Guan v Minister for Immigration & Citizenship & Anor

[2007] HCATrans 430

[2007] HCATrans 430

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S318 of 2007

B e t w e e n -

XIAOYING GUAN

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

MIGRATION REVIEW TRIBUNAL

Second Defendant

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 13 AUGUST 2007, AT 10.00 AM

Copyright in the High Court of Australia

MR R.W. KILLALEA:   May it please the Court, I appear for the applicant, your Honour.  (instructed by City Law Solicitors)

MR M.A. WIGNEY:   May it please the Court, I appear for the first respondent.  (instructed by Clayton Utz)

HIS HONOUR:   Mr Killalea, you rely on an affidavit filed on 19 June 2007 by your client?

MR KILLALEA:   I do, your Honour.

HIS HONOUR:   Do you have any objection to that, Mr Wigney?

MR WIGNEY:   No, your Honour.

HIS HONOUR:   And you do not wish to cross-examine the applicant?

MR WIGNEY:   No.

HIS HONOUR:   And you have no other evidence, Mr Killalea?

MR KILLALEA:   No, your Honour.

HIS HONOUR:   You have no evidence, Mr Wigney?

MR WIGNEY:   No, your Honour.

HIS HONOUR:   I have read everything else that has been filed.  In fact, I read that as well.  What would you wish to say, Mr Killalea?

MR KILLALEA:   If I could just take your Honour to the affidavit and the second and third entries on that chronology.

HIS HONOUR:   The first to which you refer is the one beginning “In or about July 2005”?

MR KILLALEA:   Yes.  I ask your Honour to cross out that one, it is not properly supported.

HIS HONOUR:   I hesitate to interfere with an original document.

MR KILLALEA:   Yes, indeed.

HIS HONOUR:   I will just put a cross against it on a sticker.

MR KILLALEA:   Yes.  I just do not look to the second and third entries on that chronology.  It seems clear from the attachment at the Minister’s response at attachment C.

HIS HONOUR:   Attachment C to what?

MR KILLALEA:   Attachment C to that affidavit, annexure marked C, the Minister’s letter of 2 April 2007, and it opens with “I refer to the letter of 6 October  2005” on behalf of the applicant.  So it seems that the first request that went off to the Minister was on 6 October 2005 and I see my friend picked that up in his submissions.  So the earlier references to July are not supported.

HIS HONOUR:   Just while I think of it, I should record the fact that the Migration Review Tribunal, the second defendant, has filed a submitting appearance.

MR KILLALEA:   Thank you, your Honour.  So the applicant’s submission is simply this, your Honour, that if I take your Honour to the decision record of the Migration Review Tribunal of 22 June 2005 – it is exhibit A, exhibit A to the affidavit – the Tribunal at paragraph 5 identifies the legislative material that is relied upon.  I have no issue about that.  At paragraph 9 the Tribunal has recorded part of departmental policy known as PAM3, which I understand is Policy Advice Manual, departmental policy there under 4.7 which refers to criterion 820.211(2)(d)(ii).  The significance of that criteria, your Honour, is that the applicant must meet particular criteria.  The 820.211 refers to criteria set out in Schedule 2 to the Migration Regulations, as they then were, and it provides that:

(d)in the case of an applicant who is not the holder of a substantive visa –

and that is this applicant, then – “either:  (i)” which is not applicable, or –

(ii)the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

There is no argument that the applicant does not meet the Schedule 3 criteria so it is incumbent upon the applicant to satisfy the Tribunal that there are compelling reasons for not applying those criteria.  That is set out in paragraph 7 above.  Going to paragraph 9, the policy is an overview of the meaning of the criteria at 820:

Compelling reasons

In assessing whether there are compelling reasons, officers are to take into account the circumstances which the Minister considers to be compelling.  These circumstances are that

·          there are Australian-citizen children from the relationship –

which there are not –

·          the applicant and their sponsor are already in a long-standing spouse relationship (taken to be a relationship which has existed for at least 2 years.)

In these circumstances, it is considered that the hardship which could result in applying the Schedule 3 criteria is sufficiently compelling to justify not applying the criteria.

In relation to that second dot point, which is the only part of that policy which the applicant impugns in these proceedings and how it has been applied, your Honour will find that considered at paragraph 27 in particular:

The evidence of the visa applicant and the sponsor in statement provided to the Department and the Tribunal was that their spousal relationship commenced around 17 August 2002.  The visa application was lodged on 6 February 2004.

That criteria I took your Honour to, or the one that mentioned 820.211, is criteria to be satisfied at the time of application.  So it means at the time of application, as the Tribunal found, the duration of the relationship at that time was about 18 months:

At the time of application the couple has been in the relationship for approximately 18 months.  PAM sets out that a relationship is of long-standing if it has existed for 2 years.

