.
Those are the main areas, your Honour. His position is that his Honour Federal Magistrate Lucev was in error when his Honour said that because of the modern technology, even if he is deported to Sri Lanka, he can participate in the process. He says that that is not practical at all considering the fact that Sri Lanka has been in a war for the last 30 years and therefore is too poor and does not have facilities as what we have here in Australia.
He also says that he is entitled to legal professional privilege, if he can find a lawyer, then he would not be able to…..when the case is going on like this. He would not be able to give his instructions confidentially to his legal representative in a manner that is suitable, and whatever he says to his lawyer will be publicly said so there will be a breach of legal professional privilege, he says. He is trying his best to find a lawyer for him to have before the High Court and before the Federal Magistrates Court ‑ ‑ ‑
HIS HONOUR: These are matters, Mr De Alwis, that we have already dealt with. Is there anything new and additional which you wish to add?
MR DE ALWIS: Your Honour, paragraph 5 of the affidavit of Mr Gerrard, he says there is an inadvertent error there.
HIS HONOUR: You have told me that already, Mr De Alwis. We are repeating ourselves. Is there anything new and additional which is to be added? You have already pointed to what you say is an error in paragraph 5.
MR DE ALWIS: I am sorry, your Honour, even I did not know this fact that he has pointed out now, that his student visa was cancelled in 2002, 3 October 2002, and not 2003, which I did not know myself until now.
HIS HONOUR: Yes.
MR DE ALWIS: So in that context, your Honour, the documents filed by the Minister, respondent Minister, seem to be not perfect, and therefore your Honour’s Court may be pleased to grant him a week’s time to respond to this, and for that he wants your Honour’s Court to grant me leave to help him with that, to prepare the documents. Now, he says that his brothers do not know the procedure here or the format, the forms ‑ ‑ ‑
HIS HONOUR: Mr De Alwis, you are repeating yourself. You have already made that point. Now is the last opportunity I will give you to answer my question. Is there anything new or additional which you wish to say in support of any of the applications by Mr Gamage this morning?
MR DE ALWIS: If he is deported, your Honour, grave prejudice which cannot be remedied – irremediable grave prejudice will be caused to him, and by not deporting no prejudice whatsoever will be caused to the Minister, and he says that he is pitted against a very strong, well‑organised Commonwealth body, and therefore he wishes further time. Also he says that what is stated at paragraph 21 should not be considered in making your Honour’s order regarding that. The fact that ticket has been purchased and arrangements have been made by the Minister should not be a criterion in deciding that matter.
HIS HONOUR: Yes.
MR DE ALWIS: That is the lot, your Honour, that I have to bring to your Honour’s notice.
HIS HONOUR: Yes, thank you, Mr De Alwis. You may resume your seat.
MR DE ALWIS: Thank you very much, your Honour.
HIS HONOUR: Yes, Mr Macliver. Mr Macliver, there are two issues. First, as I understand it, application is made for adjournment for a week. What is the attitude of the Minister to that application for adjournment?
MR MACLIVER: Your Honour, the Minister’s view would be that that adjournment would not achieve anything useful.
HIS HONOUR: Yes. Second, what do you say in answer to the application which I think we must assume is made for an extension of the injunction?
MR MACLIVER: Your Honour, the Minister would oppose a further extension of the injunction on the basis that the prospects of success of the application for special leave to appeal against his Honour Justice McKerracher’s judgment must be very slim indeed.
HIS HONOUR: Now, you have filed an outline of submissions. Is that right?
MR MACLIVER: That is correct, your Honour.
HIS HONOUR: Is there anything in addition to what appears in that outline of submissions that you would wish to say in answer to the applications that have been made?
MR MACLIVER: I do not think so, your Honour. I note that in his address to your Honour Mr De Alwis made some comments or suggestions that if the applicant was ultimately successful in his current proceedings in the Federal Magistrates Court, that is, the proceedings to review the decision of the Migration Review Tribunal, such that the Tribunal, if the matter was remitted to it, was to set aside the cancellation, that that would have the effect of reinstating the applicant’s student visa that was cancelled and it would enable him to resume his studies. That, your Honour, of course, is patently incorrect. The current application seeks to review a decision to cancel a visa on 8 March 2006 that was in any event due to expire on that date.
