Gurung v MIMA
[2002] HCATrans 222
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P40 of 2002
B e t w e e n -
DHAN GURUNG
Applicant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
Application for an injunction
CALLINAN J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
FROM PERTH BY VIDEO LINK TO BRISBANE
ON FRIDAY, 7 JUNE 2002, AT 12.04 PM
(Continued from 7/5/02)
Copyright in the High Court of Australia
MR V.G. DE ALWIS: May it please your Honour’s Court, I appear for the applicant. (instructed by Migrant Lawyers)
MR P.R. MacLIVER: If it please your Honour, I appear for the Minister. (instructed by the Australian Government Solicitor)
HIS HONOUR: All right. Mr MacLiver, I do not know whether you have seen this affidavit that I have just received in my chambers in the last five minutes. There is an application now for an adjournment. Are you aware of that?
MR MacLIVER: I am aware of it, your Honour. I had only a brief opportunity to look at part of the affidavit. I have not looked at all of it. But my instructions are to oppose an adjournment of this matter. The applicant has had more than sufficient time to take steps that your Honour foreshadowed should be taken on the last occasion, either to bring some further application in the Federal Court or seek to amend the original application in the Federal Court or to bring some other application for a visa.
I note in the affidavit there is reference to a migration agent, a Mr Goh, applying for a spouse visa on the applicant’s behalf. I think that appears at paragraph 5, your Honour. My instructing solicitor, Mr Corbould, has contacted the Department only 25 minutes ago and they have no record of any application for a spouse visa being lodged and, in any event, your Honour, for reasons I submitted last time, it would be highly doubtful that an application for a spouse visa while the applicant remains in Australia would be a valid visa application, in any event.
HIS HONOUR: Yes. The affidavit seems to be having it, in a sense, both ways, as I read it, Mr MacLiver. I have not had much more time than you and perhaps I have not understood it correctly, but certainly what you have just put to me seems to be said in it, but also it seems to be being said in it that he will make another application for either or both of a bridging visa and a student visa. I infer upon the basis that if he can get one of those and can convert his current unlawful presence in the country to a lawful presence, that will provide a foundation for him to make an application for a spouse visa. Now, I am not sure that I have that entirely correct, but that is what I think the affidavit says on one view of it.
MR MacLIVER: Your Honour, the applicant, of course, has had 4½ weeks since last ‑ ‑ ‑
HIS HONOUR: Well, everything you say is absolutely right. I can understand a very great sense of frustration on the part of your side of the Bar table, but what I am to do? I mean, Mr de Alwis says that he is ill. He is under enormous pressure. He is under investigation by the Law Society upon the basis that he is not handling this matter competently, does not have the capacity to handle it competently. That for that reason his client is being prejudiced. I am very, very sympathetic with your side of the Bar table, but I just do not know what I am going to do about this, Mr MacLiver.
Everything you say is right. There has been no compliance with the orders I made. To have received this material at the eleventh hour is really quite unsatisfactory. But it must be as apparent to you as it is to me that the matter is not being handled with the appropriate degree of – I will put it this way, the appropriate degree of attention that it probably warrants.
MR MacLIVER: Yes. Your Honour, the only other thing I could say to your Honour is this, that, one, section 48 and regulation 2.12 do not permit an application for a student visa while the applicant remains in Australia, in any event.
HIS HONOUR: So is that the position, he cannot get any sort of a visa at all ‑ ‑ ‑
MR MacLIVER: Well, section 48, which is applicable to the applicant, your Honour, because he is a non‑citizen ‑ ‑ ‑
HIS HONOUR: And “does not hold a substantive visa”, yes.
MR MacLIVER: Yes, and subparagraph (b)(i) applies to him in that “after last entering Australia” he “was refused a visa”, that is, he was refused his second application for a student visa.
HIS HONOUR: That was not a refusal of a bridging visa, Mr MacLiver.
MR MacLIVER: No, that is right. The applicant has, as you know, originally came here on a student visa, which was for a period of two years I believe. He ‑ ‑ ‑
HIS HONOUR: And it expired.
MR MacLIVER: It expired. Before the expiry he lodged a further application for a student visa and the consequence of that was that he was granted some automatic bridging visa, the period of which was for until determination or until further application for review. The application for review not having been made in time, the bridging visa simply expired and from 2 April, I think, 1998 the applicant has been an unlawful non‑citizen and he is a person who comes within the terms of section 48 and, therefore, under regulation 2.12 he can only apply while he remains in Australia for the specified categories of visa set out within that regulation.
HIS HONOUR: Well, what regulation was that again, I am sorry, Mr MacLiver?
MR MacLIVER: Regulation 2.12, your Honour, and if your Honour has the book of statutory material ‑ ‑ ‑
HIS HONOUR: Yes, thank you.
MR MacLIVER: ‑ ‑ ‑ it is at page 21. The numbers appear in the top right‑hand corner, your Honour.
HIS HONOUR: I am sorry, 2.12 ‑ ‑ ‑
MR MacLIVER: At page 21. The number in the top right‑hand corner.
HIS HONOUR: I have that.
MR MacLIVER: It is regulation 2.12, which for the purpose of section 48 prescribes certain categories of visa which an applicant who does come within section 48 may still apply for while remaining in Australia, and my point being, firstly, that a student visa is not amongst those categories of visa. So that deals with a potential application for a student visa. The applicant simply cannot validly make an application for a student visa while he remains in Australia.
There is, of course, set out in the regulations the five categories – in regulation 2.12 that is – of bridging visa which are to be found in the regulations. So under regulation 2.12 the applicant could apply for a bridging visa while he remains in Australia, however, an applicant who is in detention must apply for a visa within a period of two working days or, if an extension is sought, within a further five working days. Yes, that is section 195 of the Act, your Honour, and that should also be in the book of statutes.
HIS HONOUR: I have that, yes.
MR MacLIVER: Yes, page 15. It provides that:
A detainee may apply for a visa:
(a) within 2 working days . . . or
(b) if he or she informs an officer in writing within those 2 working days of his or her intention to so apply – within the next 5 working days –
and section 195(2) says that:
A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa ‑ ‑ ‑
HIS HONOUR: Well, this is not a protection visa, is it?
MR MacLIVER: No.
HIS HONOUR: What about a bridging visa though? Why can he not apply for a bridging visa?
MR MacLIVER: I would concede, your Honour, that it is technically possible for the applicant still to apply for a bridging visa, but for a bridging visa for what purpose? Clearly if the bridging visa was sought for the purpose of lodging a further student visa or some spouse visa application, on the basis that they could not be validly applied for while the applicant is in Australia, it would be unlikely that such a bridging visa would be granted.
