Gogna, Ex parte - Re MIMIA

[2002] HCATrans 405

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S366 of 2002

In the matter of -

An application for a Writ of Prohibition against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

THE MANAGER, AUSTRALIAN CORRECTIONS MANAGEMENT PTY LTD, IMMIGRATION DETENTION CENTRE VILLAWOOD, NEW SOUTH WALES

Second Respondent

Ex parte –

MANDEEP GOGNA

Applicant/Prosecutor

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 17 OCTOBER 2002, AT 10.21 AM

Copyright in the High Court of Australia

MR M.T. JONES:   I appear for the applicant.  (instructed by the applicant)

MR A. MARKUS:   I seek leave to appear on behalf of the first respondent, the Minister.  (of the Australian Government Solicitor)

HER HONOUR:   Yes, Mr Jones.

MR JONES:   Your Honour, this matter has been brought on in some haste as I think you can see from the affidavit.  Mr Gogna is currently at Sydney Airport.  I had a brief conversation with him a short while ago.  I am still not sure of the time that he is due to be put on a plane.

MR MARKUS:   I may be able to assist your Honour.  I am instructed the removal is scheduled to take place at 11.30 this morning.

HER HONOUR:   Yes, thank you.

MR JONES:   Your Honour, I have also just been handed this morning a letter which is from Mr Hamish Lindsay who is the Regional Director, apparently, of the ACT Branch of the Department of Immigration which tells me that my request to the Minister, which is annexure A to my affidavit, has not been passed on to him on the basis that it does not raise any new issues.  So, that, I understand, from the respondents’ point of view is an end of the matter.

However, from the applicant’s point of view that is certainly not satisfactory.  The application for an order nisi does refer to the issue of an Australian child and the legitimate expectation that the applicant had that that would be taken into account.  This, of course, refers to the High Court’s judgment in the Teoh Case.  There is nothing in what I have been told in this letter from Mr Lindsay this morning that indicates that that has been taken into account. 

The issue, of course, before the Court this morning is whether or not it is appropriate to prohibit the Minister from removing Mr Gogna at 11.30 so that further applications can be made in respect of this stage the matter is now at.

HER HONOUR:   No, no, I can only prohibit him if you can point to some error somewhere in the decision‑making process that would entitle me to intervene under 75(v) of the Constitution.

MR JONES:   Yes, your Honour.  Well, the only thing I have in the way of evidence of a decision‑making process is this letter which, as I say, was just handed ‑ now.

MR MARKUS:   Your Honour, I do not want to interrupt my friend but it may be appropriate if I hand to your Honour two copies of the letter that my friend refers to.

MR JONES:   I have no objection to that.

HER HONOUR:   Thank you.  Yes.

MR JONES:   As I say, your Honour, this letter is from Mr Lindsay who ‑ ‑ ‑

HER HONOUR:   Now, your application was under section 351?

MR JONES:   Yes, it was, your Honour.

HER HONOUR:   And under that section the Minister does not have a duty to consider an application.

MR JONES:   That is correct, your Honour.

HER HONOUR:   Well then, what error can you point to in this process?

MR JONES:   Simply on the basis of this letter, your Honour.  I cannot see how the applicant could be satisfied that the matter has even gone to the Minister.

HER HONOUR:   It does not have to, does it?

MR JONES:   I think it has to get further than Mr Lindsay.

HER HONOUR:   Well, there have been many cases of this kind, mainly under section 417.  If you look to 351, he “does not have a duty to consider”.   It is not that he does not have a duty to exercise the power, which he clearly does not, but he does not even “have a duty to consider”.  So, what error can you point to that would entitle this Court to intervene or any court to intervene?

MR JONES:   Only, your Honour, that at this stage, as I say, all I have is a letter from a person in the Department of Immigration.

HER HONOUR:   Yes, but what else would you expect?

MR JONES:   Some indication of the authority of the person to give this letter, perhaps.  The Regional Director of the ‑ ‑ ‑

HER HONOUR:   You see, you have to establish an arguable error in the decision‑making process.