HIS HONOUR: Yes, I understand that point. You have made that point in your written submission. Is there anything else you wish to add?
MR MACLIVER: No, your Honour, I am content to rest on those written submissions.
HIS HONOUR: Thank you, Mr Macliver. Mr Gamage or Mr De Alwis, is there anything by way of reply that you wish to add?
MR DE ALWIS: Very briefly, your Honour. Thank you very much, your Honour, for granting me that opportunity. Although my learned friend, Mr Macliver, says that it is patently incorrect, it is not a correct submission for this reason. Mr Gamage, if he wins the case in the Federal Magistrates Court that is pending, then he can reapply to resume his studies at the university and he can ask the Minister to reissue his student visa so that the $28,000 that he has spent so far will not be in vain. Thank you very much, your Honour.
HIS HONOUR: Thank you, Mr De Alwis. You may resume your seat.
The proposed applicant, Mr Indrajabandu Samarasekara Vitharana Gamage, now holds no visa entitling him to remain in Australia. Section 198 of the Migration Act 1958 (Cth) requires his removal from Australia as soon as practicable.
In circumstances to which it will be necessary to make more detailed reference, on 20 November last, I ordered that until 4.15 pm today, or further order, the Minister not remove Mr Gamage from Australia. The immediate question for decision today is whether that order should be extended in order to preserve the subject matter of an application for special leave to appeal to this Court, which Mr Gamage has sought to file, but which has not yet been accepted as being in a form suitable for filing.
In order to understand the issues that now arise, it is necessary to record in some detail a complicated history of events surrounding Mr Gamage’s arrival in, and permission to remain in, Australia.
Mr Gamage, a citizen of Sri Lanka, arrived in Australia on 28 January 1999. He then held a student visa valid until 17 January 2001. A condition of that visa and subsequent student visas to which it will be necessary to refer was that he remain enrolled in a registered course of study during the currency of his visa.
In December 2000, and again in July 2001, Mr Gamage lodged applications for a further student visa and he was granted associated bridging visas permitting him to remain in Australia. On 3 October 2003, Mr Gamage’s then student visa was cancelled in circumstances which, I was informed today, remain controversial. It may be that that cancellation occurred not in the year 2003, but in the year 2002, but it is unnecessary to determine that issue if there be a live issue about the year of cancellation.
For present purposes, what matters is that on 29 October 2003, on review by the Migration Review Tribunal, the cancellation was set aside and Mr Gamage’s visa reinstated with an expiry date of 30 July 2004. On 30 July 2004, Mr Gamage made a further application for a student visa and that visa was granted on 6 October 2004, to expire on 8 March 2006.
On 8 March 2006, the day on which the visa last mentioned was due to expire, a delegate of the Minister cancelled the visa on the ground that Mr Gamage had failed to comply with a condition of the visa that he remain enrolled in a registered course of study during the currency of the visa.
At or about the same time, Mr Gamage was charged with two counts of indecent dealing with a child between the ages of 13 and 16 years and two counts of aggravated sexual penetration without consent. On 14 March 2006, the Director of Public Prosecutions for the State of Western Australia issued a certificate pursuant to section 148 of the Migration Act that the stay of Mr Gamage’s removal or deportation from Australia was required for the administration of criminal justice by the State of Western Australia. A criterion for a criminal justice stay visa being that “a criminal justice stay certificate about the non‑citizen is in force” – see section 157(a) of the Migration Act - a criminal justice stay visa was issued in respect of Mr Gamage.
In April 2007, after a trial in the District Court of Western Australia, Mr Gamage was found guilty of two counts of indecent dealing and one count of sexual penetration. On 3 April 2007, Mr Gamage was sentenced to eight months imprisonment in relation to the two counts of indecent dealing and two years and four months imprisonment for the offence of sexual penetration. Mr Gamage appealed to the Court of Appeal of the Supreme Court of Western Australia against his conviction, but on 4 March 2008, that court dismissed his appeal.
