Gonzalez v GSL (Australia) Pty Ltd

[2007] HCATrans 431

[2007] HCATrans 431

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S220 of 2007

B e t w e e n -

BORIS ASTORGA GONZALEZ

Plaintiff

and

GSL (AUSTRALIA) PTY LTD

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

LYNETTE JACKSON

Third Defendant

Summons

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 13 AUGUST 2007, AT 10.38 AM

Copyright in the High Court of Australia

MR R.W. KILLALEA:   May it please the Court, I appear for the plaintiff.  (instructed by Adrian Hawkes)

MR G.T. JOHNSON:   May it please your Honour, I appear for the second defendant.  (instructed by DLA Phillips Fox)

HIS HONOUR:   You rely, I think, on two affidavits; one of the plaintiff which was filed on 15 May 2007 and one of his mother, Veronica Gonzalez Gutierrez, which was filed on 9 August 2007?

MR KILLALEA:   Yes, and the third one, if it is necessary, affidavit of Adrian Francis Hawkes of 5 June 2007 confirmed 4 June.  That just goes to the position of the first respondent.

HIS HONOUR:   That is basically an affidavit of service.

MR KILLALEA:   Just what is said, your Honour.  I am only concerned that the Court accept that the first defendant is the manager of Villawood Detention Centre and there is a conversation set out in that affidavit of service.  There is a submitting appearance of course.  It was not a matter I was able to agree with the Minister.  I do not know if the Minister now agrees.

HIS HONOUR:   Is this not the position that no point is taken about the matter that that affidavit goes to?  However, we may as well receive it, in view of any doubt there has been in the past.  So as to those three affidavits, do you have any objection to any part of them, Mr Johnson?

MR JOHNSON:   No, your Honour.

HIS HONOUR:   And you do not wish to cross-examine on any part ‑ ‑ ‑

MR JOHNSON:   No, your Honour.

HIS HONOUR:   Very well.  You, Mr Johnson, rely on an affidavit of Katherine Nicole Hooper filed on 9 August 2007?

MR JOHNSON:   Yes I do, your Honour.  Yes, your Honour, I read that.

HIS HONOUR:   I have read those and will treat them all as read.  You do not object to her affidavit?

MR KILLALEA:   No, your Honour, I do not.

HIS HONOUR:   I think one thing is agreed, that the matter should not be remitted to the Federal Court of Australia, correct?Another thing which is agreed, that it should not be remitted to the Federal Magistrates Court either?

MR JOHNSON:   That is correct, your Honour, yes.

MR KILLALEA:   Yes.

HIS HONOUR:   Very well.  Over to you, Mr Killalea.

MR KILLALEA:   I pass your Honour a bundle of documents.  It includes the Migration Act 1958, Reprint No. 2. I do not know if your Honour has a copy of that. It also has a copy of the Migration Reform (Transitional Provisions) Regulations, regulation 4, which is the one in issue.

HIS HONOUR:   Yes, I have both of those.

MR KILLALEA:   There is a copy of two cases set out in the submissions which are not in the CLRs or the ALRs.

HIS HONOUR:   What are those two cases? 

MR KILLALEA:   Andary v Minister for Immigration and Multicultural Affairs.

HIS HONOUR:   This bundle, have you got a copy of that for me?

MR KILLALEA:   I do, your Honour.

HIS HONOUR:   You have one for yourself?

MR KILLALEA:   Yes, and my friend has one.

HIS HONOUR:   Good.

MR KILLALEA:   Item number 5 I have extracted just some short passages from Re Patterson’s Case.

HIS HONOUR:   I am familiar, as familiar as one can be, with the legislation you want me to go to, but is there anything in those three cases you want me to look at?

MR KILLALEA:   No, your Honour, no.  Sorry, I beg your pardon.  In Re Patterson, yes, I do wish to take your Honour there.

HIS HONOUR:   Very well.  Take me there whenever it is convenient to you.

MR KILLALEA:   Yes thank you, your Honour.

HIS HONOUR:   But if now is convenient, we could go there.

MR KILLALEA:   Your Honour, this case concerns a plaintiff who came from Chile and arrived in this country on 30 August 1985.  He was aged a little over 10 years at the time.  He travelled in the company of his family, which was his mother, father and there were three children altogether.  The plaintiff, in particular, travelled on his mother’s passport, he did not have his own passport.  His mother had a Class K4772 visa, which enabled her to travel to Australia.  Can I take your Honour to the Migration Act 1958, Reprint No. 2. Would your Honour be using my copy?

HIS HONOUR:   I think if we all work off the same document is probably better.

MR KILLALEA:   Yes, it is folioed in the top right-hand corner, which might help.  I take your Honour to section 6, and therein is set out the process of the issue of entry permits.  Section 6(1):

(1)     A non-citizen who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited non‑citizen.

(2)     An officer may, in accordance with this section and at the request or with the consent of a non-citizen, grant to the non-citizen an entry permit.

The plaintiff’s mother then, when she arrived in Australia, she was granted an entry permit in terms of subsection (2) because an officer stamped an entry permit in her passport.  I can take you to the affidavit of Mrs Gutierrez.  It is the affidavit of 9 August 2007.  Your Honour will see exhibited to that extracts from her passport.

HIS HONOUR:   I will interpose to say we will treat that exhibit as admitted into evidence.

MR KILLALEA:   Thank you, your Honour.

HIS HONOUR:   While I am interrupting your flow, can I also indicate that the first defendant and the third defendant have filed submitting appearances.

MR KILLALEA:   Thank you, your Honour.

HIS HONOUR:   Yes, which bit do you want me to look at in the exhibit?