HIS HONOUR: Where is the provision about a spouse visa, Mr MacLiver? Where do I find that?
MR MacLIVER: There are four categories of spouse visa, your Honour, and we have included them in this booklet of statutory materials. They are items 20, 21, 22 and 23 in the statutory materials, starting at page 53, your Honour.
HIS HONOUR: There has been no sponsoring by the applicant’s spouse, is that right?
MR MacLIVER: Well, your Honour, as I understand it ‑ ‑ ‑
HIS HONOUR: They are separated, I know.
MR MacLIVER: Yes. Up until the present time there has never been an application for a spouse visa. One might have thought that that was the type of visa that should have been applied for several years ago upon the applicant’s marriage, but it would appear that no spouse visa was previously applied for and despite the claim in paragraph 5 of Mr de Alwis’ latest affidavit, my instructions are that up until the present time no application for a spouse visa has been received, but, your Honour, under section 48 and regulation 2.12 the applicant, we would submit, cannot make a valid application for any category of spouse visa while he remains in Australia.
Your Honour, this is a position that is not new. It has occurred often in the past, that a national of another country, if he wishes to marry an Australian citizen, has to leave the country and make the application out of the country, and that is the position which this applicant faces if he wishes to make an application for one of the four categories of spouse visa. Because of the effect of section 48 and regulation 2.12, he cannot make that application while he remains in Australia.
I concede that it would appear that he can still make an application for a bridging visa if he meets the criteria for one but, again, I say, for what purpose? Your Honour, I do not think I can assist your Honour any further than that.
HIS HONOUR: Just before you sit down, just help me a little bit with the spouse visa. What is the operative provision under which an application for a spouse visa – or what precludes an application for – is there anything to preclude an application for a spouse visa by a person holding a bridging visa?
MR MacLIVER: I do not think there is, your Honour.
HIS HONOUR: Because if a person is holding a bridging visa, I assume he is lawfully in the country then.
MR MacLIVER: Well, that is right, even though it is only a bridging visa. The effect of holding a bridging visa is that while that visa subsists the person is not an unlawful non‑citizen. So for that reason the applicant previously, although his student visa had expired, was not an unlawful non‑citizen because he held a bridging visa pending the determination of his previous student visa application.
HIS HONOUR: Well, you accept that he can make an application for a bridging visa.
MR MacLIVER: Yes. Whether or not he meets the criteria for any them, I obviously could not say, but he can make the application for one. If he was to be granted one, then, yes, he would cease to be an unlawful non‑citizen.
HIS HONOUR: And then, assuming he can satisfy the other criteria, that is, the criteria of other than being a lawful non‑citizen in the country, he could apply for and theoretically might obtain a spouse visa, is that right?
MR MacLIVER: Not while he remains in Australia, your Honour.
HIS HONOUR: Well, that is what I want you to demonstrate for me.
MR MacLIVER: Well, even if he was to be granted some kind of bridging visa which he can apply for because the five classes of ‑ ‑ ‑
HIS HONOUR: Well, let us assume for present purposes that he gets a bridging visa, and I understand what you say about that, but assume that he has a bridging visa and is therefore a lawful non‑citizen in the country, what precludes him from then applying for a spouse visa, which section or regulation?
MR MacLIVER: Well, in my respectful submission, your Honour, he would still be caught by section 48 and regulation 2.12, because 48(1) refers to a non‑citizen, it does not refer to an unlawful non‑citizen.
HIS HONOUR: But it says – he is not within (1)(b).
MR MacLIVER: Well, he is.
HIS HONOUR: Well, he has been “refused a visa, other than a refusal of a bridging visa”.
MR MacLIVER: Yes, for which he applied. So he applied for a further student visa and that was refused.
HIS HONOUR: Yes.
MR MacLIVER: So he, therefore, comes within the provisions of section 48 and even if he applied for and was to be granted a bridging visa, he would still be precluded while he remains in Australia from applying for any category of spouse visa.
HIS HONOUR: Well, is that right?
A non‑citizen in the migration zone who:
(a) does not hold a hold a substantive visa; and ‑ ‑ ‑
MR MacLIVER: And then the concluding word, your Honour, “may”.
HIS HONOUR: Yes, but ‑ ‑ ‑
MR MacLIVER: The concluding words are the words that apply to him:
may, subject to the regulations, apply for a visa of a class prescribed –
which is the class prescribed in regulation 2.12 –
but not for a visa of any other class.
HIS HONOUR: But say he had made an application for another bridging visa at any moment up until now and that had been refused, he would be outside 48(1)(b) then, would he not?
MR MacLIVER: We would submit not, your Honour.
HIS HONOUR: Well, would he not then be a non‑citizen not holding a substantive visa but had been refused a bridging visa?
MR MacLIVER: Well, yes, on your Honour’s postulation, he would have been refused a bridging visa, but that would not detract from the undoubted fact that he was refused a visa that was not a bridging visa, a previous student visa that he applied for, and therefore would still, we would submit, be a person ‑ ‑ ‑
HIS HONOUR: Well, there might be a problem about (1)(b)(i), might there not? You might have a person who apparently meets both of the conditions, a person who has been refused a visa but has also been refused a bridging visa. Do you see what I am putting?
MR MacLIVER: I see the argument, your Honour, however, we would submit that that would only apply if the only visa that he had applied for and been refused was a bridging visa. Where there is some other category of visa which has been applied for and refused, then whether or not there has been a bridging visa applied for and ‑ ‑ ‑
HIS HONOUR: Yes, your point being that if he had been refused a bridging visa 10 times even, that would not avail him if, in fact, he had been refused any other form of visa at any time. That is your argument.
MR MacLIVER: Well, at any time, yes, after last entering Australia.
HIS HONOUR: Yes. So that in order to fall within 48(1)(b)(i), even if there has been a refusal of a bridging visa, if there has been a refusal of any other visa, he will fall within it.
MR MacLIVER: He will fall within it, yes, your Honour, that would be the respondent’s position.
HIS HONOUR: Well, I must say that looks correct. All right. I will hear what Mr de Alwis has to say.
MR MacLIVER: Thank you, your Honour.
HIS HONOUR: Mr de Alwis.