It does, as a matter of policy that is correct:

The Tribunal finds that the relationship is not long-standing.  The Tribunal finds that the length of the relationship is not a compelling reason for not applying the Schedule 3 criteria.

The applicant says that the tribunal has done no more than apply the policy, it has applied that policy inflexibly, it has simply restated the policy.  It has said that it is a long-standing relationship of two years, this one is not, therefore there is no compelling reason to not apply the Schedule 3 criteria.  That is the first ground which the applicant raises before this Court.  That is the first ground within the application for an order to show cause.  The second ground is that the Tribunal failed to take relevant considerations into account in considering and determining the application before it and, in particular, it failed to consider cumulatively two factors; that at the time of application the plaintiff had been in the de facto relationship for 18 months and that at the time of application the plaintiff had been lawfully in Australia since 11 February 1997.  That is seven years. 

The relevance of that, your Honour, I submit is this, that when considering the prospects of a relationship going forward one would probably look at how long the relationship has existed, what has been done in that relationship, how is that relationship on the face of it and, secondly, in the context of a person being foreign to this country, it must be a relevant consideration that they are not new to this country, that they have in fact been in this country for seven years and, in that sense, settled here and having settled here for seven years, overlay that with a relationship that has been going for 18 months, then that, I submit, is a proper factor to consider in determining whether or not there are compelling reasons not to apply the Schedule 3 criteria.

Your Honour will see from the Tribunal’s decision that it made no such evaluation.  At paragraph 25, which is where it begins its consideration of the application of the Schedule 3 criteria, were there are compelling reasons not to, the Tribunal found that, “the visa applicant was lawfully in Australia after 14 December 2001”.  At 26 they found that:

since her first arrival in Australia on 11 February 1997, the visa applicant has at all times held a visa.  However, the Tribunal does not accept that this amounts to a compelling circumstance for not applying the Schedule 3 criteria.

The Tribunal has correctly not felt itself bound by the particular instances of what would amount to compelling reasons set out in the PAM3, there are only two of them.  It has considered other factors as well, but it has considered in a stand alone way.  The applicant has been lawful for a long time.  Well, that is of no consequence.  Paragraph 27, the applicant fails the long-standing relationship test set out as a matter of policy.  Paragraph 28, the finding that there was a termination of pregnancy.  Insofar as that might relate to the first factor set out in the policy in PAM3 as to whether there are children, it perhaps goes to that, but in any case it is treated as a stand alone consideration. 

Paragraph 29, again there is an application of departmental policy in the context of the policy stating that “an assessment” of the relevant relationship “as genuine would not be sufficiently compelling”.  Be that as it may, there was evidence before the tribunal which would suggest it was a genuine relationship and the factors are set out at paragraph 14.  When I say “factors”, just instances of the two relevant persons living together.  But again the matter discussed at 29, which of itself would seem to be an inflexible application of policy, nevertheless it is something that is simply considered alone. 

So there has been nothing in the Tribunal’s decision that suggests other than that.  The matter of living 18 months in Australia and the matter of being here from 1997, there is nothing to suggest that those things were cumulatively considered to see whether those two things together might compel a determination of the application without satisfaction of the Schedule 3 criteria.  So they are the two grounds the applicant relies upon as manifesting jurisdictional error. 

The issue which I must address with your Honour, of course, is the matter of apparent delay. I say “apparent” only in the sense of allowing that delay can be seen in a number of ways. What your Honour can see is, if I take you back to the chronology, a decision was made on 22 June 2005 and then from the letter at exhibit C a reference by the Minister to a letter of 6 October seeking his intervention under section 351 of the Migration Act.  As my friend points out, there is a delay, I think he says three months, it gets close to four months, but it is a delay or a time lapse of between three and four months before anything is done, anything of substance is done in relation to the visa status of the applicant. 

If the applicant had gone to this Court in October 2005 instead of going to the Minister, then the applicant would have been in time to seek certiorari and would have been four to six weeks, approximately six weeks I think, out of time to seek an order of mandamus. I submit that your Honour can properly consider the application under section 351 in that light, that is, if it had come to this Court, albeit that it would have been late in relation to mandamus by about six weeks. That is not such a delay as would warrant this Court in the broad refusing to consider such application. Put another way, the applicant has gone to the Minister in good time and sought the Minister’s intervention under section 351.

Now, my friend makes the point that nothing is then done until January 2007, but the matter was in the Minister’s hands.  I think I can safely say that for the plethora of cases that go through this Court and are reported in the other courts, in the Federal Court and the Federal Magistrates Court, there is nothing unusual about such delay.  Matters that go to the Minister might be dealt with anywhere in a time frame of more or less one month to several years.  It is just a matter of as and when the Minister has the time to deal with these matters.  So I submit there is nothing adverse to the applicant in not having chased up the matter.  Once the application is made to the Minister, then the matter is in the Minister’s hands.

