Guo v Minister for Immigration and Citizenship
[2013] HCATrans 290
[2013] HCATrans 290
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S123 of 2013
B e t w e e n -
QI GUANG GUO
Plaintiff
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Defendant
Summons
BELL J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON THURSDAY, 14 NOVEMBER 2013, AT 9.55 AM
Copyright in the High Court of Australia
GI GUANG GUO appeared in person.
MS R. GRAYCAR: May it please the Court, I appear for the respondent. (instructed by Clayton Utz Lawyers)
HER HONOUR: Mr Guo, you are appearing today without a legal representative. Is that so?
MR GUO (through interpreter): Yes, your Honour.
HER HONOUR: Yes. Now, Mr Guo, you have filed two affidavits: the first sworn on 26 June 2013 and a second affidavit affirmed by you on 11 October 2013.
MR GUO (through interpreter): Yes, your Honour.
HER HONOUR: You wish the Court to take into account the matters set out in each of those affidavits?
MR GUO (through interpreter): Actually, your Honour, I do not quite understand what was on the affidavit. A friend of mine, also detained in the Villawood Detention Centre, prepared this for me. Therefore, I would request your Honour to contact my friend in Villawood Detention so that he can talk on my behalf.
HER HONOUR: Ms Graycar, this is an application for the plaintiff to be assisted by a friend at the Villawood Detention Centre. I would rather take that to be an application to adjourn the hearing.
MS GRAYCAR: Well, your Honour, the defendant would resist any such application.
HER HONOUR: Yes. Mr Guo, this matter is listed for hearing today. The defendant opposes any adjournment of the proceedings to enable you to have someone from the Villawood Detention Centre come to the Court to assist you.
MR GUO (through interpreter): Actually, your Honour, you can give him a call so that ‑ ‑ ‑
HER HONOUR: Mr Guo, the matter is listed for hearing. I appreciate that you may have received some assistance from a friend in the Villawood Detention Centre but it will be necessary for you to present your case as best you can. The Court is not in a position to make contact on your behalf with the person who has assisted you so the matter will proceed. I might inquire, at this stage, if you have in front of you the two affidavits to which I have referred?
MR GUO (through interpreter): No, I do not have – I have another submission for you.
HER HONOUR: I will come to that in a moment. I think that Ms Graycar, who appears for the defendant, may be in a position to give you copies of your affidavits, Mr Guo, so that you can tell me whether you wish to rely on them or not.
MR GUO (through interpreter): Okay. Given the fact that I do not understand much English and the fact that I do not understand much of the law, what should I do, your Honour?
HER HONOUR: I am not in a position to give you advice, Mr Guo. The two documents that you have in front of you – would you just look at them?
MR GUO (through interpreter): I do not understand, your Honour.
HER HONOUR: Mr Guo, you see your signature on those documents? Mr Guo, they were prepared with the assistance of a person at the Villawood Detention Centre, were they?
MR GUO (through interpreter): Yes, your Honour.
HER HONOUR: In order to help you with your present application?
MR GUO (through interpreter): Yes.
HER HONOUR: They set out some of the history of the matter and your explanation for the delay in bringing the proceeding.
MR GUO (through interpreter): Do you mind if you repeat it, your Honour?
HER HONOUR: The affidavits set out the background to your case and your explanation for why it has taken so long to bring the proceedings.
MR GUO (through interpreter): Yes.
HER HONOUR: Do you wish me to take that material into account in deciding your application?
MR GUO (through interpreter): Probably, your Honour. However, in order for you to make the decision I think that you should have contacted them by…..extent of the law.
HER HONOUR: Very well. I will take into account both your affidavits as read in the proceedings, subject to any objection by you, Ms Graycar – is there any objection? Now, in addition, Mr Guo, you also filed an affidavit sworn by Richard John Baird, a solicitor, to which were annexed – or to which were exhibited a number of documents. I am sorry, is that ‑ ‑ ‑
MS GRAYCAR: That is the defendants.
HER HONOUR: I am sorry, thank you. Very well. Mr Guo, do I understand that you have some further submissions in writing that you wish the Court to consider?
MR GUO (through interpreter): Yes, your Honour.
HER HONOUR: Yes, very well. Have you shown those submissions to Ms Graycar?
MR GUO (through interpreter): Not yet.
HER HONOUR: Do you have a copy of those submissions?
MR GUO (through interpreter): Yes, I have got five copies, your Honour.
