Glover v MIAC & Anor

[2008] HCATrans 325

[2008] HCATrans 325

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S364 of 2008

B e t w e e n -

DAVID GLOVER

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

MIGRATION REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 15 SEPTEMBER 2008, AT 9.44 AM

Copyright in the High Court of Australia

HIS HONOUR:   You are the plaintiff.

MR H.N. FREEDMAN:   No, your Honour.  I was the solicitor for the plaintiff, but I am here to seek leave to withdraw.  My instructions were withdrawn on Friday afternoon.  The plaintiff, Mr Glover, appears in person.  We have prepared, your Honour, a notice of intention to appear.

HIS HONOUR:   Yes, I have that.

MR FREEDMAN:   So in those circumstances I seek leave to withdraw.

HIS HONOUR:   Well, I think there is no alternative but to grant the leave.  Thank you for your courtesy in attending.

MR D. GLOVER appeared in person.

MR A. MARKUS:   I appear for the first defendant, your Honour.  (instructed by Australian Government Solicitor)

HIS HONOUR:   The second defendant has filed a notice of appearance in which it indicates that it submits to any order the Court may make, except as to costs.  Now, I understand you want to adjourn this matter today, Mr Glover.  Is that right?

MR GLOVER:   I would like to, your Honour, because, as Mr Freedman just told me, this only happened late on Friday and I have not really had the time to prepare everything, especially on some of the new documents because I have only just received this morning just before I came to this Court.

HIS HONOUR:   What are those new documents?

MR GLOVER:   It was computer printouts from the Immigration.

HIS HONOUR:   Yes.  So that is Ms Kelso’s affidavit filed on 12 September.

MR GLOVER:   Yes.  It was faxed to me late Friday, but being a fax machine I could not read any of it until this morning where I just had a printout from an email.  There are also ‑ ‑ ‑

HIS HONOUR:   So you are not contemplating getting any further legal representation?

MR GLOVER:   Yes, I am, your Honour.  I am going to take advice and there was going to be other grounds that I wanted to amend my statement on.

HIS HONOUR:   Very well.  Is there anything more you want to say about the adjournment application?

MR GLOVER:   No, your Honour.

HIS HONOUR:   Mr Markus, what is the attitude of the first defendant?

MR MARKUS:   The first defendant opposes the adjournment application, your Honour.  In my respectful submission, your Honour, whilst the plaintiff is perfectly entitled to terminate the services of his legal advisers, that is a matter for him.  This application relates to a decision of the Migration Review Tribunal which was made some 12 months ago.  The plaintiff has commenced proceedings through solicitors, presumably having given instructions for the proceedings to commence in the form that it has.  The matter was listed for hearing this morning and the plaintiff has, for whatever reason, decided to terminate the services of his legal advisers on Friday, the last working day prior to the hearing.

Your Honour, the plaintiff has referred to the fact that he wishes to obtain some further legal advice.  Again, your Honour, the plaintiff has had more than sufficient time to obtain legal advice in relation to the decision of the Tribunal.  Secondly, the plaintiff referred to some additional grounds that he wishes to raise.  He has not identified what those grounds are and, with respect to him, he should be in a position to do so, so at least your Honour can be satisfied that there is some prospect of any of those grounds being at least arguable.

Your Honour, as foreshadowed in our outline of submissions, there is an additional reason why we say that this particular application, even if some error could be demonstrated in the decision of the Tribunal, is futile and that is that the plaintiff cannot, in my respectful submission, be successful in his application for a tourist visa because he cannot satisfy a particular criterion which is prescribed for the tourist visa that he has applied for, being the requirement that he be the holder of a substantive visa 28 days prior to the date of his application.

I can expand on that, your Honour, but it is quite clear that regardless of whether he was granted the tourist visa when he was, the earlier tourist visa, he did not hold a substantive visa in December 2006 or for a number of years prior to that, and therefore, he simply cannot satisfy the criteria that are referred to in the decision of the Migration Review Tribunal.

HIS HONOUR:   Well, Mr Markus, I have rarely seen a case that has stronger technical merit and less moral merit presented by the Minister for Immigration.  Your last point seems very hard to answer, but the way in which Mr Glover has been dealt with over the – not over the whole of the last five years, but for the first three of the last five years, does not seem at all satisfactory.  I mean, he seems to be in a position which is terribly difficult to get out of, whereas if he had been told accurate things he would not have been in it.  For that reason I am rather sympathetic to the proposition that if he can find some clever lawyer who can think up a way out of it, he should be given the chance.  I have difficulty in seeing it myself, but he may be able to find one.

MR MARKUS:   I understand what your Honour says and there are factual findings and there are concessions made by my client in relation to certain matters.  Can I, nevertheless, just address your Honour in relation to the moral merits, as it were.  The plaintiff applied for a three month tourist visa in January 2003.  He was informed that he required to produce certain additional medical information in support of his visa, which ultimately came through in May 2003 and that is when the decision was made.

The plaintiff asserts that he contacted my client Department in late April 2003 on two separate occasions.  He has not asserted that he had any subsequent contact with the Department in circumstances where what he applied for was a three month tourist visa for a period of in excess of three years.

Now, whatever happened, the decision and, as your Honour has seen, there are factual findings by the MRT and concessions made by my client in circumstances where the documents that are the subject of the dispute, as it were, have not been able to be located.  Therefore, my client is simply not in a position to dispute that the plaintiff had not been notified.  But, your Honour, putting that to one side, the MRT made a factual finding about that and we accept that factual finding, so the presumption is that the plaintiff had not been notified of the decision, but in circumstances where he applied for a three month tourist visa and he last had contact following that up with the Department in April 2003.