My friend makes the point in his submissions that this Court should in any case not extend time for this application to be heard and my friend refers to a number of decisions of the Federal Court in particular and, indeed, the Full Federal Court, which are to the effect as he sets out in paragraph 5, if I can just read that:

The weight of authority –

of the decisions he cites –

is that this is not a valid reason –

that is the fact of going through the Minister under 351 –

that excuses the delay because an application pursuant to section 351 may be taken to be an abandonment of any challenge to the decision of the Second Respondent and an implicit acceptance of its validity.

That issue has not been considered by the High Court so far as I know.  My friend refers in his authorities there to M211 of 2003.  Does your Honour have that?

HIS HONOUR:   I am not sure.  Yes, I do now, thanks.

MR KILLALEA:   Yes, thank you, your Honour.  If I can take your Honour to paragraph 16 of that decision, “Extension of time principles”, reference Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491. The first indented paragraph makes the point that:

A ‘case would need to be exceptional’ before the time for commencing proceedings was enlarged by many months.  The explanation for such a delay is also a relevant consideration.

I take your Honour to what his Honour Justice McHugh said in Marks that is referred to in paragraph 18:

In Marks the applicant sought to quash the decision of a tribunal made seventeen months before he filed his application for relief.  McHugh J continued at [16]:

“Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay . . . the rules of court must prima facie be obeyed.

There is reference then to the time period for writs of certiorari and mandamus having been passed by and it closes:

In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.

In that case, and I take your Honour to paragraph 21, the applicant had made an application to the Minister under section 417, which is the provision allowing applications from the Refugee Review Tribunal, whereas in the present case it is an application under 351 from the Migration Review Tribunal, but the considerations would be considered to be much the same.  Paragraph 22, a decision of the Federal Court, Applicant M29 of 2001, and what his Honour Justice Weinberg said in relation to an application for an extension of time:

After referring to Marks his Honour said at [10] and [12]:

“In the present case, the decision of the RRT, which is impugned, was made on 26 November 1999.  The application to the High Court for an order nisi was not made until approximately sixteen months later, on 29 March 2001.  The only explanation proffered for the delay was the request that the applicants made, in October 2000, some eleven months after the RRT’s decision, for ministerial intervention pursuant to s 48B –

which is the second chance request to go back to the Tribunal again –

and s 417 of the Act.

which is akin to 351 in this matter. The applicant then comes before this Court with authority in the Federal Court indicating that – in fact, much as my friend has put in his submissions, that if one makes an application to the Minister under 351, or under 417 as the case might be, then one is taken to have abandoned seeking judicial review of the relevant decision. I submit to your Honour that proposition does not stand easily. The course which the applicant has taken in making an application to the Minister under section 351 is a course which is open to the applicant under the Migration Act.  The apparent benefit of making such an application as against making an application for review in the court is manifest, and that is cost.  In a simple sense, it costs nothing to make an application to the Minister.

In a case like this one where the applicant before the Tribunal was denied the grant of a visa because, amongst other things, she had only been in a relationship for 18 months at the time of application, when she had been in that relationship for some years at the time of decision is very much a consideration which the Minister could take account of when a matter is put to the Minister for consideration under section 351. So any applicant in the situation where they can avail themselves of section 351 might properly do so and having done so, the case then, as much as the Minister – and the Minister did take a substantial amount of time to consider that application and respond to it. I do not in any sense suggest that there is something pejorative in that. It is just a matter of fact, the ministerial response took some time.

It is apt to consider that delay, being a delay in the hands of the Minister under a statutory provision allowing such a request.  It is apt to consider that in terms of what his Honour Justice McHugh said in Marks case, as cited at paragraph 18, and that is:

extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay.

So in terms of waiting for the Minister to respond, then there is nothing pejorative, or the applicant should not be impugned, in respect of waiting for that matter to be dealt with.  So, in the event, the applicant has in good time and pretty well within the time allowed by the High Court Rules – if  the applicant had come to the High Court, say, for a short six week extended period in relation to seeking a writ of mandamus, the applicant in good time went to the Minister.  The Minister took his time, as he would, to respond and the applicant, not having got a favourable response from the Minister, has then come to this Court in good time thereafter.

I submit that your Honour can be satisfied as to that as providing, one, a reasonable excuse for the delay and, two, insofar as the Court has indicated there ought be something exceptional about allowing for delay, then the statutory provision for the process under section 351, I submit, can properly be seen as exceptional in the general arena of administrative decisions. Those are my submissions, your Honour.

HIS HONOUR:   Yes, thank you, Mr Killalea.  I need not trouble you, Mr Wigney.