HER HONOUR: Would you give a copy of the submissions to Ms Graycar. I will come back to those submissions in a moment after Ms Graycar has had an opportunity to look at them. Now, you have also filed written submissions dated 27 September 2013. I have those written submissions in front of me and I will take into account your further submissions in due course, but I just wish to take up a matter with Ms Graycar relating to the evidence that the defendant relies on. Do you understand?
MR GUO (through interpreter): Yes, your Honour.
HER HONOUR: Ms Graycar, I understand you read the affidavit of Richard John Baird and tender the exhibits to that affidavit.
MS GRAYCAR: I do, your Honour.
HER HONOUR: Now, Mr Guo, the defendant, that is the Minister for Immigration and Citizenship, relies on a number of documents that are exhibited to an affidavit by Mr Baird. Ms Graycar, do I take it a copy of this was served on ‑ ‑ ‑
MS GRAYCAR: Yes, your Honour.
HER HONOUR: I am told, Mr Guo, that the affidavit of Mr Baird and the documents attached to it were served on you. Do you agree with that?
MR GUO (through interpreter): Actually, your Honour, I do not understand the content of the documents.
MS GRAYCAR: If I could assist, your Honour?
HER HONOUR: Yes, thank you, Ms Graycar.
MS GRAYCAR: I am instructed by my solicitor that he has been advised that the copy of the exhibit was given by Mr Guo to Parish Patience Solicitors representing him in another matter.
HER HONOUR: I see. I understand. Would that be a spare copy then?
MS GRAYCAR: Yes, your Honour.
HER HONOUR: Mr Guo, Ms Graycar tells me that it is her solicitor’s understanding that you supplied all those documents that you see in front of you now in the grey folder to a firm of solicitors who were giving you assistance in relation to your migration status. Now, Ms Graycar has supplied you with a copy of the material. That is the material that the defendant relies on in its case on your application. Do you object to any of the material?
MR GUO (through interpreter): I have never seen any of these, your Honour.
HER HONOUR: Well, Mr Guo – I wonder, Ms Graycar, can you confirm that the affidavit was served on ‑ ‑ ‑
MS GRAYCAR: I believe my solicitor does have ‑ ‑ ‑
HER HONOUR: Perhaps you could just make an inquiry and confirm that.
MS GRAYCAR: Well, we certainly have a copy of the letter sending it to Mr Guo at Villawood on 24 October 2013. I am happy to hand it up.
MR GUO (through interpreter): Sorry, your Honour, Ms Graycar mentioned 24 October 2013. I do not understand what documents were sent to me at that date.
HER HONOUR: Ms Graycar informs me that a letter enclosing the affidavit of Mr Baird and the documents that are exhibited to it was sent to you at the Villawood Detention Centre on 24 October of this year.
MR GUO (through interpreter): Okay. I have never seen this in person and I do not understand much English. Anyway, a friend of mine saw these on my behalf.
HER HONOUR: Did you say a friend of yours saw this on your behalf?
MR GUO (through interpreter): Yes.
HER HONOUR: Was that your friend at the Villawood Detention Centre?
MR GUO (through interpreter): Yes.
HER HONOUR: Very well. You understand, Mr Guo, that these documents are documents relied on by the Minister in opposing the claims for relief that you make. They set out the history of your dealings with the Department of Immigration in relation to the visa determination made in 1996. You understand that?
MR GUO (through interpreter): I understand. I know.
HER HONOUR: Very well. I propose to receive that material – you may take the affidavit as read, Ms Graycar. Do I take it that completes your evidentiary case?
MS GRAYCAR: Yes, your Honour.
HER HONOUR: Now, Mr Guo, returning to your case, you have placed before me the evidence that you want to put before the Court. Would you now hand up those additional submissions that you wish me to take into account?
MR GUO (through interpreter): Yes.
HER HONOUR: Yes, thank you. I will hand you back – do you have a copy of those submissions?
THE INTERPRETER: No.
HER HONOUR: I will hand you back a copy for your own purposes, Mr Guo, and I will just take a moment to read this material. You may sit down, Mr Guo, while I read your submissions. Yes, I have read that material. Is there anything further you wish to put to me, Mr Guo?
MR GUO (through interpreter): Not at the moment.
HER HONOUR: Yes, thank you, Mr Guo, you may sit down. Yes, thank you, Ms Graycar.
MS GRAYCAR: Well, your Honour, on 10 December 2004, the Federal Court dismissed an appeal against a decision of the AAT which was made on 9 July 2004. That decision was a decision not to reinstate an application that the plaintiff had made in November 1996 for review of the decision of 25 October 1996, the decision in relation to which he seeks review here. That 1996 application had been dismissed in November 1997 as a consequence of the plaintiff’s failure to attend at the hearing or to give reasons for seeking the adjournment he sought.