MR KILLALEA:   Your Honour will see it is just the identifying pages of the passport.  On page 3 of the passport it has a photo, which I will ask your Honour to take is the mother and her three children.  On pages 4 and 5 your Honour will see on the left-hand side there the children are named.  The top one is Boris, who is the plaintiff “born 6.5.1975”.  Your Honour will find at page 9 a visa which is expressed as “This Visa does not authorise entry to Australia.  ENTRY is subject to the grant of an ENTRY PERMIT on arrival.”  It is valid for one journey, and valid for one journey by the holder, and those included below, before 15 December 1985, and again your Honour will see a list of names and “Boris”, who is the plaintiff.

On the left-hand side your Honour will see a stamp, an octagonal – or irregular octagonal perhaps – “Immigration Australia, Permitted to enter and remain for residence on 30 August 1985.  This permit has no force or effect after the holder leaves Australia”.  So in conformity with the Migration Act, as it then was, at folio 8 of that bundle, and, of course, Mrs Gutierrez sets out in her affidavit, she presented her passport to an Australian immigration officer and that officer stamped that entry permit in her passport. I take your Honour then to section 6(8), again at folio 8:

(8)     A child under the age of 16 years who enters Australia in the company of, and whose name is included in the passport of, or any other document of identity of, a parent of the child shall be deemed to be included in any entry permit granted to that parent before the entry of that parent and written on that passport or other document of identity, unless the contrary is stated in the entry permit.

There is nothing contrary stated in the permit.  So the situation is that the plaintiff was a child under the age of 16 years, and again as Mrs Gutierrez deposes in her affidavit, she presented to the immigration office with her children.  So he was a child under the age of 18 years, he entered Australia in the company of his mother and he was thereby deemed to be included in the entry permit granted to his mother.  I will come back now to how that section ought properly be read, in the applicant’s submission.  In this matter the plaintiff, having come to Australia in 1985, was ultimately charged with and convicted of various assault charges.  If I could take your Honour to the revised submissions and the chronology there.

HIS HONOUR:   Just one moment.  Yes revised submissions, right.  That was 19 February 2004.

MR KILLALEA: Yes, “the Plaintiff was convicted, in Australia, of (various) assault charges and sentenced to 27 months imprisonment”. On 13 July, “a delegate of the Minister for Immigration exercised her purported discretion under ss.501(2) of the Migration Act and cancelled the Plaintiff’s Transitional (Permanent) Visa”. Section 501(2), your Honour, is in these terms:

The Minister may cancel a visa that has been granted to a person if:

(a)the Minister reasonably suspects that the person does not pass the character test; and

(b)the person does not satisfy the Minister that the person passes the character test.

The critical part of that provision is that it applies to a visa that has been granted and in this case the starting point for the applicant’s migration status ‑ ‑ ‑

HIS HONOUR:   The point is it was not granted.  It simply came into existence by operation of the statute.

MR KILLALEA:   Yes.  In the submissions I have used the word “imposed”.  I draw back from “imposed”.  I think the better expression is that the legislation deemed that he was – as it says, he was deemed to be included in the entry permit.  Then I take your Honour to section 5(1) at folio 6 and the definition of “the holder” at about point 6:

“the holder”, in relation to an entry permit, means the person to whom the entry permit was granted or a person who is deemed to be included in the entry permit –

So there are two persons who are contemplated as being the holder of an entry permit; the person to whom it was granted and a person deemed to be included in the entry permit granted to that person.  Those two persons in respect of this matter are the plaintiff’s mother, the permit was granted to her, and the plaintiff himself who was deemed to be included in that permit as granted to his mother.  At that time, your Honour, that is, as at 1985 when the plaintiff came to this country, an entry permit, not being a temporary entry permit, was not subject to cancellation.  An entry permit would lapse under section 9 at folio 10:

Where a non-citizen who is the holder of an entry permit leaves Australia, the entry permit has no force or effect in relation to him upon or after his re-entry into Australia.

So it would lapse in that circumstance.  But there is no other provision which provided for the cancellation of an entry permit not being a temporary entry permit.  It could only come to an end if it lapsed on a person leaving Australia.  That has a particular importance in consideration of section 6(1):

A non-citizen who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited non‑citizen.

That provision is very much akin to section 13 in the present Act “Lawful non-citizens”.  I will start at 13(1), sorry:

A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen –

Section 14(1):

A non-citizen in the migration zone who is not a lawful non‑citizen is an unlawful non-citizen.

So the same regime applied in 1985 essentially, as it does now, and that is, if you did not hold then an entry permit and if you do not hold now a visa, then you are an unlawful non-citizen.  The criteria then which determines whether or not you are lawful, is whether or not you hold relevantly a permit or a visa.  That status is not concerned with how it is that you came to hold such permit or visa.  The critical thing is do you or do you not hold a permit or visa.  Going back then to the situation in 1985, it was imperative for legal status that one held an entry permit. 

Reading subsection (2) and subsection (8) together, a child was not the subject of a grant – the reason for that is obvious enough in reading subsection (2), “An officer may” grant a permit “at the request or with the consent of a non-citizen”, and a child is simply not in the position of being able to request or to – well, often enough it will be the case the child can neither request nor consent, and hence subsection (8) takes account of the situation where a child under 16 years come in the company by a person who is granted an entry permit and that child is deemed to be included in the entry permit granted to the parent.  The child thereupon, in terms of the definition of “the holder”, then becomes the holder of an entry permit.