At the end of July 2009, Mr Gamage completed his sentence and became eligible for release from prison. On 31 July 2009, the criminal justice stay certificate issued by the Director of Public Prosecutions for Western Australia was cancelled. Cancellation of that certificate had the effect of cancelling Mr Gamage’s criminal justice stay visa. Mr Gamage therefore became an unlawful non‑citizen. Section 198(1) of the Migration Act required that he be removed from Australia as soon as reasonably practicable.
After completion of his sentence Mr Gamage was taken into immigration detention. Thereafter, on 7 August 2009, he applied to the Migration Review Tribunal for review of the decision made on 8 March 2006 to cancel the student visa that had been due to expire on 8 March 2006. On 19 October 2009, the Tribunal affirmed the decision to cancel the student visa.
Mr Gamage thereafter made a number of applications for bridging visas, each of which was refused. In August 2009, more than 16 months after the Court of Appeal of Western Australia had dismissed his appeal against conviction, Mr Gamage filed an application for special leave to appeal to this Court from the order of the Court of Appeal dismissing his appeal against conviction. That application for special leave was deemed abandoned in September 2009 on account of Mr Gamage’s failure to comply with the requirements of the Rules.
Again, the circumstances surrounding that deemed abandonment may not be without controversy, but that controversy, if there be one, need not be examined further. It need not be examined further because on 1 October 2009 Mr Gamage filed a fresh application for special leave to appeal to this Court seeking special leave to appeal against the orders of the Court of Appeal of Western Australia dismissing his appeal against conviction.
In November 2009, more particularly on 12 November 2009, Mr Gamage applied to the Federal Magistrates Court for judicial review of the Migration Review Tribunal’s decision. On 13 November, Mr Gamage was told by officers of the Department of Immigration and Citizenship that arrangements had been made for his removal from Australia on 16 November 2009 on an aircraft due to depart Australia at 3.50 pm, Western Standard Time. Mr Gamage applied to the Federal Magistrates Court for an order restraining the Minister from removing him from Australia until further order, and that application came on before Federal Magistrate Lucev on 16 November 2009. Federal Magistrate Lucev, in the course of lengthy reasons for decision, concluded, amongst other things, that:
The central findings of fact of the Tribunal were not impugned and they were findings of fact that were available to the Tribunal. They are findings of fact which do not disclose jurisdictional error and ought not be interfered with by this Court . . . The Tribunal correctly set out its task, the relevant facts and the applicant’s claims and evidence. There was no error in the Tribunal’s statement of the law and no misdescription or error in the Tribunal’s description of the applicant’s claims. Nothing in the Tribunal Decision indicates that it failed to have regard to relevant considerations or misunderstood its task.
[2009] FMCA 1146 at paragraph 20. Accordingly, Federal Magistrate Lucev concluded that there was no serious issue to be tried in relation to the grounds of the substantive application which Mr Gamage had made to the Federal Magistrates Court. The application for interlocutory injunction was dismissed.
Mr Gamage filed notice of appeal against the orders made by the federal magistrate in the Federal Court of Australia. Application was made for interlocutory relief pending the hearing and determination of that appeal. The application for interlocutory relief came before Justice McKerracher in the Federal Court on 19 November 2009. Justice McKerracher, being of opinion that no appeal lay as of right against the decision of the federal magistrate to refuse the interlocutory injunction that had been sought, treated the notice of appeal as an application for leave to appeal.
On 19 November 2009, Justice McKerracher dismissed the application for injunction to restrain the Minister from removing Mr Gamage from Australia. The application for interlocutory relief having been refused by Justice McKerracher, arrangements were made to remove Mr Gamage from Australia on the following day, 20 November 2009, at 7.40 am, Western Standard Time.