HER HONOUR: Ms Graycar, I might just interrupt you to say I have absorbed something of the history of the proceedings from your written submissions that were filed on 7 November 2013. As I read the further submissions that Mr Guo relies on today, the only additional matter would seem to be an assertion that the decision was vitiated by bad faith arising out of correspondence annexed to the material – or rather forming part of the material behind tab 20 at page 28 of that material. It is marked ‘C’ S7 and is a letter from Janet Baumhammer dated 30 August 1995 directed to Detective Sergeant O’Connor at the Drug Enforcement Agency.
MS GRAYCAR: Your Honour, I recall the letter but I am having trouble finding the page number. There are so many different page numbers.
HER HONOUR: Indeed, there are. It may be – my copy, Ms Graycar, has a number 17 on the lower right‑hand page. As I say it forms part of the material behind tab 20 in my bundle.
MS GRAYCAR: I am there, tab 20. Yes, your Honour, I have it now. Does your Honour wish to hear me on the bad faith?
HER HONOUR: Perhaps, Ms Graycar, I would be grateful for your submission on whether I am right in my understanding that seems to be the only additional matter.
MS GRAYCAR: Yes. There is also a reference to material that was not given to the plaintiff despite repeated applications on freedom of
information. That is in paragraph 10 of his submissions and I can certainly take your Honour to a response to that material. The plaintiff’s solicitor made a number of freedom of information applications which can be found at tab 11, behind tab 11. The material was clearly received by the plaintiff’s solicitors because it is referred to and it is also relied upon in an application made, behind tab 20, for a protection visa where all of this material, including the letter to which your Honour has taken me, was included as an annexure to the protection visa application made by the plaintiff in December 2004.
HER HONOUR: As far as the allegation of bad faith goes, it appears to be based on a contention that there was some impropriety associated with the Department making inquiries of the police concerning the character test under section 501.
MS GRAYCAR: As I understand it that is the case.
HER HONOUR: Well, I do not think I really need to hear further from you on that, Ms Graycar.
MS GRAYCAR: Thank you.
HER HONOUR: I might just take a matter up with Mr Guo. Mr Guo, you have seen the submissions that the Minister relies on for his contention that I should refuse to enlarge the time in which you are permitted to bring this application. Do you understand that?
THE INTERPRETER: Your Honour, do you mind if you say that again?
HER HONOUR: Yes. I am asking Mr Guo if he recalls seeing the written submissions filed by the Minister opposing the grant of the relief that Mr Guo claims.
THE INTERPRETER: Thank you, your Honour.
MR GUO (through interpreter): No, I have never seen them.
MS GRAYCAR: Your Honour, could I just draw your attention to paragraphs 1 and 2 of these supplementary submissions which refer to the submissions of the defendant.
HER HONOUR: Thank you. Mr Guo, it is pointed out to me that in your outline of submissions handed to me today, reference is made to the Minister’s written submissions.
MR GUO (through interpreter): Actually, I think…..on to you a few days ago.
HER HONOUR: I am sorry.
MR GUO (through interpreter): …..on to you a few days ago.
HER HONOUR: I am sorry, Mr Interpreter, could you just repeat that?
MR GUO (through interpreter): I am sorry. I got these a few days ago.
HER HONOUR: That is the written submissions were received a few days ago. Yes, I understand. Very well. Now, Mr Guo, you understand that the Minister says that 17‑year delay is an extraordinary delay and that it has not been satisfactorily explained.
MR GUO (through interpreter): Who should explain these to me?
HER HONOUR: That is a reference to the fact that you state in your affidavit that your legal advisers did not tell you about this particular avenue of challenge to the decision made in 1996.
MR GUO (through interpreter): I do not know who is in the position to let me know the reason why.
HER HONOUR: Yes. Is there anything else you want to put to me, Mr Guo?
MR GUO (through interpreter): Not at the moment.
HER HONOUR: Yes, thank you. You may sit down, Mr Guo.
The plaintiff claims constitutional and prerogative writ relief arising out of the decision of the defendant’s delegate to refuse to grant him a Class 815 (Permanent) Entry visa. The decision was made on 25 October 1996. The plaintiff applies for an order enlarging the time in which to bring the proceeding. In support of that application he relies on his affidavits made on 26 June and 11 October 2013. The defendant relies on the documents that are exhibited to the affidavit of Richard John Baird sworn 23 October 2013.