MR DE ALWIS: Yes, your Honour. As your Honour mentioned at the very outset, in fact, I think I must seek legal advice for myself because of the serious allegations and serious nature of applications that have been made and ‑ ‑ ‑
HIS HONOUR: Well, let us assume that is all correct, Mr de Alwis, and I understand what you are saying, but realistically assume you do not continue with the matter, who else is going to act for Mr Dhan Gurung and how are they going to meet the arguments which have just been put by Mr MacLiver?
MR DE ALWIS: Yes, your Honour. As I have pointed out earlier and now I do it again, he came as a student, his ‑ ‑ ‑
HIS HONOUR: I think I know the facts. We all know the facts, Mr de Alwis.
MR DE ALWIS: Yes, your Honour, and if he gets a favourable order made by the Minister, then he becomes a lawful non‑citizen, your Honour, then in that status he would be entitled to make an application for a spouse visa and, in fact, the other provisions that prevent him from applying for a spouse visa must be, in my humble submission, read together with the international obligations of Australia as well as the family law of Australia and the family law is very clear that a spouse should not be separated from another spouse easily and they must be given the best chance of reconciliation and it is not only that there is a little child involved and….. Case is, in fact, on all fours in this particular matter and as I have pointed out, your Honour, in my affidavit, which I had to rush and prepare. At page 2 I have shown the Rights of the Child Convention would be applicable and I would also be submitting to your Honour’s Court during the main hearing that Article 5 of the Universal Declaration of Human Rights would be violated because it would be very cruel to separate this father from the child and it has not been argued before your Honour’s Court at all up until now. Article 5 of the Universal Declaration states:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
I submit to your Honour’s Court very respectfully and very humbly that that Article 5 will be grossly violated if he is not allowed to make an application and if he is not allowed to remain in this country and, again, I go to the International Covenant on Economic and Cultural Rights which says, your Honour – it is called International Covenant on Economic, Social and Cultural Rights and Article 10 states:
The State Parties to the present Covenant recognize that:
1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.
2. Special protection should be accorded to mothers during a reasonable period before and after –
that is the mother’s aspect, and:
3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation.
Then the rest is about employment. The spirit of that, in fact, is that the Commonwealth has a duty to protect the family from breaking down. In fact, at the moment the spouses are separated but nobody has said that the marriage has been broken down irretrievably and because of that and because they have not been divorced I submit, your Honour, that he must be allowed to stay so that all the provisions under the Family Law Act can also be taken into account and allow for reconcile if that is possible. Then we go to the International Covenant of Civil and Political Rights which again talks about the fact that family is the basic unit of society. It is at Article 23, your Honour, which says:
The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
And, as your Honour pointed out quite a few times now, from the very beginning when this matter was taken up before your Honour, the Minister has wide powers under the Act to make a more favourable decision, even if the IRT had refused his application, but as your Honour sees, he made the application and, in fact, he posted it according to his own letter in time and it appears that the application was late by one day according to the IRT and it is quite possible that the IRT received it in time because the Australia Post guarantees that it will be delivered the following morning and it had go only a few suburbs within the metropolitan area in NSW.
So, therefore, the fact that he was late by one day, in fact, is challengeable and arguable and I will be arguing before your Honour’s Court or the Federal Court where the main application is pending before his Honour Justice French that, in fact, he did make the application in time and that because he has not been granted a hearing still, he is entitled to be outside and he is entitled to pursue his application for review and that the Federal Court may be able to grant a declaration, in fact, that his appeal was in place that time and, in any event, the Minister can then take into consideration that he was late by only one day and grant his student’s visa. If he is a granted a student’s visa, it dates back to 1998 and then what would happen is he would be entitled to make the spouse application.
Now, as I have already advised the migration agent whom I found for this client, the spouse provisions are that a spouse has to sponsor the foreigner and when that happens, if it is a normal application, it is normally allowed, but there are certain circumstances, in fact, set out where the sponsorship may be – the sponsorship requirement may be waived. Now, that is when there is a child involved, as in this case, there is a little infant of 2½ years involved, and he has another cause for his application for a spouse visa and also to waive off the requirement that his wife must sponsor. That is due to the fact that the wife, after separation after 2½ years of marriage, abducted the child and went to Melbourne.
Now, that, I would submit to your Honour, in the main case before his Honour Justice French, would amount to – not only amount, in fact, that is one the biggest domestic violence that can be done to my client and which has happened and I would also be saying to the court, your Honour, to his Honour Justice French in the Federal Court, that the sponsorship provisions should not apply and he must be then granted a spouse visa with effect from 1998 itself. For various diverse reasons marriages break down. That is inevitable in the modern society. In fact, it is happening at an alarming rate. In Australia one in three marriages fail and it is, in fact, worsening now.
So there is a provision that he will be given only a two‑year period. That is the statutory period where he has to show that his marriage lasted for him to have the permanent residency and the permanent – to alter the temporary spouse visa to a permanent spouse visa. Now, had he done that at the time when he got married, he would have, in fact, been in that marriage for 2½ years therefore, because the marriage broke down only after 2½ years and therefore I respectfully submit to your Honour that he has, in fact, conformed to and complied with the requirement that the marriage last two years.
So because the marriage has lasted more than two years – in fact, it is still alive, as I submit to your Honour in my humble submission, and although the wife has separated. In fact, as I have mentioned in my affidavit, his sister, Mr Gurung’s sister, has instructed me that she would approach the wife to try to reconcile and try to get the wife to sponsor. So therefore there is every possibility, every chance, that they may reconcile again in the interests of the child and for the child to have the father back at home, and that kind of chance must be given the best opportunity, your Honour, according to the spirit of the family law in this country as well as all these international covenants I have mentioned.
I would certainly again say, your Honour, that it would be very cruel to separate the father from the son and the father from the mother of the child under the International Covenant Against Torture, Cruel and Inhuman Treatment. Now, each detainee is given a sheet, in fact, which sets out – applying to stay in Australia when he is in detention. I have that with me. In fact, that is the published policy of the respondent Minister, which says, “Applying to stay in Australia. You may in certain circumstances be permitted to remain in Australia if you” – item 2 in that sheet is, “are the spouse or de facto spouse of an Australian citizen or permanent resident or an eligible New Zealand citizen” So therefore I respectfully submit to your Honour that, in fact, he is a spouse, not just a de facto even. He is a spouse. He is a married spouse.
There is this provision in that again, your Honour, at – I think it is item 5, your Honour, which says that if there is a child involved, then he will again be entitled to apply. Now, that is the published policy of the Minister and there is another document that is, in fact, given to all the detainees and I have a copy of that document, which again sets out in Mr Corbould’s affidavit, where it is quite, in fact, clear that if he is married and if there is a child involved and there is a spouse involved, he can apply for such a visa.