So in terms of satisfying legal status in this country, subsection (8) is directed towards ensuring that the child holds an entry permit.  It is not concerned with how it is that the child got that entry permit.  The focus of subsection (8) is to ensure that a child coming into this country with the child’s parent becomes the holder of an entry permit because unless the child is the holder of an entry permit the child does not have legal status.

Section 501 is not directed at the holder of a visa.  There is already correlation to be made between the permit and the visa and I will come to that.  But, importantly, section 501 is directed towards the cancellation of visas that have been granted.  It is not directed to the cancellation of visas that are held.  In respect of the applicant holding a permit, he holds that permit by dint of subsection (8).  I submit to your Honour that subsection (8) does not in any sense provide for the grant of permission to remain in this country.  It does not provide that permission is granted.  It provides simply that an entry permit is held. 

What the Parliament could have done in order to ensure that a child in the situation of the plaintiff took legal status on entering this country, the Parliament could have said the child in the circumstances described in subsection (8) is deemed to be granted an entry permit as for the parent.  It does not say that.  It could have said generally a child is deemed to be granted an entry permit, otherwise as provided for by subsection (2).  It could have said a child is deemed to be granted the entry permit granted to the parent, it could have said that, which would have focused on the way in which the child came to get the entry permit, but it says neither of those things.  It simply says that a child is deemed to be included in the permit granted to the parent.  I submit to your Honour that, in that context, it cannot be said that the entry permit which the plaintiff held as of August 1985 was a permit that was granted to him.

The legislative developments occurring after the entry of the plaintiff into Australia – if I could take your Honour back to the submissions.  In December ’89 there is a reference there to a test being introduced as to when a person was to be taken not to be of good character, referred to in Nystrom at paragraph [144].  More particularly, on 24 December 1992 section 180A, which was later section 501, came into force in relation to permits and visas, and then on 1 September 1994 section 180A was renumbered to section 501 and amended so it applies to visas only. 

At the same time as section 501 was introduced in the its own terms, the Migration Reform (Transitional Provisions) Regulations – a copy of which your Honour has, if I could take you there – regulation 4(1) provided that the plaintiff’s entry permit continued in effect as a transitional permanent visa. Your Honour will find regulation 4(1) at folio 36:

Subject to regulation 5, if, immediately before 1 September 1994, a non‑citizen was in Australia as the holder of a permanent entry permit, that entry permit continues in effect on and after 1 September 1994 as a transitional (permanent) visa that permits the holder to remain indefinitely in Australia.

Your Honour will see again there is a focus there on the holder.  It is concerned with whether or not a non‑citizen held an entry permit.  It is not concerned how that entry permit came to be held by the non‑citizen.  There is nothing in regulation 4(1) which indicates that the transitional (permanent) visa, taking effect on and after 1 September 1994, does so by way of grant.  The language of “grant” simply is not used.  The language that is used is that the entry permit continues in effect as a transitional (permanent) visa, permitting the holder, again, to remain indefinitely in Australia. 

The entry permit being held by the plaintiff, by dint of subsection (8), is not an entry permit that was granted and so when that entry permit is said to continue in effect, then what continues in effect is permission to remain in Australia indefinitely, being permission arising upon the deeming provision in section 6(8), and the deeming provision having the effect of making the plaintiff a holder of a visa but not in any way making him the grantee of the entry permit of which he does hold. My friend says, in a sense that we just play with the language by submitting that there is no concept of grant in either the holding of the entry permit or the holding of the transitional (permanent) visa.

This Court has noted a particular aspect of the entry permit and the transitional (permanent) visa which gives effect to that entry permit in Re Patterson; Ex Parte Taylor (2001) 207 CLR 391. I have taken some extracts from that judgment at folio 62. Her Honour Justice Gaudron at paragraph 22, folio 64 – I just inform your Honour that this is a matter pertaining to the transitional (permanent) visa from a person who came into this country on an entry permit:

In fact, Mr Taylor did not have a visa in the sense that that word is ordinarily understood. Mr Taylor has never held a passport. He came to Australia as a child on his father’s United Kingdom passport which, apparently, was stamped with a permanent entry permit. The visa which the Parliamentary Secretary purported to cancel is a deemed visa, being either an absorbed person visa under s 34 of the Act or a transitional (permanent) visa pursuant to reg 4(1) of the Migration Reform (Transitional Provisions) Regulations –

So her Honour sees the transitional (permanent) visa as being a deemed visa.  I take your Honour to paragraph 92 at folio 65, the judgment of his Honour Justice McHugh, at the foot of 421:

The prosecutor was born in the United Kingdom.  He came to Australia with his parents in 1966, as part of the assisted migration scheme.  He did not carry a passport or visa, but was deemed to be included in the entry permit granted to his parents.  While his status is in issue in these proceedings, it is clear that he is deemed to have held two types of visas: an absorbed person visa and a transitional (permanent) visa.

At 104, folio 67:

In response, the prosecutor contended that he could not be deported by cancelling his deemed visas –

Again, just that reference to a “deemed visa”.  Then their Honours Justices Gummow and Hayne at 144, which is at folio 68:

At the time the prosecutor entered Australia with his parents, the provisions of the Migration Act 1958 (Cth) turned upon the criterion of “immigrant”. This term was so defined in s 5(1) as to include persons entering Australia with permission and for the purpose of staying permanently. Section 6(8) of the Migration Act deemed a child under sixteen years, such as the prosecutor, to be included in any entry permit granted to either parent.  Without an entry permit, an immigrant who entered Australia became a “prohibited immigrant” (s 6(1)).  An entry permit might be expressed to permit the grantee to enter and remain in Australia (s 6(3)).  It may be assumed that the prosecutor’s parents, and thus the prosecutor, had such permanent entry permits.  The contrary is not suggested.

