Gurung v MIMA

[2002] HCATrans 149

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, 26 APRIL 2002, AT 4.33 PM

Copyright in the High Court of Australia

MR V.G. DE ALWIS:   Your Honour, I appear for the applicant.  (instructed by Migrant Lawyers)

MR P.R. MacLIVER:   May it please the Court, I appear for the respondent. (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes.  Have you been acting in the matter from the inception, Mr De Alwis?

MR DE ALWIS:   I have, your Honour.

HIS HONOUR:   And before whom has it been heard so far?  By Justice French, is that right?

MR DE ALWIS:   That is correct, your Honour.

HIS HONOUR:   Has it only been to a single judge of the Federal Court?

MR DE ALWIS:   Yes.  Justice French sat as a single judge of the Federal Court in its original jurisdiction and then I took it from there to the appellate jurisdiction of the Federal Court, the single judge, his Honour Justice Carr.  Justice Carr affirmed the decision of Justice French.

HIS HONOUR:   Now, what was the application before Justice French?  What was it for?  What relief did you seek?

MR DE ALWIS:   I sought leave – my instructions at that time were that my client was married and he ‑ ‑ ‑

HIS HONOUR:   I understand that, but what was the relief you sought?  Were you seeking an injunction or prerogative relief?

MR DE ALWIS:   An urgent injunction and, of course, substantial relief later on too, but at the moment it is ‑ ‑ ‑

HIS HONOUR:   What was the substantial relief you were seeking?

MR DE ALWIS:   That the respondent be ordered to issue the spouse visa for my client and ‑ ‑ ‑

HIS HONOUR:   I am sorry, I did not hear that, Mr De Alwis.  I did not hear what you ‑ ‑ ‑

MR DE ALWIS:   The spousal visa be issued ‑ ‑ ‑

HIS HONOUR:   No. What relief were you seeking – under what Act? Were you seeking prerogative relief under the Constitution or were you seeking some kind of a review under the Migration Act?  What was the principal relief that you were seeking?

MR DE ALWIS:   Yes, I am sorry, I should have said that at the beginning.  At the time I went to Justice French’s court, I was under the impression that his spouse visa has been cancelled because he has…..upon the wife and that is the instruction I had from my client, who had lost all his files ‑ ‑ ‑

HIS HONOUR:   No.  Mr De Alwis, just tell me what was the principal relief that you were seeking.  Were you seeking an injunction?

MR DE ALWIS:   Yes, at the time – sorry, at that time ‑ ‑ ‑

HIS HONOUR:   No, listen to me, please.

MR DE ALWIS:   ‑ ‑ ‑ I want to appeal from the decision of the Minister to cancel his spousal visa.

HIS HONOUR:   All right.  So the Minister had cancelled his visa.  Now, what visa did he have?  What sort of visa did he have?

MR DE ALWIS:   No.  In fact, later on – on the date  ‑ ‑ ‑

HIS HONOUR:   Mr De Alwis, listen to me.  Mr De Alwis, listen to me, please.  What sort of visa was it that the Minister cancelled?  Was it a protection visa, or what was it?

MR DE ALWIS:   No, he cannot….that.  The Minister has not cancelled a visa, your Honour.

HIS HONOUR:   All right.

MR DE ALWIS:   What happened was my client ‑ ‑ ‑

HIS HONOUR:   No, Mr De Alwis, will you listen to me, please.  Do not tell me what happened.  Tell me what was the principal relief that you were seeking.  If you cannot tell me, I will ask Mr MacLiver what it was.

MR DE ALWIS:   Yes, your Honour.

HIS HONOUR:   What was the principal relief that you were seeking?

MR DE ALWIS:   My client needs an extension of time to apply and ‑ ‑ ‑

HIS HONOUR:   Yes.  To apply for what?  To apply for what?

MR DE ALWIS:   I am sorry.

HIS HONOUR:   Your client needs an extension of time to apply for what?

MR DE ALWIS:   To apply for a substantial visa.

HIS HONOUR:   Mr De Alwis, just sit down for a moment, please.  Mr MacLiver, would you come to the microphone, please.  Mr MacLiver, did the applicant have a visa at some stage?

MR MacLIVER:   He did, your Honour.  He originally arrived in this country on a student visa and at some ‑ ‑ ‑

HIS HONOUR:   Yes.  And that lasts so long as a person is a student in general terms, is that right?

MR MacLIVER:   Yes.  That was for a fixed period of time and prior to its expiry, on my instructions, the applicant sought a further student visa.  A decision was made not to grant a further student visa.

HIS HONOUR:   Is that a decision by the Minister or by the delegate of the Minister?

MR MacLIVER:   That was a decision by the delegate, your Honour.

HIS HONOUR:   Yes, right.

MR MacLIVER:   And from that decision the applicant applied to the Immigration Review Tribunal to review that decision.

HIS HONOUR:   Yes.  Do you know what section that is under, Mr MacLiver, of the Migration Act?

MR MacLIVER:   Yes, I think it is under Part 5, your Honour.

HIS HONOUR:   Yes.