He has taken no steps between April 2003 and 2006 to follow up on what may have happened to his tourist visa application.  So insofar as there is a moral merit, as it were, for the plaintiff, your Honour, that, to some extent, is coloured by his lack of action in that regard.  Those are my submissions.

HIS HONOUR:   Mr Glover, how long do you want this adjournment to be for?

MR GLOVER:   I need to issue some FOIs or, if I could have the Court’s leave to speed things up, subpoenas for some certain documents.

HIS HONOUR:   You have already issued some requests under the Freedom of Information Act.

MR GLOVER:   Yes, but not to all of the departments.

HIS HONOUR:   How long?

MR GLOVER:   I would like a month, if I could, your Honour.

HIS HONOUR:   If an adjournment of a month were to be granted, Mr Markus, you would prefer it to be to a specific day presumably?  In other words, we should fix the day now to which the matter is to be adjourned.

MR MARKUS:   Yes, your Honour.

MR GLOVER:   Sorry, your Honour, and then when will I amend my – need to amend my claim also.

HIS HONOUR:   Yes.  Today is 15 September.  If it were adjourned to 20 October, is that too short a time?  Mr Glover, I am just ignorant as to how long it will take the departments to either respond to your requests or refuse your requests.

MR GLOVER:   Yes, that may be a bit of a problem, yes.

MR MARKUS:   Your Honour, can I just address that point because, as your Honour has already noted, there have been FOI requests made for various files.  I am not quite sure what the plaintiff is proposing as far as further documents are concerned, but as I indicated, there are no hard copy documents that could be located by my client and that is quite clear from the FOI records.  There are certain electronic records which we have provided to the Court annexed to some affidavits.  I am not quite sure exactly what the plaintiff is proposing to seek in addition to that.

HIS HONOUR:   It might be simpler if, instead of using the Freedom of Information Act, he simply issued a notice to produce – wrote you a letter – wrote you, the Australian Government Solicitor, a letter indicating what documents he wanted the Commonwealth of Australia to produce.

MR MARKUS:   I think that the plaintiff had that in mind.  He referred to a subpoena.

HIS HONOUR:   Whether they be in paper form or printouts from electronic records.

MR MARKUS:   Indeed, your Honour.  I do not have any difficulty with that proposition and, indeed, it would be a lot more appropriate and a lot more likely to result in expeditious processing, but I am just trying to understand what is the nature of the documents that are being sought, because there is a distinct lack of documentation.  I mean, there is no doubt about that, your Honour.  The documents have been put into a box file.  The box file has been located and people have examined the contents of it and these documents are not in there.  Prior to coming along today, I have made sure that the box file has been retrieved again and its contents have been examined, and whether the number is wrong or what may have happened I do not know, your Honour, but the documents are simply not in there.  So what we have is the electronic records.

HIS HONOUR:   Yes.  I think, Mr Glover, I will direct you to serve on Mr Markus within seven days a letter indicating what further documents, if any, you want.  Mr Markus will have seven days after that to supply those documents if it is within the power of the Government to supply them.  We will adjourn the matter to ‑ ‑ ‑

MR GLOVER:   Also, your Honour, I want to serve on the MRT and also the Ombudsman, Commonwealth Ombudsman of communications.

HIS HONOUR:   I think you will probably find that a letter from you to Mr Markus indicating what you want out of the MRT or the Ombudsman is much likely to get a speedy answer than a letter direct from you to those officers and bodies.  Is there any problem with that, Mr Markus?  I mean, they can resist you, no doubt, but ‑ ‑ ‑

MR MARKUS:   Your Honour, the MRT, we have entered the submitting appearance for and I can certainly accept a document or a letter by way of notice to produce.  I am not quite sure what the Ombudsman ‑ ‑ ‑

HIS HONOUR:   The Ombudsman would not have come into this unless you had brought the Ombudsman into this.  If you have brought the Ombudsman into this, you must know the totality of the documents that have passed between you.  I do not for myself.

MR GLOVER:   Sorry, your Honour.  They do not produce letters between them and the Minister of Immigration to me.  That is kept within their records unless I issue them with an FOI or something to produce.

HIS HONOUR:   I think we might leave it at the level of Mr Markus asking them and if there is any trouble it can be looked at in the future.  Now, is there anything else you want to say?

MR GLOVER:   No, that is fine, your Honour.  Thank you.

HIS HONOUR:   I think we will adjourn it to Monday, 20 October.  By that time you should have filed any amended application and any additional submission that you wish the Court to consider.

MR GLOVER:   Thank you, your Honour.

HIS HONOUR:   Is there anything else you want to raise.

MR GLOVER:   That is fine, your Honour.  Thank you.

HIS HONOUR:   Mr Markus?

MR MARKUS:   Your Honour, at the risk of being unpopular, we would ask for our costs thrown away by the adjournment.

HIS HONOUR:   What can you say against that?

MR GLOVER:   I think the Immigration Department has cost me enough so far, your Honour.

HIS HONOUR:   I think Mr Markus’ application has merit.  The orders will be:

1.The plaintiff serve on the Australian Government Solicitor a letter requesting any further documents which the plaintiff desires to inspect within seven days.

2.Those documents be supplied no later than seven days after receipt of that letter.

3.The matter be adjourned to 9.30 am on Monday, 20 October with liberty to the plaintiff to file and serve any amended application for an order to show cause and any further written submissions which he is advised to file.

4.The plaintiff pay the costs thrown away by his successful adjournment application of today’s date.

The Court will now adjourn.

AT 10.01 AM THE MATTER WAS CONCLUDED