I submit further, your Honour, that if Australia would be violating or breaching any covenant of an international agreement which Australia is a signatory, then I respectfully submit, your Honour, that the decision‑maker must take all that into account and make a favourable decision at that time. Now, all we had to do is, your Honour, all those things can be argued before his Honour Justice French, so for the time being all I have to do is show your Honour that an injunction must be granted so that all these issues can be raised before the Federal Court and for that I need his presence in this country to take all the instructions and if he goes to Nepal it will be much more difficult.
Even now, your Honour, I find it extremely, extremely, extremely difficult to take his instructions. He is given only a mobile phone. In fact, I have been appearing unpaid up until now. He cannot even raise the money that is necessary to lodge his application but he is expecting his brother to send the necessary money. He told me, in fact, just last night that his brother has spoken to him and has promised to send the money necessary to lodge the application which is $1,640 by next Tuesday and therefore it is – in fact, it will be in the best interests of the child, in the best interests of the family, the best interests of the spouse and in the best interests of my applicant and also to conform to the ‑ ‑ ‑
HIS HONOUR: Is he supporting the child?
MR DE ALWIS: He was, in fact ‑ ‑ ‑
HIS HONOUR: He is obviously not supporting the child while he is detention.
MR DE ALWIS: Yes, that is a reason why he cannot. In fact, that is why I will say that ‑ ‑ ‑
HIS HONOUR: Did he ever support the child?
MR DE ALWIS: He did, your Honour. My instructions are that he did and even now he – in fact, he has tried to get a transfer. Very much before I came into the case he has tried to get a transfer to a detention centre in Melbourne so that he could get his wife to bring the child to the detention centre so that he could see the child. In fact, as I have mentioned in my earlier affidavit, he is very, very depressed and he misses this child because he was very attached to the child and that is why I say Australia will be violating the International Covenant Against Torture, Cruel and Inhuman Treatment if he is not allowed to do that and he has right to do that and he has every intention to support the child and it is very unlikely that he will be able to support this child from Nepal if he is sent back.
My learned friend, Mr MacLiver, was saying that he should make the application from outside. Now, if he is deported or removed, immediately the other provisions apply where he cannot come back to the country for five years, a minimum of five years. So then again we go back to the international obligations of Australia and in such a situation – and, in fact, the Minister may make a favourable decision in his favour, but for that he must be given time. He must be allowed some time to do that. He is in impecunious circumstances. He was crying all the time I called and it is extremely difficult to get instructions from him at the moment and it does not help me either because he is not allowed to use the normal land telephone in the detention centre. He has to use the mobile phone that has been given to his dormitory and there again, if it is with another detainee – in fact, one detainee told me that he will never give it to Mr Gurung and another detainee was very rude to me and he said that Dhan Gurung must be somewhere and that he cannot go after him to find where he is even.
I had enormous difficulties in taking instructions from this client and I have never experienced a situation like this ever in my 30 years of practice as a lawyer and I also must say that I asked him to find some money so that I can get another lawyer in Sydney to visit him and get instructions and pass onto me. I approached a few solicitors in Sydney who are known to me but nobody was prepared to do that unpaid. Here too I approached, in fact, a few lawyers – a barrister as well as some other lawyers – and nobody is willing to do this kind of case unpaid and they all say this is big case, they just cannot find the time, they cannot find the resources, they cannot find the money and unless he pays it is going to be very difficult.
In fact, I discussed with the sister recently and just this morning I discussed with another person and from a welfare organisation and there is a very good likelihood of his being found the necessary money by some welfare organisations, which I propose to do. In fact, I have undertaken to publish a newspaper advertisement asking well‑wishers and friends and relations as well as the people who are involved in this kind of matter to contribute to the fees that will be necessary for him to lodge his application, and for that too he must be given time, your Honour. All I am asking at this juncture is that he be given time. So that if the injunction is allowed, then he can remain in this country and then he can exercise his right, which is that he be heard by your Honour’s Court as well as the Federal Court, which he is entitled to do. Then in the meantime, if the migration agent whom I have found for him writes to the Minister and if the Minister makes a favourable decision and he is allowed a student visa, then everything can be put into place after that.
So therefore all I am asking is that he be given time, that an injunction be issued. This is not the right time to argue all those matters. All I have to show your Honour is that on the balance of convenience there is an arguable case and that he should be given time to do that. All I am asking is for the injunction, your Honour. This is not the main hearing and at the main hearing I will, in fact, show and persuade the Court to make an order in his favour. I must also submit to your Honour, with great respect, that the law here is – law in Australia is that he be given the best opportunity to present his case before the Court, so therefore your Honour’s Court would permit him to remain in Australia so that he can give me instructions and so that the audi alteram partem rule of natural justice will not be violated, will not be breached and he will be given a fair hearing, which is also found in the Universal Declaration of Human Rights. That is article – I refer to Article 8, your Honour:
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
And I would, in fact, be submitting to the Federal Court at the correct time that there is a constitutional matter involved and I would give section 78 of the Judiciary Act notice to all the Attorneys‑General so that I would be able to argue that provisions of Part 8 and the recent legislation, which is Migration Legislation Amendment (Judicial Review) Act, are ultra vires the Constitution and should be, in fact, declared null and void those particular offensive provisions. For that I must be given an opportunity. I must be given an opportunity to go before the Federal Court and argue the matter. In fact, I am confident that I will be able to persuade the court that that should be allowed because there is a question of separation of powers involved now because earlier the High Court had a right to hear this as a writ of certiorari, but even that right has been taken away now by the ‑ ‑ ‑
HIS HONOUR: No, no, Mr de Alwis. There has been ample time in which to make an application to this Court for prerogative relief and no application has even been made as of today.
MR DE ALWIS: Your Honour, in fact, want I am trying ‑ ‑ ‑
HIS HONOUR: No, no application has been made for any prerogative relief. The application that was made to the Federal Court was for an injunction.
MR DE ALWIS: Correct, your Honour, that is because of my main application where I will be arguing that he was not late by one day ‑ ‑ ‑
HIS HONOUR: I know the argument. I am just correcting something you said. Now, is there any further submission that you wish to make?
MR DE ALWIS: Yes. So all I am saying is that he must be given an opportunity, your Honour ‑ ‑ ‑
HIS HONOUR: Well, you have said that.