So this Court has judicially noted, and as I understand it, that the transitional (permanent) visa is a deemed visa. I think there is no doubt the Court has noted that. How much the Court encompasses in that description I cannot say, but regulation 4(1) is in the nature of a deeming provision in that it says that an entry permit held before 1 September 1994 takes effect as a transitional (permanent) visa, but the entry permit itself has its own deeming aspect in that the entry permit is only held on account of the deeming provision in section 6(8).

The import of those provisions, section 6(8) and regulation 4(1) of the Migration Reform (Transitional Provisions) Regulations, is such that the visa which the delegate purported to cancel, a transitional (permanent) visa, is, in the words of this Court, a deemed visa. The description, I submit, is a careful one and a proper one and it must be, coming from this Court. It is not a visa which is deemed to be granted. It is simply a deemed visa. My friend says something in his submissions to the effect that the Parliament cannot be worried too much about how the visas are described in the way they are given, but the Parliament in fact has been very careful in the way it provides for visas to be gotten by different persons. In fact, there are a very limited number of ways in which visas may be gotten. Visas, in express terms, might be granted, section 32, special category visas.

I take your Honour to section 32. That, under the Migration Regulations, schedule 1, is a Class DB visa and the subclass is 444 and that visa, in terms of its subclass, is a visa that is subject to grant. Section 36 is a protection visa. Again, that is a visa which is subject to grant. Section 37 is a bridging visa. It is a visa that is subject to grant. Section 37A is a temporary safe haven visa. It is a subclass 448 or 449 in schedule 2 of the Migration Regulations. It is a visa subject to grant. Section 38, criminal justice visa, provided for in sections 155 and 159, is a visa that is subject to grant. Subsection 159(1):

If a criminal justice certificate, or a criminal justice stay warrant, in relation to a non‑citizen is in force, the Minister may consider the grant of a criminal justice visa for the non‑citizen.

Section 38A, enforcement visas, is a visa subject to grant, section 164B provides.  Those visas, your Honour, are set out as classes of visa in section 31(2) save that section 38 is not there.  I can only think it has been omitted by error.  But it refers to all of those visas and they are all visas subject to grant.  There is a second category of visas which are taken to be granted.  The first of those your Honour will find at section 33(2):

Subject to subsection (3), a non-citizen is taken to have been granted a special purpose visa –

That is section 33.  Section 34 is the absorbed person visa, which of course was the subject of decision in Nystrom’s Case. That is a visa which, under subsection (2), is taken to have been granted. Section 35, ex-citizen visas, under subsection (2), is taken to have been granted. There are of course the prescribed classes of visas under section 31(1). They are all visas subject to grant. All of those visas are set out in schedule 1 of the Migration Act, there are hundreds of them, and in schedule 2 the criteria, and they are all subject to grant.

So save for the transitional (permanent) visa, every visa provided for by the legislation is provided for in terms of being subject to grant or taken to have been granted.  There is no such terminology used in relation to a transitional (permanent) visa and, with respect, in consideration of that, then there is every good reason why this Court in the observations I have taken your Honour to in Re Taylor have meaning and, that is, the visa, the transitional (permanent) visa, is a deemed visa. It is a deemed visa in that it is not – and it is not a visa deemed to be granted simply because, in the terminology of regulation 4(1) of the Migration Reform (Transitional Provisions) Regulations, in terms of section 6(8), there is a deeming aspect to both the holding of the permit and of the holding of the transitional (permanent) visa which deeming aspect does not include any concept of grant.

If the Parliament wanted a transitional (permanent) visa and/or an entry permit held by a child on entry to be considered to be granted, then the Parliament had the means, the statutory means, to state that, but it did not.  My friend suggested the argument leads to an absurdity.  He sets that out in paragraph 32 of his submissions.

HIS HONOUR:   Your point would be it would be easy to have made section 501 completely clear on the matter.

MR KILLALEA:   Yes.

HIS HONOUR:   It is not completely clear on the matter at least, therefore, you must read section 501 narrowly rather than broadly.  If there are absurdities or untidy things left out, too bad, it can be fixed up for the future.

MR KILLALEA:   Yes, I think section 501, to have the effect my friend contends for, and it would not need to, but it could simply say any visa that is held.

HIS HONOUR:   Yes.

MR KILLALEA:   And because it could have said any visa that is held – and, rather, section 501 says any visa that is granted, well, then it must be the case that section 501 is to be read as words of limitation because if it simply said any visa may be cancelled, well, then a transitional (permanent) visa might be cancelled, but it does not say that.  It says any visa granted.  It is very particular in its words.

Now, as to absurdity, there is nothing absurd in two ways.  In general terms, if the plaintiff is successful in making his point before this Court, it only leads to the result that a person who came here as a child and has then spent their formative years, to a greater or lesser extent, in this country, and later ascribed with bad character, then that former child is not subject to removal.  There is nothing particularly absurd about that.  It is to be borne in mind that the United Nations Convention on the Rights of Children came into force for Australia in 1991 and a provision such as section 501 applying, as my friend would say, to all persons, we simply say there is nothing absurd about it not applying to children, that is, to persons who came here as children, whose formative years were in this country.