Some time later on 19 November 2009, Mr Gamage, or someone acting on his behalf, sent by facsimile to a Registry of this Court, a draft application for special leave to appeal against the orders of Justice McKerracher together with a copy of some material in support of that application. Although the application for special leave to appeal in its then form contained numerous deficiencies, principally deficiencies of form, it was evident that Mr Gamage wished to apply for special leave and that he sought interim relief in this Court preventing his removal from Australia in the meantime.
Having regard to the content of the papers that had been filed, having regard to the fact that at no time during the proceedings in the Federal Magistrates Court or in the Federal Court of Australia had Mr Gamage been represented by a lawyer, and having regard further to some aspects of the execution of the evident intention to remove Mr Gamage, which have been further revealed in the papers today, it appeared to me that the case may be one in which it would be appropriate for this Court to consider making interim orders preserving the status quo without regard to the merits of the case in accordance with principles of the kind that were engaged in Tait v The Queen (1962) 108 CLR 620.
It is to be recalled that in Tait v The Queen, a case concerning the execution of sentence of death, Chief Justice Dixon, speaking on behalf of the whole Court, said:
We are prepared to grant an adjournment of these applications without giving any consideration to or expressing any opinion as to the grounds upon which they are to be based, but entirely so that the authority of this Court may be maintained and we may have another opportunity of considering it.
As I have already indicated, there were aspects of what appeared to be the manner of execution of the intention to remove Mr Gamage from Australia that were not unimportant in determining whether an order of the kind which I made on 20 November should be made. Now that the reasons of the magistrate have become available, what occurred in the Magistrates Court is now revealed in more detail than was available at the time of events on 20 November.
In his reasons for judgment the magistrate records that before commencing to deliver his reasons for judgment the magistrate permitted the applicant to be taken to the immigration detention centre at Perth airport and arrangements were made for the reasons for judgment and orders to be pronounced by telephone. The magistrate further records that after commencing delivery of his reasons for judgment it became apparent that Mr Gamage was being moved through the airport while the reasons for judgment were still being delivered. As the magistrate records, precisely why it is that it was necessary for officers of the Minister to act in the way that they did is not apparent given that there was still and hour and a half until the plane was due to depart. The magistrate records his dissatisfaction with that course of events.
It is also to be recalled that the application for interlocutory relief having been refused by Justice McKerracher on 19 November, arrangements were made to remove Mr Gamage from Australia at 7.40 am, Perth time, on the following day. It is further to be recalled, as I have already indicated, that on 19 November, Mr Gamage, or somebody acting on his behalf, began the process to institute proceedings in this Court applying for special leave to appeal against the orders of Justice McKerracher.
The course of events that took place on 20 November may sufficiently be recorded in the transcript of proceedings in this Court, which are reported at [2009] HCATrans 305. It is sufficient to say that, having regard to the papers that were then available in the Court, I determined that it was desirable to have the Registry contact the solicitor having the carriage of this matter on behalf of the Minister and ask him to participate in an urgent hearing conducted by telephone. I indicated then, as the transcript records, that I was minded to exercise the power that had been exercised by this Court in Tait unless reason to the contrary was shown. No reason to the contrary being shown, I ordered that Mr Gamage not be removed from Australia until 4.15 pm today, or further order, and I gave directions for the further prosecution of the matter.
As was the case in Tait, those orders were made without giving any consideration to or expressing any opinion as to the grounds upon which the proposed application was to be based. The orders that were made were made entirely so that the authority of this Court might be maintained and that this Court might have a further opportunity of considering the papers which it had been sought to file in this Court.
I directed on 20 November that Mr Gamage file his application for special leave to appeal together with an application for any extension of the interim orders that he sought. The application for special leave to appeal which Mr Gamage now seeks to file is still not in a form in which it would be appropriate to receive it for filing. There remain a number of important deficiencies in the document. Nonetheless, it being evident that Mr Gamage seeks to apply for special leave to appeal to this Court, and that he seeks extension of the injunction which I granted on 20 November, it is convenient to put aside from consideration the difficulties about the papers which Mr Gamage has or has not sought to file and to deal directly with the substance of the matter.