MR DE ALWIS: ‑ ‑ ‑ and I will also be arguing that – I will be arguing that the extension of time that he requires, that is, from the time he lodged the application to the IRT up until now, may be allowed by the Federal Court and I will be arguing before the Federal Court the fact that some provisions of the Migration Legislation Amendment (Judicial Review) Act of 2001 – I am sorry – may be ultra vires the Constitution in that there is a breach of the doctrine of separation of powers because there are certain instances in that amending Act where the right that the court had has been taken away and all the powers have been given to the Minister, for instance, under section 501, and therefore I would be submitting to the Federal Court that those provisions are ultra vires the Constitution.
I would also be submitting that both those provisions in the old Act as well as in the amending Act which take away the powers that the court has to grant an extension of time has been taken away only and only in the Migration Act and in all the other Acts in the Commonwealth there are provisions which permit the court to grant an extension of time. So therefore I would be submitting, your Honour, that it is a discriminatory law and should be held to be not having the necessary force of law under section 51 of the Constitution, which says that the Parliament shall pass legislation only for – this is what it says, your Honour, that is, section 51:
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth and with respect to –
immigration. Then I would be submitting, your Honour, that this kind of discriminatory law where only the Migration Act has been singled out to withdraw the power that the court had to grant an extension, being removed from the courts would not be for the peace because there have been breaches of the peace due to this legislation and I would also be saying that there had been a breakdown in order and then I will also be saying that a “good government of the Commonwealth” will not pass such legislation and should not be allowed to pass such legislation.
Now, at this point all I have to do is show your Honour’s Court that there is an arguable case. Let me argue that point before the Federal Court. I would be saying that the court’s powers that were there all this time should supersede any power that has been taken away by this legislation which I will be submitting are offensive. I would say that the fact that the migration legislation comes after section 51(xxvi), which says:
The people of any race for whom it is deemed necessary to make special laws ‑
and then the other part was deleted shows the intention of the legislature that there should not be any discrimination and therefore there is an arguable case to go before the Federal Court. I would also be saying that because immigration power comes after the foreign affairs power, that is – yes, 51(xxvii), your Honour, is immigration power and thereafter you get the external affairs power and therefore I would be attempting to persuade the court to hold that when the draftsman drafted the foreign affairs power he was aware that there was an immigration power there and the draftsman did not think it necessary to make it an express legislation which should say that immigration power may be subject to the international obligations of the country and because it is not expressly stated there in the immigration power and when the draftsman drafted 51(xxix) external affairs power, according to the statutory interpretations, the law of interpretation of statutes, the international obligations must supersede the other provisions which violate that.
That is why I say that the five international agreements I have set out in my affidavit at page 2 must be taken into account and held to be superior to the provisions which take away the right that the court has. It has not been argued before but I will be arguing that before the court. If he gets that extension, then he will be not an unlawful non‑citizen and if he becomes a lawful non‑citizen, then again he can make a substantive application. All I am saying is that that aspect, the constitutionality with the provisions are ultra vires, all that can be argued before the Federal Court, therefore must my client must be given an opportunity to do that and ‑ ‑ ‑
HIS HONOUR: You are repeating yourself. Is there anything further you want to put?
MR DE ALWIS: Yes.
HIS HONOUR: Usually applications of this kind, for example, an application for special leave you have a time limit of 20 minutes.
MR DE ALWIS: I am sorry, your Honour, I ‑ ‑ ‑
HIS HONOUR: You are aware of that. You have far exceeded that on this application. You have had an opportunity to make written submissions. Your affidavit is argumentative with respect to the law. You are repeating yourself. Is there anything you want to add ‑ ‑ ‑
MR DE ALWIS: Yes, your Honour. The other thing is ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ that you have not already told me?
MR DE ALWIS: Yes, that is what I am trying to say, your Honour. My client also must be given an opportunity to apply for legal aid from the Legal Aid Commission in NSW as well as the Family and Legal Aid Services Department in Canberra which gives a grant of aid for special cases. I will be submitting to that Department that this is a special case where important issues of the law are involved and international obligations of the country are involved and that therefore they must grant an aid to my client and therefore again, your Honour, an injunction may be granted for
that purpose as well, and again we come to the financial situation of this client and it is because he is in ‑ ‑ ‑
HIS HONOUR: You have told me the financial situation. Please do not repeat yourself. Is there anything new you want to put?
MR DE ALWIS: I believe those are ‑ ‑ ‑
HIS HONOUR: You are just repeating yourself, Mr de Alwis.
MR DE ALWIS: ‑ ‑ ‑ the main arguments are those, your Honour. All I am saying is that he must be given an opportunity to take his case before the Federal Court and for that purpose an injunction must be allowed so that he can remain in this country and give me instructions. Thank you very much, your Honour.
HIS HONOUR: Thank you, Mr de Alwis. Mr MacLiver, is there any material before the Court to explain why – or, indeed, was there any material before the Federal Court to explain what the applicant has been doing since 2 April 1998 and his detention? I mention 2 April 1998 because that is when his bridging visa expired.
MR MacLIVER: Yes. Your Honour, the only material is that before your Honour in Mr Corbould’s first affidavit and it would appear that after the Tribunal, that is, the Immigration Review Tribunal, advised the applicant that it did not have jurisdiction – we can pick up that – that letter from the IRT, your Honour, appears at folio 46 – that is the number in the bottom right‑hand corner – of Mr Corbould’s affidavit, if your Honour has that.
HIS HONOUR: Yes.
MR MacLIVER: So that was the advice by the IRT that they did not have jurisdiction because the application to it was not lodged within the requisite period of time specified by the Act. The applicant then wrote back to the Tribunal and that appears at folio 48 in which he said that his application to the Tribunal had been posted on a certain date and that Australia Post had guaranteed “next day delivery”. Then the Tribunal responded to that letter at folio 50 and reiterated that the application be received on a certain date and was out of time and the Tribunal could not do anything further.
Your Honour, it would appear that there was no further communication by the applicant to the Departments. The applicant subsequently got married and had a child, but never applied for any spouse visa as a result of that and eventually, as Mr Corbould’s affidavit says at paragraph 11, he “was apprehended” on 23 February “and detained as a suspected unlawful non-citizen”.
HIS HONOUR: So, having been advised that his application for review could not be processed and had to be rejected, he did nothing?
MR MacLIVER: It would appear, your Honour, that he did nothing either to seek some other visa after he was married or to seek to challenge the Tribunal’s decision. Your Honour, one of the points that I would wish to make is that there is still no challenge at the present time to the Tribunal’s decision that it did not have jurisdiction. There has been no fresh application ‑ ‑ ‑
HIS HONOUR: I know what you are you saying, I suppose that ‑ ‑ ‑
MR MacLIVER: ‑ ‑ ‑ and no application to amend.