HIS HONOUR:   Can I just interrupt you.  It does not go to the merit of these substantive arguments we are advancing.  There seem to me to be two

problems in the application. You describe your challenge as being a challenge to the decision of the Minister’s delegate when that delegate in effect recommended to the Minister what should be done under section 501. That decision was made a couple of years ago, therefore, if that is the way one structures the proceedings, there is a need to extend time. If alternatively, which is not quite the way it is put in the written submissions, one structures the proceedings as being a challenge to the decision of the Tribunal – and it is the Tribunal’s decision which presently controls the migration status of your client – one has to ask questions like whether these subtle arguments you are advancing were put to the Tribunal and, secondly, whether it was possible to appeal to the Federal Court of Australia under section 44 of the Administrative Appeals Tribunal Act. Was it possible to appeal to the Federal Court under section 44 of that Act?

MR JOHNSON:   Your Honour, might I interrupt just briefly in relation to that?

HIS HONOUR:   Yes.

MR JOHNSON: That is, that the right of appeal might actually be 476A(1)(b) of the Act rather than section 44 of the AAT Act. The question is the same, your Honour. I just wanted to – there was a mistake in my written submissions in that respect.

HIS HONOUR:   Your understanding, is that permit challenges on grounds of law, grounds of errors of law?

MR JOHNSON:   Sorry, your Honour’s question is directed to me I think?

HIS HONOUR:   Yes.

MR JOHNSON:   Yes.  If the position was that the power which the AAT was purporting to re-exercise on the merits was not available in this case, that is an argument which could have been put to the Tribunal for the purposes of it reaching its decision under the AAT Act and it is an argument that could have been put to the Federal Court had an application been made under section 476A(1)(b).  That is my submission, your Honour.

HIS HONOUR:   There was an application to the Federal Court, was there not, but it was a declaration that the cancellation decision was null and void?  It was not, as it were, an appeal against the AAT’s decision?

MR JOHNSON:   That is right.  The application which was commenced in the Federal Court on 22 January 2007 purported to challenge the delegate’s decision, not the Tribunal’s decision.

HIS HONOUR:   What do you say to those two problems; one delay and the other one, in effect, failure to exhaust remedies?

MR KILLALEA:   First, with respect, it is not the decision of the AAT which is the commending decision here.

HIS HONOUR:   Let us have a look at your client’s affidavit, exhibit B.

MR KILLALEA:   Is your Honour looking for the AAT decision?

HIS HONOUR:   Yes.

MR KILLALEA:   It is exhibit B to the plaintiff’s affidavit.

HIS HONOUR:   Yes.  That affirmed the decision under review.

MR KILLALEA:   Yes.

HIS HONOUR:   And the decision under review is the Minister’s decision.

MR KILLALEA:   Yes.

HIS HONOUR:   That means the operative decision to be attacked is the AAT’s decision.

MR KILLALEA:   With respect, your Honour, it is not how I understand – I think it is the decision of the Federal Court, Comptroller‑General of Customs v Darling Downs Co‑Operative, wherein the court held that the operative decision is the decision which has been affirmed.  If I might leave it at that, I do not have that authority with me, but certainly that is how I understand it.  Secondly, the proceedings in the AAT have this particular difficulty, the plaintiff submits that in light of this particular difficulty ‑ ‑ ‑

HIS HONOUR:   Just pause there.  Let us say you are right about the Minister’s decision is the operative decision there is no explanation for two years delay, is there?

MR KILLALEA:   Two years delay in?

HIS HONOUR:   From the time when the Minister made that decision.

MR KILLALEA:   There is.

HIS HONOUR:   If you are challenging that decision and we, as it were, put the AAT on one side, then there is a two year delay, is there not?

MR KILLALEA:   The delay is, for the most part, in the Tribunal. 

HIS HONOUR:   No, you cannot have it both ways.  You are either challenging the decision of the delegate.  In that event, there has been quite a substantial delay, well beyond the time limit set for certiorari and mandamus.

MR KILLALEA:   Yes.

HIS HONOUR:   If on the other hand you explain the delay by reference to the Tribunal, does that not first tend to indicate that the relevant decision is that of the Tribunal and, secondly, raise the question why these points of law were not ventilated before Mr Purvis?

MR KILLALEA:   I have to say to the Court that I can say something about that that is not in the evidence because I was there, and I think ‑ ‑ ‑

HIS HONOUR:   You were where?  According to Mr Purvis, the applicant was self-represented.

MR KILLALEA:   When I say I was there, there is a reference to me assisting at some stage that I was not in a position to – you see the applicant was notified of the decision.  He was in detention at the time.  He was moving between Silverwater and Junee.  Correspondence did not get to him.  Having received the decision he had nine days in which to put on his application to the AAT if he was going to go that way.  He sent it off to the AAT and did not put a number of the street, it came back, but it was more than nine days late.  The AAT then rejected his application.

HIS HONOUR:   Then Deputy President Walker reinstated it.

MR KILLALEA:   Yes.  He went off to the Federal Magistrates Court, which is where I helped him to get it back into the AAT.  Your Honour will see on page 2 of the decision, the matter went back on 20 June 2006 by consent because there was an appreciation on the Minister’s part that notification had not been properly given.  That notification was given about September 2006 and then the matter proceeded to hearing.  From that date in September – I cannot quickly take you there, my friend might assist – but the Tribunal has to make a decision within 84 days and that 84 days lapsed about 12 December, I recall, and the decision came out at the end of November.  So there was a truncated period.  The legislation required that a decision had to be made within 84 days. 

Now, about the end of November and before the decision was given, I became privy to this argument and I informed the applicant.  I said, “There’s a decision about to be made.  You’ve got this problem, the one

that’s being ventilated now perhaps.”  My advice was, “I think you proceed, take the decision and then we’ll deal with the matter.”  That is how it has come about.  So it was not unknown.  That is what I wanted to say to the Court.  It was not unknown before the AAT decision.  It was known by the applicant that this argument might be ventilated.