There is no doubt that this Court has power to make orders preserving the subject matter of litigation pending in the Court or the subject matter of proceedings which it is proposed to institute in this Court. The nature and extent of that jurisdiction has been considered on numerous occasions in this Court. Reference need be made only to the judgment of Justice Brennan in Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited [No 1] (1986) 161 CLR 681 as an example of cases in which the jurisdiction has been considered and the principles that are engaged have been discussed. There is no doubt either that the jurisdiction to make orders preserving the subject matter of proceedings which it is proposed to institute in this Court is properly described as an extraordinary jurisdiction.
In considering whether it should be exercised in the present case, it is necessary to identify with some care the issues which it is sought to agitate on appeal to this Court. The application for special leave to appeal, or more accurately, the proposed application for special leave to appeal in aid of which it is said that injunction should now issue restraining Mr Gamage’s removal from Australia is an application for special leave to appeal from the orders of Justice McKerracher refusing leave to appeal to the Federal Court against the orders of Federal Magistrate Lucev refusing interlocutory relief.
In considering whether Justice McKerracher should have granted interlocutory relief it is necessary to pay close attention to whether the federal magistrate is shown to have erred in any respect. In that regard, and in regard to the, perhaps, subsidiary, but certainly allied question of whether it is arguable that Justice McKerracher erred in any respect, I asked Mr De Alwis, who spoke on behalf of Mr Gamage in this application, to identify the points of error upon which reliance was placed. Mr De Alwis sought to identify six points of error.
First, he submitted that Justice McKerracher, having been a member of a legal profession practice tribunal which had dealt with Mr De Alwis in a fashion which led to Mr De Alwis ultimately being struck off the roll of legal practitioners, should not have sat in the application. Second, he submitted that the federal magistrate failed to address the issue of the merits of the application for review of the Migration Review Tribunal decision. Third, he said that neither at first instance in the Federal Magistrates Court, nor in the application for leave to appeal to the Federal Court, had sufficient attention been given to principles of the kind enunciated by this Court in Dietrich v The Queen. Fourth, he submitted that the fact that Mr Gamage could not apply directly for a criminal justice visa had not been appreciated by either court. Fifth, he submitted that the Migration Review Tribunal, having held in its earlier consideration of another application for review by Mr Gamage that it could set aside cancellation of a visa and order issue of a new visa, should be taken to have decided that in the present case Mr Gamage could, on success in the Migration Review Tribunal, obtain the grant of a new student visa. Lastly, Mr De Alwis pointed to the difficulties that Mr Gamage would encounter in dealing with his pending application for special leave to appeal against the orders of the Court of Appeal of Western Australia dismissing his appeal against conviction were Mr Gamage to be removed to Sri Lanka.
For present purposes, it may be sufficient to deal with each of the points in the following summary fashion. First, the fact that Justice McKerracher may have been a member of the legal profession tribunal that dealt with Mr De Alwis provides no base for an argument that the decision of Justice McKerracher to refuse interlocutory relief is arguably infirm. Second, as to the proposition that the federal magistrate failed to address the issue of the merits of the application for review of the decision of the Migration Review Tribunal, it is sufficient to say that the federal magistrate did address the issue of those merits at some length in a fashion which, as at present advised, seems not to be open to criticism.
Third, account must no doubt be taken of the fact that Mr Gamage has not been represented by a lawyer at any stage of the process. I have no reason to think that taking that fact into account and giving full weight to it that there is any reason to conclude that the decisions reached in either the Federal Magistrates Court or in the Federal Court of Australia are infirm.
Fourth, as for the question of whether Mr Gamage could, if he were successful in obtaining review of the decision of the Migration Review Tribunal, obtain a result from that Tribunal which would see the grant of a new visa, it is enough to say that the fact that the visa which was cancelled and the cancellation of which would be the subject of review in the Tribunal was a visa due to expire on the day of cancellation is not unimportant. It seems to me to lead to a position where even if Mr Gamage were successful in obtaining review of the Migration Review Tribunal and if that review were to be determined in his favour, the fact would remain that without grant of a fresh visa he would not be entitled to remain in Australia. As at present advised it is not apparent to me how it could be that the Migration Review Tribunal could achieve the result that a fresh visa would issue permitting him to remain without Mr Gamage making a fresh application for visa.