The plaintiff appears personally and has presented his case with the assistance of an interpreter. He relies largely on written submissions which were prepared with the assistance of a person at the Villawood Detention Centre. In addition to the written submissions filed on the plaintiff’s behalf on 30 September 2013, he has handed up additional submissions responding to those filed by the defendant.
The impugned decision took into account the determination of the Deputy Secretary of the Department of Immigration and Ethnic Affairs, Mr Richardson, a delegate of the defendant, made pursuant to section 501 of the Migration Act 1958 (Cth), as it then stood, that if the plaintiff were allowed to remain in Australia he would represent a danger to the Australian community.
The plaintiff commenced proceedings before the Administrative Appeals Tribunal seeking a review of the decision to refuse his application for a Class 815 (Permanent) Entry visa. He failed to appear on the date fixed for the hearing and his application was dismissed on 3 November 1997. More than five years after the dismissal order was made the plaintiff applied to the Tribunal to reinstate his application or to extend time in which to bring a fresh application to review the decision. The plaintiff was represented by counsel on the hearing of these applications. The applications were dismissed on 9 July 2004. Deputy President Handley found the sequence of events leading to the Tribunal’s dismissal of the application “were entirely of the applicant’s own making”.[1]
[1] Guo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 729 at [45].
The plaintiff commenced proceedings in the Federal Magistrates Court under section 39B of the Judiciary Act 1903 (Cth) challenging the Tribunal’s determination. The proceedings were transferred to the Federal Court of Australia. Justice Wilcox gave the plaintiff leave to invoke the Federal Court’s jurisdiction under the Administrative Appeals Tribunal Act 1975 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth), in addition to the section 39B claims. The plaintiff was represented by counsel at the hearing in the Federal Court. On 10 December 2004, the Federal Court dismissed each of those claims. No application for special leave to appeal from those orders was made.
An application for a remedy in the exercise of this Court’s original jurisdiction in relation to a migration decision must be made within 35 days of the date of the decision[2]. The Court may extend that period if it is satisfied that it is in the interests of the administration of justice to do so.[3] Among the plaintiff’s claims for relief are for certiorari to quash the delegate’s decision and mandamus to compel the defendant to determine the plaintiff’s application for a visa according to law. The application is grossly out of time under the High Court Rules 2004 (Cth).[4] Any period of time fixed by the rules may be enlarged by order of the Court.
[2] Migration Act 1958 (Cth), s 486A(1).
[3] Migration Act 1958 (Cth), s 486A(2).
[4] rr 25.06.1 and 25.07.2.
The principles to be applied in the determination of an application for the enlargement of time are as stated in Re Commonwealth; Ex parte Marks.[5] They include, in the case of writs directed at the decisions of public bodies or officials, that there is a public interest in an end to litigation about the efficacy of such decisions.[6] The time limits are to be applied in all but exceptional cases. The delay in Marks was of the order of 17 months. Independently of the merits of the case, Justice McHugh questioned whether a delay of that length might ever admit of an extension of time to quash a decision absent some conduct of the public body or official that had brought about the delay.[7]
[5] (2000) 177 ALR 491 at [13]–[16] per McHugh J.
[6] Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 at 495 [13], [15].
[7] Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 at 495 - 496 [16].
In this case, the delay under the rules is of the order of 17 years. The only explanation offered for that delay is that the various solicitors and counsel who have advised the plaintiff on matters touching on his status under the Migration Act did not inform him of the mechanism of challenge by way of the constitutional and prerogative writs in the Court’s original jurisdiction.
The plaintiff has taken no steps since December 2004 to challenge the decision to refuse him a Class 815 (Permanent) Entry visa prior to the commencement of the present proceedings. However, he has brought a number of proceedings in the Federal Magistrates Court, the Federal Court and in this Court seeking to challenge various decisions made by the defendant respecting his status under the Migration Act. There is no reason to conclude that the plaintiff has been without competent advice concerning arguable avenues of redress respecting decisions that affect his status under that Act.
The plaintiff has not provided a satisfactory explanation for the delay. Before determining his application to enlarge time there should be reference to the prospects of success with respect to the substantive relief claimed. Claims are made on grounds asserting a denial of procedural fairness, a constructive failure to exercise jurisdiction and that the delegate took into account irrelevant considerations in making the determination. A discrete claim for habeas corpus, based upon the assertion that the plaintiff is the holder of a current protection visa, is also made.