MR MacLIVER:   I will just double check that.  Yes, Part 5.  It is now the Migration Review Tribunal, although formerly it was the Immigration Review Tribunal.

HIS HONOUR:   Yes.  Would that be section 338(3)?  It may not be.  Let us see.

MR MacLIVER:   Subsection (2) presently provides for, or states what is a “MRT‑reviewable decision” and then section 347 provides that:

An application for review of an MRT‑reviewable decision must –

and then certain formalities follow and presumably the provisions were in similar terms as previously in relation to the Immigration Review Tribunal.

HIS HONOUR:   In any event, the position was that he did have a visa.  It had expired, or was about to expire.  He made an application for another one.  That was refused.

MR MacLIVER:   Yes, another student visa, that is, your Honour.

HIS HONOUR:   Yes.  That was refused, so he then made an application to either the Immigration Review Tribunal or the Migration Review Tribunal, is that right, Mr MacLiver?

MR MacLIVER:   Yes.  The Immigration Review Tribunal, on my instructions, your Honour.

HIS HONOUR:   And did he fail there, did he?

MR MacLIVER:   He failed there, your Honour, because, as your Honour is no doubt aware, applications for review, either – formerly it was the Immigration Review Tribunal and now the Migration Review Tribunal and also, of course, the Refugee Review Tribunal.  That is to be made within seven days of notification of the decision.  The application to the IRT was not made within seven days and, accordingly, the IRT advised the applicant that it had no jurisdiction to consider his application.

It would appear then, your Honour, following that advice, that the applicant disappeared.  His whereabouts were not known to the Department of Immigration until earlier this year, when he was located and, of course, not having a visa in force, was a prohibited – or, sorry, an unlawful non‑citizen and was taken into custody as such and that is the present position and the Department intends to remove him on a flight leaving for Bangkok and then Kathmandu later on today, your Honour.

HIS HONOUR:   When was he apprehended, Mr MacLiver?

MR MacLIVER:   In February of this year, your Honour.

HIS HONOUR:   And have those who instruct you been able to ascertain whether he is, in fact, married?  In the papers he claims he is, I think, to a citizen.

MR MacLIVER:   It may well be the case, your Honour.  I am not sure whether ‑ ‑ ‑

HIS HONOUR:   You do not know.

MR MacLIVER:   No.

HIS HONOUR:   No.  Well, I know you have had ‑ ‑ ‑

MR MacLIVER:   It would appear that ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ very limited time to get instructions.  All right.  Now, if he is married to a citizen, can he apply for a spousal visa?

MR MacLIVER:   Section 48, your Honour, provides, in effect, that a person whose visa has been cancelled or who has been refused a visa, as in this case, may only apply for particular categories of visa and, your Honour, visas which are described for the purpose of section 48 are to be found in regulation 2.12 of the Migration Regulations.

HIS HONOUR:   I do not have the Regulations, I do not think.  What is the regulation say, Mr MacLiver?

MR MacLIVER:   Regulation 2.12, your Honour, says this:

For section 48 of the Act (which limits further applications by a person whose visa has been cancelled, or whose application for a visa has been refused) the following classes of visas are prescribed:

(a)  subject to subregulation (2), Special Eligibility (Residence) (Class AO) –

subparagraph (b) repealed –

(c)  Protection (Class XA);

(ca)  subject to subregulation (3), Medical Treatment (Visitor) (Class UB) –

subparagraph (d) is repealed –

(e)  Territorial Asylum (Residence) (Class BE);

(f)  Border (Temporary) (Class TA);

(g)  Special Category (Temporary) (Class TY) –

and then subparagraphs (h) through to (m) refer to the five classes of bridging visa, A through to E.

(n)  Resolution of Status (Temporary) (Class UH);

(o)  Resolution of Status (Residence) (Class BL);

(p)  Child (Residence) (Class BT).

HIS HONOUR:   Do you know what the section is that deals with spousal visas?

MR MacLIVER:   I am not sure whether any particular provision of the Act provides or refers to spousal visas, your Honour.  Certainly the Regulations refer to a category of visa.

HIS HONOUR:   No, the Act does not seem to.

MR MacLIVER:   No, most of the categories of visa are referred to in the Regulations.  I am just looking at the alphabetical index of subclasses of visas in the Migration Regulations, your Honour.  There are, it would appear, four different categories of spouse visa and they are in subclasses 100, 801, 820 and they are just all listed in the index of spouse visas and a spouse (provisional) visa subclass 309.

HIS HONOUR:   So there are such things as spouse visas, Mr MacLiver?

MR MacLIVER:   There are, indeed, your Honour, but the categories of visa to which a person in the applicant’s situation, or those categories which he applied for, are limited and ‑ ‑ ‑

HIS HONOUR:   By section 48?

MR MacLIVER:   By section 48 and regulation 2.12.  At first glance, your Honour, looking at the subparagraphs dealing with the specified classes in regulation 2.12, they do not appear to cover a spouse visa, although as I said to your Honour they do cover the five categories of bridging visa.