In terms of going from the AAT to the Federal Court, well, there was no time.  You cannot realistically in a hearing in or about early November with an 84 day period lapsing in December, you could not realistically have taken this point to the Federal Court and got it back to the AAT before the 84 days lapsed, and there is no provision to allow for an extension of time if the point of law is taken to the Federal Court.

HIS HONOUR:   You did make an application to the Federal Court, but only in relation to the delegate’s decision.

MR KILLALEA:   Yes, post the AAT’s decision, that my view was, and I put it now as a submission here, that in reality there was no time to go to the Federal Court when you are in that situation where the AAT had to make its decision within 84 days.

HIS HONOUR:   But once the Tribunal had made its decision, would you accept that an appeal could have been brought to the Federal Court against the AAT’s decision within the normal period for bringing appeals to the Federal Court of Australia?

MR KILLALEA:   I cannot think why not, no.

HIS HONOUR:   Yes, okay.

MR KILLALEA:   But, of course, this applicant was entitled, with respect, to apply for habeas corpus.  He asked for something more than the writs.  He asked for habeas corpus.  He simply says, “I’m being invalidly detained”.

HIS HONOUR:   Just leave habeas corpus out of it.  Is there anything more you want to say about these linked questions of delay or failure to exhaust remedies?

MR KILLALEA:   No, I cannot think of anything at this juncture, your Honour.

HIS HONOUR:   Now, Mr Johnson, what do you say about habeas corpus?

MR JOHNSON:   In this Court, your Honour?

HIS HONOUR:   Yes.  Mr Killalea appears to be putting that, so far as failure to comply with time limits for mandamus and certiorari are concerned, that does not matter because he is applying for a writ of habeas corpus.  He may also be saying that the fact he is applying for writ of habeas corpus wipes out any exhaustion of remedies type discretionary argument.

MR JOHNSON:   The application that your Honour is faced with, of course, is for more than habeas corpus.  It is also seeking other relief.

HIS HONOUR:   Three prerogative writs.

MR JOHNSON:   That is correct, and the habeas corpus is really being sought, as I understand it, in aid of that.  What the plaintiff is seeking is certiorari, presumably, in relation to the decision – he has specified the delegate’s decision – and he is seeking an injunction or prohibition, in effect, against removal.

HIS HONOUR:   Yes, and he wants to quash the decision of the Lynette Jackson.

MR JOHNSON:   That is right.

HIS HONOUR:   And he wants an injunction against the Minister against removing the plaintiff from Australia pending the determination of these proceedings.

MR JOHNSON:   That is right.

HIS HONOUR:   What you are saying is, for the purposes of the writ of habeas corpus, which is paragraph 1 of the application for those remedies, is merely that he be brought before this Court and thereafter submit to the further order of the Court as to the custody of the person?

MR JOHNSON:   That is correct, your Honour.

HIS HONOUR:   And is your argument that there would be no point in making that order if the other remedies which are directed to destroying either the AAT’s decision or the delegate’s decision or the Minister’s decision under section 501, there would be no point in issuing that writ unless those orders could be granted?

MR JOHNSON:   Yes, your Honour.

HIS HONOUR:   And if there is some discretionary reason why the orders should not be granted, then habeas corpus is not a matter of determinative significance?

MR JOHNSON:   That is correct, your Honour.  We are left with the situation that he has not taken this up in the Federal Court post the AAT.

HIS HONOUR:   Except for the application to Justice Rares refused.

MR JOHNSON:   Which was aimed at the cancellation decision.

HIS HONOUR:   Yes.

MR JOHNSON:   Which the Federal Court did not have power to deal with.

HIS HONOUR:   Right.  Mr Killalea, I interrupted you when you mentioned the words “habeas corpus”, do you want to say anything more about that or ‑ ‑ ‑

MR KILLALEA:   Yes, only that just seems to be almost a point without distinction, I am thinking.  You ask for the writ because you were being invalidly held or do you ask that as for the writ of habeas corpus, and thereafter, of course ‑ ‑ ‑

HIS HONOUR:   Let me put it this way.  Let us say there was an arguable case for the view that your client was being invalidly held, to grant the writ of habeas corpus would merely, to be blunt about it, lead to a trip to the airport, would it not, because without the prohibition, certiorari and an injunction the writ of habeas corpus would not do any good?

MR KILLALEA:   Yes, the other things are necessary to restore the status quo that is correct.

HIS HONOUR:   Very well.  Well, I understand fully the first ground that you advance in relation to the meaning of “grant” and I understand, I think, your second ground which you put in written submissions.  What is concerning me is these discretionary-type questions.  Is there anything more generally you want to say about them?

MR KILLALEA:   Yes, the cases my friend has taken you to in his submissions, paragraph 24, I see cases in particular, of course those cases do not concern a matter like this because ‑ ‑ ‑

HIS HONOUR:   They do not directly concern a matter like this, but the grant of prerogative relief under the Constitution for a matter to be heard by the Full Court of the High Court of Australia is a serious matter and grants are not made lightly and they certainly are not made where there has been a failure to run the arguments before a competent tribunal below. Here they were not run before Mr Purvis, the Deputy President of the Administrative Appeals Tribunal, and they were not run on appeal from him, although they could have been. They are at least strong discretionary reasons against referring the matters into the Full Court, which is ultimately what you want.