MR JONES:   Yes, your Honour.  Well, then, I suggest that the failure to afford Mr Gogna – to consider the legitimate expectation that Mr Gogna had that the interests of the child would be taken into account in this procedure.  There is nothing in Mr Lindsay’s letter ‑ ‑ ‑

HER HONOUR:   You are talking about Teoh, are you?

MR JONES:   Yes, your Honour.

HER HONOUR:   That was an AD(JR) Act case, was it not?

MR JONES:   Yes, your Honour, I am sure it would have been.

HER HONOUR:   We are talking about 75(v) of the Constitution here where you have to show either jurisdictional error or at least some form of illegality that might warrant the intervention of this Court.

MR JONES:   Your Honour, if this letter is sufficient to dispose of the matter, which I still find ‑ ‑ ‑

HER HONOUR:   Even if it were not – let us assume you had not got the letter.  We will turn it over.  Even if it were not, what would you say the error was that would entitle the Court to intervene?

MR JONES:   In that case, your Honour, the situation would be that Mr Gogna was being removed from the country before his legitimate request under the Migration Act had been considered.

HER HONOUR:   But there is no duty to consider it.  If you look at section 352(7), it clearly says there is no duty to consider it.

MR JONES:   Yes, I am aware of that, your Honour. 

HER HONOUR:   In terms of that section, the letters could be left in a shoebox forever, could they not?

MR JONES:   Well, if the letters are directed to the Minister, your Honour, and are intercepted at some stage of the process by a person in the Department with no apparent authority to do that, then since section 351 of

the Act does exist, my client would say he had a right to at least get his request ‑ ‑ ‑

HER HONOUR:   He has no right under that because the Minister does not have a duty to consider.  That is your difficulty with that section, is it not?

MR JONES:   Yes, it is certainly a difficulty with the section, your Honour.  Well, I think that is as far as I can go with it, your Honour.

HER HONOUR:   Yes, thank you, Mr Jones.  Do you wish to say anything, Mr Markus?

MR MARKUS:   Your Honour, insofar as the applicant seeks to assert that there is a duty on departmental officers to refer requests under section 351 or equivalent provisions in the Migration Act to the Minister personally, the Full Federal Court’s decision in Bedlingtonv Chong (1998) 87 FCR 75 has dealt with that issue. That judgment makes it clear that no such duty exists.

It is our submission, your Honour, that this application is clearly misconceived.  There is no duty on the Minister to consider requests.  There does not have to be a request for a decision to be made.  Insofar as any legitimate expectation argument is raised, there cannot be such an argument raised unless there has been a decision by the Minister upon consideration of the request.  In this case no consideration was given to the request because the request was not considered to meet guidelines issued by the Minister for Immigration for matters to be referred to him personally.

Those are all the submissions I wish to make, your Honour.

HER HONOUR:   Yes, thank you.  Anything in reply, Mr Jones?

MR JONES:   No, your Honour.

HER HONOUR:   Thank you.  Section 351(7) provides that:

The Minister does not have a duty to consider whether to exercise the power under subsection (1) –

to substitute a more favourable decision –

in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

In the present case, the applicant, Mr Gogna, requested or, perhaps more accurately, a request was made on his behalf to the Minister to exercise his power under section 351(1) of the Act.  In response to that request, a letter has been received, apparently, by Mr Jones from Hamish Lindsay, Regional Director, saying that the matter has not been and will not be referred to the Minister.

It seems to me that there being no duty on the Minister to consider an application or request, no error can be detected in the decision‑making process which would entitle this Court to intervene on behalf of Mr Gogna, whether by interlocutory order nisi or otherwise.

Accordingly, the application is dismissed.

Now, it is an ex parte application.  It is a matter for you, Mr Markus.

MR MARKUS:   Your Honour, I will make the application for costs, and I will say no more about it.

HER HONOUR:   No, there will be no order for costs.  It is strictly an ex parte application and Mr Markus’ attendance was at his own volition and it might well have been otherwise if there had been occasion to investigate a decision that had been made.  There will be no order as to costs.

AT 10.33 AM THE MATTER WAS CONCLUDED