Finally, it must be accepted that for Mr Gamage to attempt to deal with his pending application for special leave to appeal to this Court against the dismissal of his appeal against conviction would present him with very considerable difficulties. Perhaps those difficulties are not insurmountable but their size should not be underestimated.
Nonetheless, it is important in that respect to recognise that pendency of the application for special leave to appeal against the dismissal of his appeal against conviction does not bear directly or indirectly upon his entitlement to a visa to remain in Australia. This is not a case in which powers of the kind found in section 200 or section 501 of the Migration Act are engaged. This is not a case in which Mr Gamage’s conviction is the basis upon which his previously existing visa was cancelled. Cancellation of the student visa which is in issue in the Migration Review Tribunal, the subject of application for judicial review to the Federal Magistrates Court, was for reasons unconnected with his alleged offending against the criminal law.
Accordingly, none of the challenges to the conclusions reached by Justice McKerracher, which have been articulated in any of the documents which Mr Gamage has sought to file in this Court, and none of the challenges to the conclusions reached by Justice McKerracher or by Federal Magistrate Lucev, which have been articulated in the course of oral argument today, has persuaded me that it is arguable that the actual decision of Justice McKerracher to refuse injunction is attended by sufficient doubt to warrant a conclusion that application for special leave to appeal to this Court against those orders would enjoy prospects of success sufficient to warrant granting the relief which Mr Gamage now seeks.
For these reasons, I am of opinion that no extension should now be made to the interim order that was granted on Friday last. The application for extension of the interim order preventing Mr Gamage’s removal from Australia should be refused.
Before parting with this matter, one further point should be made. In the course of his oral submissions, Mr De Alwis, on behalf of Mr Gamage, intimated, as best I understood it, that he applied for adjournment of the present proceedings for a period of a week in order that Mr Gamage might prosecute further inquiries to obtain legal assistance for argument of his case.
Ordinarily it would have been more appropriate to deal immediately with the application for adjournment before passing on to consider, as I have, the substance of the merits of the application which is before me today. I have taken the unusual course I have, of dealing first with the substance of the matter, because it seems to me that whether there is any arguable basis for the application which now is made is a factor which looms large in determining whether any application for adjournment should now be granted.
As is implicit in what I have said about the merits of the matter, I am of opinion that no adjournment of this application should be made. I recognise that in forming that conclusion it means that Mr Gamage is not able to prosecute further his search for a lawyer willing to appear on his behalf, but those are searches which have been undertaken with respect to the proceedings in the courts below. They are inquiries which, as I understood it, were further prosecuted in relation to today’s application.
In the end, I am persuaded that the application for adjournment was but another in a lengthy history of attempts to put off the inevitable consequence of the conclusions which otherwise I have reached that no arguable case has been made for intercepting the effectuation of the duty otherwise imposed by the Act that Mr Gamage be removed from Australia. The application is dismissed.
Yes, Mr Macliver.
MR MACLIVER: Yes, thank you, your Honour. In light of your Honour’s decision and order I am instructed to seek a further order for the costs of today’s proceedings.
HIS HONOUR: On the face of it that order is irresistible, but is there any value to my making it, Mr Macliver?
MR MACLIVER: I could not really speculate on that, your Honour.
HIS HONOUR: Yes, I see.
MR MACLIVER: It is certainly standard practice to seek orders for costs in these sorts of proceedings.
HIS HONOUR: Yes. Well, Mr Gamage, there is, I think, no basis on which an order for costs can be resisted. Is there anything you would wish to say?
MR GAMAGE: Your Honour, I came out of gaol and do not have money or anything.
HIS HONOUR: Yes, I understand.
MR GAMAGE (through interpreter): That is all he has to say. He does not have any money.
HIS HONOUR: Yes, thank you. The application will be dismissed with costs. Adjourn the Court.
AT 1.35 PM THE MATTER WAS ADJOURNED
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