MR KILLALEA:   Yes that is, as I understand it, a different argument than the one put by my friend.  I do not mean it should not be entertained of course.  The authorities that my friend has taken your Honour to at paragraph 24 turn upon decisions of a type that could have been made by the relevant authority but were made in attendance of jurisdictional error.  But in this matter the plaintiff asserts that the decision just could not have been made and therein lies a profound and significant difference between the matters under consideration in the way those cases have been considered and the way this matter comes before this Court.

They are also concerned with matters of substantially less moment.  One of them concerns a matter of a building demolition, and once an order is made to demolish a building, how long can that be held up for; quite a different matter for this plaintiff who comes before you, on the point of being removed from this country having lived here since 1985 and having come here at that time not subject to having his permission cancelled.  So the situation is one quite different in content and it is quite different jurisprudentially because those cases do not raise a situation where the type of decision that was impugned was a type of decision that could have been made by the relevant authority. 

The other point which I would submit is in the applicant’s favour in coming to this Court are that section 501 has been the subject of detailed consideration by this Court in a sense culminating in the decision in Nystrom’s Case last year. There were a number of cases before that, but certainly there were a number of cases in which this Court has conducted a deep jurisprudential analysis of so much of section 501. The plaintiff is presently detained and he must remain detained until such time as a court gives a final determination in his matter. If I can just find that section. Section 196 I think it is, your Honour, of the Migration Act, “Duration of detention”. In section 196(4):

Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of cancellation of his or her visa under section 501, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non‑citizen.

So this man must remain in detention until a court finally determines the matter in his favour, if at all of course.  I cannot say to your Honour that it is such a clear question or there is such a clear answer to the question that is being asked in this Court, but if the applicant did go on appeal to the Federal Court, he would stand to lose there, there is a very real possibility.

HIS HONOUR:   Why, if your arguments are good?  Your argument is that Nystrom has nothing to do with it and there is no authority standing in your path, why then would he lose in the Federal Court?

MR KILLALEA:   No, he stands to lose.  I only mean that one cannot predict the outcome of the litigation.

HIS HONOUR:   I see, yes.

MR KILLALEA:   He could lose there and it would go on appeal, of course, I think we could take that as a given, to the Full Federal Court.  It would then come to this Court by way of special leave because the point is an important one and, of course, both parties have a deep interest in getting a final adjudication on the matter.  So the course of going through the Federal Court on appeal from the AAT is accompanied by a not insubstantial risk that for the several years – and I think one could say even if it was an accelerated process could well take two years before this Court came to consider the question, as in all likelihood it would.  So I submit to your Honour that that is a circumstance for allowing that this matter be heard now in this Court rather than, as it were, obliquely inviting the applicant to go back to the Federal Court and begin the process there. 

The point is a discrete one. So much of the jurisprudence has been determined by this Court. This Court has said of the visa that it is a deemed visa, it is not a visa of the normal sort. That point has been recognised by this Court and this Court is simply well positioned for reason of that jurisprudential history to consider the matter and consider it expeditiously because of section 196(4) this man remains in immigration detention until he gets a determination in his favour. I would submit that those are proper considerations for this Court in determining the extension of leave application. The matter of absurdity, your Honour, I was there when we digressed ‑ ‑ ‑

HIS HONOUR:   Yes.  Mr Killalea, I do not think there is any point in proceeding with the rest of your argument on ground 1 and your argument on ground 2, I understand both those lines of reasoning.  I am not saying they are without force.  It is just that we have reached a crunch point I think on another matter which I think you had finished your submissions on.

MR KILLALEA:   Yes I had, your Honour.

HIS HONOUR:   Very well.

MR KILLALEA:   Nothing further then, your Honour.

HIS HONOUR:   Thank you, Mr Killalea.

HIS HONOUR:   This is the return of an application and a summons seeking the issue of writs of habeas corpus, prohibition and certiorari and also the grant of an injunction.  The plaintiff wishes the application to be referred to the Full Court of this Court for expeditious resolution in view of the fact that he is in detention.  The decision impugned is said to be a decision of the second defendant’s delegate of 13 July 2005.  The history is as follows.

The plaintiff was born in Chile on 6 May 1975. A passport was issued to his mother on 6 June 1985. On 30 August 1985 he arrived in Australia on a visa held by his mother. His mother was the recipient of an entry permit on arrival to enter and remain in the country for the purposes of residence. By virtue of section 6(8) of the Migration Act 1958 (Cth) as it then stood, as a child under the age of 16 years who entered Australia in the company of, and whose name was included in the passport of his mother, the plaintiff was deemed to be included in the entry permit granted to his mother. Pursuant to section 5(1), he therefore was a person who was deemed to be included in the entry permit and was therefore the holder of the entry permit. That entry permit continued in force until the Migration Reform (Transitional Provisions) Regulations 1994, regulation 4(1). It provided:

if, immediately before 1 September 1994, a non-citizen was in Australia as the holder of a permanent entry permit, that entry permit continues in effect on and after 1 September 1994 as a transitional (permanent) visa that permits the holder to remain indefinitely in Australia.

On 13 July 2005 a delegate of the second defendant, namely, the third defendant, found that the plaintiff did not pass the character test set out in section 501(2) of the Migration Act which provides:

The Minister may cancel a visa that has been granted to a person if:

(a)the Minister reasonably suspects that the person does not pass the character test; and

(b)the person does not satisfy the Minister that the person passes the character test.

It is not necessary to go into the details of why the third defendant reached the relevant conclusions, save to say that the plaintiff was convicted of certain criminal offences.  On 9 August 2005 the plaintiff lodged with the Administrative Appeals Tribunal an application for review of the third defendant’s decision.  Initially that was dismissed on grounds of time but Deputy President Walker directed that the matter be reinstated and the matter was in due course heard by Deputy President Purvis.  On 27 November 2006 the Tribunal affirmed the cancellation decision. 