HIS HONOUR: I suppose, however, it might be possible to read the application that he has made to this Court or to treat it as an application under 75(v) of the Constitution, being an application for an injunction against an officer of the Commonwealth? I know it is not really expressed that way but this Court would have original jurisdiction, arguably, under 75(v) in respect of any legal defect in what was done by the Immigration Review Tribunal.
MR MacLIVER: Yes, I certainly would not quarrel with that, your Honour, that, yes, an application could be made to this Court as, indeed, an application could be made to the Federal Court or the present application to the Federal Court which is the foundation for the proceedings presently in this Court which presently seeks to ‑ the application is in terms of “An application by” the applicant “for review of the respondent’s decision to cancel his permanent resident spouse visa and an urgent injunction.” That application, of course, could be sought to be amended, if it was thought appropriate, to review or seek relief under section 39B in relation to the Administrative Review Tribunal’s decision that it did not have jurisdiction.
HIS HONOUR: Is there anything in – I am not even sure now whether it is the Post and Telegraph Act or the Acts Interpretation Act – about the date of deemed service? I cannot recall it myself, Mr MacLiver, but what I am thinking of ‑ is there anything in the Migration Act about service of documents? Why I am asking you that is to see whether there is any deeming provision or provision with respect to the date of reception of documents. We recently considered a case in which an application for an adjournment was made and it did not get to the actual Tribunal – you might know the case, I just cannot quite remember the name of it, it is very recent.
MR MacLIVER: Bhardwaj, I think, your Honour, is that ‑ ‑ ‑?
HIS HONOUR: I think it might have been Bhardwaj, yes.
MR MacLIVER: Yes, that is right. Well, I think that was a case, your Honour, where the Tribunal member was not aware that an application for an adjournment had been made, but the administrative procedure of the Tribunal would affect it because it had received such an application. When the Tribunal became aware of it, it then conducted a further hearing and the Minister objected to that further hearing and said that the Tribunal was functus officio and the High Court held otherwise, of course.
HIS HONOUR: Yes.
MR MacLIVER: Yes. Your Honour, there is a provision in the Migration Regulations themselves and, indeed, regulation 5.03, that was referred to by the Tribunal in its letter to the applicant at folio 50 of Mr Corbould’s first affidavit, regulation 5.03.
HIS HONOUR: I do not know whether I have that, Mr MacLiver, unfortunately.
MR MacLIVER: It is not in the bundle of statutes, your Honour, no.
HIS HONOUR: What does it say?
MR MacLIVER: It presently says in subsection (1) ‑ ‑ ‑
HIS HONOUR: Are you reading from the ‑ I have Reprint No 3 of the Regulations. What have you got?
MR MacLIVER: I have Reprint 2, your Honour, but ‑ ‑ ‑
HIS HONOUR: Reprint 2. Just read it to me then, Mr MacLiver, please.
MR MacLIVER: Subsection (1A) says:
This regulation applies to a document sent by the Minister or a Tribunal to a person in that person’s capacity as
(a) an applicant, of any kind, under the Act or these regulations –
and then subsection (1), your Honour, says, or at least in my copy:
For the purposes of the Act and these Regulations, and subject to the Act and specific provisions elsewhere in these Regulations, a document is taken to be received by the person to whom it was sent at the time that the document is taken to be received at the address to which the document is sent, which is either:
(a) if the document is sent from a place in Australia to an address in Australia ‑ 7 days after the date of the document ‑
Now, your Honour, I think in the more recent reprint, that provision has been amended slightly.
HIS HONOUR: In any event, that means if you want a review you have really to send your document at least seven days before the date of expiration if you are going to use the post. Is that the effect of it? Because it is taken to be received seven days after the date, assuming ‑ is it the date of dispatch or what does it actually say?
MR MacLIVER: The date of the document, your Honour, yes.
HIS HONOUR: What is the date of the document? You could date the document on that basis two weeks before you sent it and give yourself an extra two weeks. It is an unusual way to put it. I would have thought the date of dispatch or date of posting.
MR MacLIVER: Yes, one might have thought so, your Honour, and indeed, your Honour, the regulation as it was at the time of its consideration by the Immigration Review Tribunal, as I say, was in this form. Paragraph (1A) of the regulation talked about the document being sent seven days after the date of the document. That regulation was found to be invalid by the Federal Court, your Honour, for the very reason which I think your Honour has just postulated that if the document was not, in fact, posted until seven days after its date, then it would be deemed to be received on the same date that it was put in the post and, of course, the applicant would not have received it. So the Federal Court – and I cannot recall the name of the decision – ruled that that regulation in that form was invalid and the regulation was amended. I think it now provides for four days, your Honour.
HIS HONOUR: In any event, that was the form that it was in.
MR MacLIVER: Yes.
HIS HONOUR: The state of the law as found by the Federal Court was that this was an invalid regulation.
MR MacLIVER: Yes.
HIS HONOUR: Was that finding made after 26 May 1998?
MR MacLIVER: It was, your Honour. I think that was a decision of the Federal Court in ‑ ‑ ‑
HIS HONOUR: Well, why does not that give the applicant an argument?
MR MacLIVER: In fact, your Honour, the decision of the Federal Court – my instructing solicitor, Mr Corbould, has just handed me a copy of the decision. It is Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377 and it was a decision of the Full Court of the Federal Court delivered on 4 April 2000.
HIS HONOUR: Let us just pause there. That means the Immigration Review Tribunal in rejecting the applicant’s application for a review was applying an invalid regulation.
MR MacLIVER: Yes, your Honour, I would agree with that. Unfortunately for the applicant it would not assist him. The regulation being invalid, then the Acts Interpretation Act to which your Honour referred earlier would apply. It provides that documents sent by post – there is a presumption that it is received in the ordinary course of post and that would be a period of less than the seven days provided by the invalid regulation. So the effect of that, your Honour, would be that the applicant would be even out of time by, in fact, a greater period of perhaps two or three or four days.
HIS HONOUR: No, not at all. It is deemed to be received in the ordinary course. He says he sent it the day before the day of expiration by express post. He says the ordinary course of express post is a guaranteed delivery the next day. So therefore in the ordinary course of express post it was received or it should be deemed to be received under the Acts Interpretation Act on the last day. Is that not right? Have I got that wrong?
MR MacLIVER: The time period, your Honour, runs from the date of notification.