The two grounds that charge a denial of procedural fairness concern the delegate’s asserted failure to consider the best interests of the plaintiff’s child as a primary consideration in making the determination. The record of the decision states that the decision‑maker, Mr Stephens, took into account Mr Richardson’s prior decision under section 501. Mr Stephens recorded the acceptance of the plaintiff’s account of his relationship with his wife and “that the interests of the child are of central importance as per the decision in Minister for Immigration and Ethnic Affairs v Teoh”. Prior to the delegate making that decision, the plaintiff’s solicitors had made submissions to the Department of Immigration and Multicultural Affairs that the application for a permanent entry visa should not be refused, having regard to the interests of the plaintiff’s seven year old son. Attention was directed to the statements of this Court in Teoh.[8] The procedural fairness grounds lack any reasonable prospect of success.
[8] Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.
The plaintiff’s third ground contends that Mr Stephens took into account an irrelevant consideration, namely a determination respecting a Class 816 visa, for which the plaintiff did not apply. This is a reference to a statement in the record of the decision “I have taken account of the decision of the Minister’s delegate to refuse the granting of a class 816 permanent entry visa under Section 501 of the Migration Act”. The reference is to the decision of Mr Richardson. That decision is recorded in manuscript on a minute prepared by DL Westcott dated 16 September 1996. The minute is headed “Class 815 Applicant”. The reference in the record of Mr Stephens’ decision to a visa Class 816 is apparently a typographical error.
The next ground of challenge asserts a constructive failure to exercise jurisdiction based upon the plaintiff’s assertion that “at all relevant times before the decision, I was not and never had been convicted of any criminal offence on which my visa should have been refused”. The claim misunderstands the operation of section 501 as that provision stood at the time of the decision.
As noted earlier in these reasons, it was open to the Minister to refuse to grant a visa if, relevantly, the Minister was satisfied that if the plaintiff were allowed to remain in Australia the plaintiff would be likely to engage in criminal conduct or represent a danger to the Australian community. The delegate’s decision accepted that on the balance of the evidence before the delegate, the plaintiff, if allowed to remain in Australia, represented a danger to the Australian community.
The next ground of challenge complains that “the Minister had regard to sensational irrelevant materials and made erroneous findings and reached mistaken conclusions”. The only particular of this ground in the application for an order to show cause is that at the time of the decision the plaintiff had not been convicted of any criminal offence “on which my visa should have been refused”. This ground, too, misapprehends the statutory criteria under section 501.
An additional matter relied on in support of this aspect of the proposed challenge is set out in the written submissions handed up on the hearing. It asserts bad faith and is based on a letter dated 30 August 1995 addressed by an acting Assistant Director within the Department of Immigration and Ethnic Affairs addressed to a detective sergeant attached to the Drug Enforcement Agency of the New South Wales Police Service. It seeks information from that service relevant to a consideration of matters to which section 501 is directed. There is nothing in the material filed in support of the application or in the written submissions to give colour to the belated assertion of bad faith.
I accept the defendant’s submission that none of the grounds establish that the plaintiff has an arguable case for the substantive relief that he claims. In the event time were enlarged, and if contrary to that submission the plaintiff were to succeed, the defendant notes that relief should be refused in the exercise of discretion. There is force to that submission.
The delay in bringing the proceeding has rendered moot the central proposition advanced by the plaintiff which concerns the weight to be given to the interests of his then infant child in determining the application. That child, born on 25 December 1988, was aged seven at the date of the determination and is now about to turn 25. As the defendant submits, there is no utility in setting aside the decision under review and reconsidering it by reference to the best interests of that child.
I turn, finally, to the claim that the plaintiff is being unlawfully detained. On 17 June 1991, an application was lodged on the plaintiff’s behalf for a Class 437 (PRC (Temporary)) entry permit. That application was granted on 30 January 1992. The entry permit allowed the plaintiff to remain in Australia until 30 June 1994. On 29 June 1994, the plaintiff applied for the Class 815 PRC (Permanent) entry permit that is the subject of the present proceedings. At times since the making of that application, the plaintiff has been the holder of either a criminal justice or a bridging visa. Nothing in the material exhibited to Mr Baird’s affidavit, which includes details of the applications for and issue of visas to the plaintiff, substantiates his claim to be the holder of a current protection visa or any visa giving him a right to remain in Australia and for that reason supporting his claim for the issue of a writ of habeas corpus.
For these reasons, leave to enlarge the time in which to bring the application to show cause is refused. The application is dismissed with costs.
The Court will adjourn.
AT 11.02 AM THE MATTER WAS CONCLUDED
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