This is an application for constitutional writs, namely, prohibition, mandamus and certiorari, and for an injunction.  The background is as follows.  On 14 March 2003 the plaintiff had a business visa which expired.  On 6 February 2004 the plaintiff applied for further visas and that application was refused on 11 June 2004 by a delegate of the first defendant.

On 14 July 2004 the plaintiff applied to the second defendant, the Migration Review Tribunal, for review of the delegate’s decision. On 22 June 2005 the second defendant affirmed the delegate’s decision. About three and a half months later on 6 October 2005 the plaintiff applied to the Minister for the exercise of the discretionary powers granted to the Minister under section 351 of the Migration Act 1958 (Cth). In January 2007 the plaintiff reminded the Minister of that application.

On 2 April 2007 the Minister indicated that he was refusing to exercise his discretionary power under section 351. The plaintiff then, or at least the plaintiff’s solicitor then sought reasons for that refusal, which reasons were refused shortly thereafter. On 19 June 2007 the plaintiff filed the application to show cause, the summons, the affidavit and related documents to challenge pursuant to the constitutional writs the decision of the Tribunal.

The plaintiff has been represented by Mr Killalea who has spoken to written submissions and presented forceful and capable oral argument.  The first problem logically for the plaintiff is that it is necessary to extend time in relation to the writ of certiorari.  Rule 25.06.1 sets a limit of six months from the handing down of the decision of the Tribunal.  It is also necessary to seek an extension of the time in relation to the application for mandamus, the relevant period there being two months.  See rule 25.07.2.

The delay is nearly two years. The reason offered for the delay, or the reasons offered for the delay, cluster around the plaintiff’s request for the Minister’s discretionary power under section 351 to be exercised. There is a substantial amount of Federal Court authority that holds that a making of an application for the favourable exercise of a ministerial discretion is not a sufficient excuse for delay. Those cases hold that to make an application of that kind is to abandon a challenge to the legality of the Tribunal’s decision and implicitly an acceptance of its validity.

Mr Killalea referred to M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 where in paragraphs 16 to 18 some passages from Justice McHugh’s judgment in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 are set out. In those passages Justice McHugh said that where delay was substantial, that is to say, where it was necessary to enlarge time by many months, a case would need to be exceptional. He also said that the time limits set in the rules in relation to certiorari and mandamus should be rigidly applied “In all but very exceptional cases” where “more than one year had elapsed between the decision and the commencement of proceedings in this Court”.

Mr Killalea’s specific argument was as follows. He said to treat the application to the Minister as a abandoning any claim to judicial review was erroneous. The application under section 351 was a course which the applicant was entitled to take. It was a course which cost nothing, whereas litigation is obviously not cost free. Further, it was open to the Minister to take into account a matter which it was not open to the Tribunal or any court to take into account, namely, that while the applicant had been in the relationship she relied on for only 18 months before the visa was applied for she had continued in that relationship for some considerable time thereafter.

Attention was drawn to the fact that among the reasons which Justice McHugh gave for a possible conclusion that time might be extended were the circumstances where “some conduct of the respondent or the public body or official had brought about the delay”.  While Mr Killalea did not attack the delay on the part of the Minister as such, in effect, he said it was delay which the applicant was entitled to observe and entitled to rely on as interrupting the period of time between the Tribunal’s decision and when the present proceedings were filed.  In short, it was submitted that apart from a six week delay in relation to mandamus when one left out of account the period caused by the application to the Minister the applicant was either in time or not far out of time. 

I see no reason to disagree with the correctness of the Federal Court decisions to which attention was drawn in argument but which need not be set out here.  The process of seeking an administrative intervention on the one hand and the process of challenging the legality of the operative decision, which was the Tribunal’s decision, on the other are distinct processes.  The immigration status of persons is a matter to which questions of time are important and perhaps to which far too little attention is paid, but at least in this field it is clear that under the rules of the Court the constitutional writs have short time limits which, as Justice McHugh says, must be rigidly applied in all but very exceptional cases.  I would not regard the present circumstances as very exceptional.

In those circumstances, it is not necessary to go to the merits of the matters which the applicant wishes this Court to consider.  I will merely note the two grounds relied on.  One is that the Tribunal inflexibly applied policy.  The second is that the Tribunal failed to take into account together two key factors, one of which was the 18 month relationship which the applicant was party to and the other was her lawful residence in Australia since 11 February 1997.  It is not necessary or desirable to deal with the merits of those matters in view of the conclusion which I have arrived at that time should not be enlarged.

Accordingly, the summons and the application for the constitutional writs must be dismissed.  The Minister asks for costs and the dismissal must be with costs.  Thank you, gentlemen.

AT 10.37 AM THE MATTER WAS CONCLUDED