HIS HONOUR: Well, let us go back to those documents you referred me to, Mr MacLiver. I think it starts at, is it, 50 in Mr Corbould’s affidavit – 46, I think, is it not? Is that right?
MR MacLIVER: Well, the letter of notification, your Honour, is at folio 22, commencing at 22.
HIS HONOUR: Folio 22. Yes. Well, he is informed by certified post – what is the date of that letter?
MR MacLIVER: At folio 23, your Honour, the date is 26 February.
HIS HONOUR: All right. So that he is informed on 26 February and, what, he has 28 days from then, has he – 28 days from the receipt of that, is that right?
MR MacLIVER: No, your Honour, 21 days. It is section – my instructing solicitor is just finding the provisions of the Act but it is 21 days, your Honour, and ‑ ‑ ‑
HIS HONOUR: Well, let us assume that is right. So he has ‑ ‑ ‑
MR MacLIVER: Regulation 4.10 my instructing solicitor reliably informs me – 21 days, your Honour.
HIS HONOUR: Well, what does it actually say, Mr MacLiver, the regulation? Unfortunately I do not have the relevant reprint.
MR MacLIVER: Regulation 4.10 says this, your Honour, in paragraph (1):
For paragraph 347(1)(b) of the Act, the period in which an application for review of an MRT‑reviewable decision must be given to the Tribunal:
(a) if the MRT‑reviewable decision is mentioned in subsection 338(2) or (7A) of the Act – starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received; or
(b) if the MRT‑reviewable decision is mentioned in subsection 338(3) or (3A) of the Act – starts when the applicant receives notice of the decision and ends at the end of –
two –
working days after the day on which the notice is received ‑ ‑ ‑
HIS HONOUR: But what is the relevant date, when he receives notice or when he receives the decision?
MR MacLIVER: Receives notice of the decision, your Honour.
HIS HONOUR: All right. So time begins to run when he receives notice of the decision by the letter of 26 February 1998. Now, that is sent by certified mail.
MR MacLIVER: That is right, your Honour.
HIS HONOUR: And there is no evidence about the ordinary course of certified mail, is there?
MR MacLIVER: There is presently no evidence, your Honour, no, but the Tribunal your Honour will recall, because it was working on the basis of regulation 5.03, took the 21‑day period as running from seven days after 26 February, whereas in the ordinary course of mail ‑ ‑ ‑
HIS HONOUR: It might have been less.
MR MacLIVER: ‑ ‑ ‑ it might well have been less, which means that the applicant would have been further out of time to lodge his application with the Immigration Review Tribunal.
HIS HONOUR: All right. Well, let us take the seven days – I know what you say about it, but if seven days is right – 1998, was that a leap year?
MR MacLIVER: No, your Honour.
HIS HONOUR: No, it was not. So he has seven clear days, let us assume for present purposes.
MR MacLIVER: Yes, it would be seven clear days.
HIS HONOUR: So he receives it by the 5th, is that right?
MR MacLIVER: Yes, he is deemed to have received it on the 5th.
HIS HONOUR: On 5 March 1998, and then he has 21 days from then, Mr MacLiver.
MR MacLIVER: From then, 21 clear days, so that would make it, as the Tribunal said, the last day for lodging an application to the IRT would have been 26 March.
HIS HONOUR: 26 March, and then if we go to – let us see when it was received. It was received on 27 March. That appears from folio 46 of Mr Corbould’s ‑ ‑ ‑
MR MacLIVER: Folio 46, your Honour, but if you turn back two pages to folio 44, there is the actual application and the IRT – Immigration Review Tribunal’s New South Wales Registry date stamp appears.
HIS HONOUR: And that is the 27th, is it?
MR MacLIVER: And that is the 27th, your Honour, yes.
HIS HONOUR: Well, why can he not argue that it was received under the Acts Interpretation Act in the ordinary course by the date nominated by the Tribunal? I know what you say about the earlier seven days, I understand that, but that was the date they nominated. He has to have it in ‑ ‑ ‑
MR MacLIVER: You have to have it lodged, your Honour ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ 21 days from the date of receipt, is that not right?
MR MacLIVER: Yes, you have to lodge your application with the Tribunal. It has to be lodged. There is authorities of the Federal Court to say that “lodged” means actually received, even if that was by fax, that it has to be actually received. There is a number of authorities of the Federal Court in relation to the Refugee Review Tribunal, with the same principle that applied to the Immigration Review Tribunal.
The presumption under the Acts Interpretation Act of something being received in the ordinary course of post, your Honour, would not assist because the presumption is clearly rebutted by the fact that the Tribunal itself says that it received the document on the 27th, not on the 26th.
HIS HONOUR: Yes, but it is not a question of construing the Federal Court decision, it is a question of construing the regulation or the section of the Act. Is it the regulation or the Act that says – what is the section of the Act that applied at the time which entitled him to seek a review? What section is that, Mr MacLiver?
MR MacLIVER: I believe it was and it still is, your Honour, section 347 of the Act.
HIS HONOUR: Right, section 347 of the Act.
MR MacLIVER: Your Honour, of course, the references are now to the Migration Review Tribunal. There was a change of name.
HIS HONOUR: All right. So:
must:
(a) be made in the approved form; and
(i) if the MRT-reviewable decision is covered by –
is this the relevant section, 338? I am afraid I am looking at Reprint 8 now but, in any event, it is:
28 days after the notification of the decision –
right?
MR MacLIVER: Being a period “ending not later than”, yes.
HIS HONOUR: That is not what I have here. Unfortunately it has been amended. It would have helped if I had ‑ ‑ ‑
MR MacLIVER: Well, sorry, your Honour, I have Reprint 8.
HIS HONOUR: Just slowly read to me please the relevant subsection which prescribes the period, Mr MacLiver.
MR MacLIVER: Yes, your Honour. Section 347(1) says that:
An application for review of an MRT-reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the prescribed period, being a period ending not later than:
(i) if the MRT-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) – 28 days after the notification of the decision ‑ ‑ ‑
HIS HONOUR: So the key words are “being a period ending not later than . . . 28 days after the notification of the decision”?
MR MacLIVER: Yes, and then “the prescribed period” ‑ ‑ ‑
HIS HONOUR: Here – sorry?
MR MacLIVER: ‑ ‑ ‑ “the prescribed period”, your Honour, though, is 21 days. So the Act says that the prescribed period must not be later than 21 days, but that regulation 4.10 has prescribed 21 days.