On 22 January 2007 the plaintiff applied to the Federal Court seeking a declaration that the cancellation decision was null and void.  Justice Rares made consent orders that the application was to be discontinued on the basis that the Federal Court of Australia did not jurisdiction to grant that relief.  It is to be noted that the application to the Federal Court was a challenge to the cancellation decision.  It was not an appeal from the Administrative Appeals Tribunal’s decision.  It is also relevant to note that under section 476A(1)(b) the Federal Court had original jurisdiction to review the Tribunal’s decision under section 500 (see section 500(1)(b)). 

On 15 May 2007 the plaintiff commenced the present proceedings in this Court. It is common ground between the parties that the proceedings should not be remitted either to the Federal Court of Australia or to the Federal Magistrates Court. The plaintiff advances two arguments of substance and Mr Killalea, on behalf of the plaintiff, advanced them both in writing and the first one orally with considerable subtlety. The first is that the second defendant had no power to cancel the visa on the ground that the visa had not been “granted” within the meaning of that word in section 501(2) since in effect he got it by operation of law. It was conferred on him by some means other than grant. The second argument is that the plaintiff had a fundamental statutory right to stay in Australia which could only be curtailed expressly and that the words of section 501 are insufficiently clear to have done this.

One way of looking at the application is that it is a challenge to the decision of the delegate of the Minister and that is the way in which the plaintiff’s written submissions have framed it.  Another way of looking at the application is that it is a challenge to the decision of the Administration Appeals Tribunal.  So far as it is used as a challenge to the delegate’s decision, there is a problem in that the time limits within which application is to be made for certiorari, namely, six months of the relevant decision, have not been complied with.  In any event, so far as the other relief is discretionary, the delay points against the application which the plaintiff makes for an enlargement of time.

If on the other hand the matter is viewed as a challenge to the Administrative Appeals Tribunal, there are two problems.  One is that the present arguments on the two grounds of substance I have outlined were not put to the Administrative Appeals Tribunal before which the plaintiff was largely self-represented, save that his current counsel did participate to a degree as amicus curiae.  Further, the argument was not put to the Federal Court of Australia to which court an appeal or an application for review could have been brought. 

Counsel for the second defendant, Mr Johnson, submits that where the legislature has given a full statutory right of appeal, in general it is a strong factor against granting discretionary relief in this Court that that right was not employed.  I would agree with that submission and I would add that it is also a factor that the argument was not deployed before the Administrative Appeals Tribunal itself.  It is wrong to think that applications can be made to a single Judge of this Court for referral of applications for constitutional writs to the Full Court without matters having been ventilated in such courts below as have jurisdiction to engage in that process.  Things stand differently where what would ordinarily be the other appropriate courts have no jurisdiction, as sometimes they do not.

The plaintiff drew attention to the fact that the main relief he is seeking is the writ of habeas corpus. That to me does not appear to be significant. The plaintiff will not be able to improve his immunity from deportation without nullifying what I would see as the present operative order in relation to his status, namely, the order of the Tribunal, or nullifying the decision of the third defendant under section 501. From that point of view, the writ of habeas corpus is really a remedy which is ancillary to the others but of no independent use unless they are granted. The plaintiff submitted that section 196(4) of the Act was relevant. It provides in substance that:

If the person is detained as a result of the cancellation of his or her visa under section 501, the detention –

that is to say detention under section 189 –

is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non‑citizen.

The plaintiff submitted that for him to have gone to the Federal Court after the Tribunal’s decision and ventilated the arguments that I have summarised earlier and then appealed from that court to a Full Court or, alternatively, to have sought special leave to appeal to this Court would be a process which would take two years and, given the fact that he is in detention, it is better for him that the matter be heard now in this Court.  It was also submitted that it is better for the second defendant, in whose interest it is to have the points of substance raised and determined.  That reasoning, in my opinion, does not outweigh the difficulties of delay already outlined and the difficulties associated with a failure to exhaust remedies.

For those reasons I would refuse the application for an extension of time.  I would dismiss the summons and dismiss the application itself.  I so order.  Do you seek costs?

MR JOHNSON:   Yes, we do seek costs, your Honour.

HIS HONOUR:   Can you say anything about that, Mr Killalea?

MR KILLALEA:   Nothing about costs.  Can I just clarify, your Honour refused the application for extension of time but dismissed the ‑ ‑ ‑

HIS HONOUR:   I dismissed the summons and dismissed the application for the writs themselves.  You have filed, I think, which is conventional, an application for the writs.

MR KILLALEA:   Yes.

HIS HONOUR:   And a summons.

MR KILLALEA:   Yes.

HIS HONOUR:   And I am dismissing everything.

MR KILLALEA:   That is without a finding on the arguments I have ‑ ‑ ‑

HIS HONOUR:   That is right, yes.

MR KILLALEA:   Thank you, your Honour.

HIS HONOUR:   Counsel for the plaintiff says nothing against the costs order and the orders I have already pronounced should have added to them an order that the plaintiff pay the second defendant’s costs.  Lest it be unclear, I should add something to the reasons I have already given.  In view of the problems of delay and a failure to exhaust remedies I have discussed above, there is no point in proceeding to a consideration of the merits of the substantive arguments advanced by the plaintiff in relation to the two grounds relied on.  It follows from that that the orders I have already indicated must be made.  If there is nothing else, I will adjourn the Court.

MR KILLALEA:   If the Court pleases.

AT 12.01 PM THE MATTER WAS CONCLUDED