HIS HONOUR: Right, so that becomes 21 days after the notification of the decision, is that right?
MR MacLIVER: Yes, your Honour, that is right.
HIS HONOUR: So the Tribunal regarded itself, rightly or wrongly, as having notified the decision on 5 March 1998 which is seven days after the ‑ ‑ ‑
MR MacLIVER: After the date of the Department’s letter, your Honour, yes.
HIS HONOUR: So he has 21 days in which to make and give to the Tribunal his application, is that right? The word is “give”, is that right?
MR MacLIVER: Give within 21 days of the notification of the decision.
HIS HONOUR: So he here had to give the application to the Tribunal and to give the application to the Tribunal by 26 March?
MR MacLIVER: Yes, your Honour, assuming that the regulations ‑ ‑ ‑
HIS HONOUR: And the Acts Interpretation Act says that if you send something by post, then it is deemed to be received when it would be received in the ordinary course of post, is that right?
MR MacLIVER: It says there is a presumption, your Honour.
HIS HONOUR: Right, a presumption.
MR MacLIVER: I do not think it uses the word “deemed”.
HIS HONOUR: Presumption.
MR MacLIVER: Yes. So that if in the ordinary course of post, a letter from one metropolitan address to another posted by 6 o’clock was delivered in the next day, then the Acts Interpretation Act would presume that the letter was delivered the next day, but that is only a presumption and the clear evidence here by the Tribunal is that it received the letter, unfortunately for the applicant, on 27 March.
HIS HONOUR: What is the section of the Acts Interpretation Act?
MR MacLIVER: My instructing solicitor says he thinks it is section 29, your Honour, and perhaps 28A as well. But, yes, I think it is 29. Section 28A says that if the document may be sent or delivered it may be done so:
by sending it by pre-paid post –
Then section 29 says:
the service shall be deemed to be effected ‑ ‑ ‑
HIS HONOUR: It is “deemed”, it is not presumed, it is deemed.
MR MacLIVER: Yes, but the words go on:
unless the contrary is proved to have been effected at a time at which the letter would be delivered in the ordinary course of post ‑
and unless the contrary is proved. The Tribunal, your Honour, said in its letter that it received it on the 27th and the application has the Tribunal’s date stamp of the 27th.
HIS HONOUR: Just give me the reference to that Federal Court decision again, please, which held the regulation to be invalid.
MR MacLIVER: I think it was Minister for Immigration and Multicultural Affairs v Singh, your Honour – yes, there it is – [2000] FCA 377 and it was a decision handed down on 4 April 2000.
HIS HONOUR: All right. Well, is there anything further you want to put, Mr MacLiver?
MR MacLIVER: Your Honour, my learned friend raised the question of the conventions and international law. Your Honour, that might have had some relevance if there had been a decision to cancel a visa because a decision to cancel a visa is a discretionary decision and treaties may have some role to play in a discretionary decision such as a decision to cancel a visa or a discretionary decision to deport someone but where ‑ ‑ ‑
HIS HONOUR: Yes, I know what you are saying. What is the basis here for suggesting there is any legitimate expectation? I suppose that is what you are really saying, is it not?
MR MacLIVER: Well, that is right, your Honour, that the facts as we now know them are that there was an application for a student visa. A decision was made that the applicant simply did not meet the statutory criteria and there is no basis for any treaty or convention to have a part to
play in that decision, where it is not a discretionary decision, it is simply a decision as to whether or not someone meets the specified statutory criteria.
Your Honour, in relation to that decision as well, of course, the applicant was applying for a student visa for a specified period of time to attend a course at a specified institution. Even if there was something wrong with that decision, the applicant could not be granted that visa now. Time has moved on.
HIS HONOUR: Yes, all right, thank you, Mr MacLiver.
MR MacLIVER: Thank you, your Honour.
HIS HONOUR: I am going to have to reserve my decision in this matter. Mr MacLiver, it may take a little time for me to give my decision. Are you prepared to give an undertaking on behalf of the respondent pending the giving of my decision?
MR MacLIVER: I do not have any instructions, your Honour, to be able to do that.
HIS HONOUR: No. Well, I think I can understand your position. All right, thank you, Mr MacLiver. I am going to extend the interlocutory injunction that I granted before until I give my decision. I need to think about this matter. So there will be an injunction pending further order. I think that is – an injunction to restrain the respondent from taking any steps to remove or deport the applicant from the country until further order. That will be my order today.
All right, Mr de Alwis, I have to consider this matter and I do not know what I am going to do at this stage.
MR DE ALWIS: Certainly, your Honour.
HIS HONOUR: But, Mr de Alwis, all the matters to which you have referred, if they do have any validity, they are simply not being presented in a proper form. I have told you this before. I gave you ample opportunity on this occasion to put your arguments in order and to put your papers in order and, frankly, there has been very little improvement in that regard. In addition to that, I receive – an affidavit reaches my chambers – I do not know whether it reached the principal Registry but it was not long before, but it only reached my chambers half an hour or so before I went into Court and it was with the principal Registry not very long before that.
Your material discloses no information with respect to your client’s movements between the date of his becoming an unlawful citizen and the
date of his detention. There is no attempt to explain any delays in making applications. There is no properly articulated application under section 75(v) of the Constitution. What you have done is applied for special leave to appeal from a decision of the Federal Court. There is no proper basis upon which an application under 75(v) might have been made. There has been no attempt, for example, to make the Tribunal a party, which would be necessary in order to develop the point that you wanted to make with respect to the service of the application for review.
I do not know how many times I have to say this, but your material is just not in proper form, your arguments are not properly developed and appropriate applications have not been made. Now, fortuitously and simply because I need time to consider this matter in its present form there may be an opportunity for your client to make differently based applications in proper form. Now, that is all I am going to say to you and I do not want ‑ ‑ ‑
MR DE ALWIS: Yes, I would advise my ‑ ‑ ‑
HIS HONOUR: No, I do not want to hear anything from you. I am just saying that to you. But it seems to be clear, Mr de Alwis, from what I have said to you on previous occasions that you are either unwilling to do that or incapable of doing it yourself. If your client is going to best served in this matter, then, with all due respect to you, and your inability or unwillingness to do things that I have suggested you do, your client might be better off with somebody else. Now, that is all I propose to say. I do not know when I will be able to give my decision. I will give it as soon as I can, but in the meantime your client has the benefit of an extension of the injunction. I will reserve the costs of today. Thank you.
MR DE ALWIS: Thank you very much.
AT 1.40 PM THE MATTER WAS ADJOURNED
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