HIS HONOUR:   Yes.  So, Mr MacLiver, when the Tribunal rejected the application for a review of the decision, was there then an application made for review of the Tribunal’s decision in the Federal Court?  Was that what happened?  Did Justice French ‑ ‑ ‑

MR MacLIVER:   No, there was not, your Honour, and, in fact, as I said, the Tribunal did not make a substantive decision on the merits of the ‑ ‑ ‑

HIS HONOUR:   Quite.  Yes, you did tell me that.  What was the application to Justice French?

MR MacLIVER:   The application to Justice French, your Honour, if I could read from the heading of it, it was application No W120 of 2001 – presumably that should have been 2002 – but the heading, it was “Application by a Dhan Gurung for review of the respondent’s decision to cancel his permanent resident (spouse) visa and an urgent injunction on the respondent not to remove the applicant from Australia and an order that the applicant should not be detained”

HIS HONOUR:   All right.

MR MacLIVER:   So it would appear, your Honour, that the application is brought under a mistaken misapprehension that the applicant had, firstly, had a spouse visa and, secondly, that it had been cancelled when neither of those things had occurred.

HIS HONOUR:   All right.  So that was rejected by Justice French.  Did he give an ex tempore judgment, or what happened?

MR MacLIVER:   He did, your Honour, as I understand it, although I was not present before his Honour.

HIS HONOUR:   And you do not have a copy of his Honour’s reasons then?

MR MacLIVER:   No.  No, we do not, your Honour.

HIS HONOUR:   When was that decision given, Mr MacLiver?  When was Justice French’s decision given?

MR MacLIVER:   On Friday, the 19th, your Honour, just gone.  A week ago today.

HIS HONOUR:   Right.  Then how did the matter come before Justice Carr?

MR MacLIVER:   The applicant, as I understand it, your Honour – his Honour Justice French having refused to grant the interlocutory order sought, the applicant sought or applied for leave to appeal against that interlocutory order of his Honour.  So an appeal to the Federal Court required leave as it was an interlocutory order refusing the relief sought and that came before his Honour Justice Carr on Wednesday the 24th.

HIS HONOUR:   Well, Mr MacLiver, there are really two questions – the whole proceedings were quite misconceived obviously, but there are two matters that do concern me.  Most of the affidavit which has been filed is in an inadmissible form, I might say.  It is not something for the most part that I could act on.  But the applicant’s solicitor does say that he has been unable to obtain instructions, that, in effect, it has been very difficult to contact the applicant.  Do you have any instructions on that at all?  You probably do not, I suppose.

MR MacLIVER:   No, I am afraid I do not, your Honour.  I mean, the fact is that the applicant has been in detention, I think in Villawood Detention Centre in Sydney, since he was apprehended in February, so for some two, two and a half months, so he has been in a position to seek legal advice.  I appreciate that Mr De Alwis has only come into the matter fairly recently.

HIS HONOUR:   Well, you say that.  I mean, Mr De Alwis ‑ ‑ ‑

MR MacLIVER:   Since 17 April.

HIS HONOUR:   ‑ ‑ ‑ made some pretty far‑reaching claims.  He said he made 125 attempts.  Did you see that?  Have you seen the affidavit?

MR MacLIVER:   I have not seen Mr De Alwis’ affidavit, your Honour, or if I have, I cannot recall seeing that.

HIS HONOUR:   …..number correct, but he says he has made a very large – yes, he said:

last Thursday, I signed an affidavit myself to support the application.

Have you this affidavit, Mr MacLiver?

MR MacLIVER:   Is that an affidavit filed in the present proceedings before this Court, your Honour?

HIS HONOUR:   I think so.  It is not dated.  No, it is not.  You are quite right.  It is undated.

MR MacLIVER:   Yes.  I have been provided just this afternoon with an application in this Court which is attached to a number of documents including an undated – or an affidavit in the Federal Court ‑ ‑ ‑

HIS HONOUR:   Yes, that is what I am thinking.

MR MacLIVER:   ‑ ‑ ‑ sworn by Mr De Alwis.  It is some three pages in length and some 16 paragraphs.

HIS HONOUR:   And it is undated.  It has “Affirmed by” Mr De Alwis, “the 8th day of October 2000.”  Well, it is totally out of date, is it not?

MR MacLIVER:   I assume that is simply an error, your Honour, but, yes, the affidavit I have is undated or no date or “October 2000” and three pages in length and 16 paragraphs.  That is the same affidavit.

HIS HONOUR:   There is a current one.

MR MacLIVER:   Yes, I have a shorter affidavit bearing the High Court’s stamp, your Honour, of two pages, and 11 paragraphs in length.  Yes, I had not seen that.  Well, until I ‑ ‑ ‑

HIS HONOUR:   It does not really say very much.  Mr MacLiver, thank you for that.  Now, is there any balance of convenience issue here?  I take it there is no expense to the Commonwealth in the sense that if he does not fly out tonight, he flies out some other time if he is deported.  Is that what happens?

MR MacLIVER:   That would be correct, your Honour.  I imagine the only additional expense to the Commonwealth would be the daily expense of keeping the applicant in detention if he is in detention for whatever further period of time.  I would certainly concede that the balance of convenience favours the applicant, your Honour, however, the serious issue to be tried clearly does not.  In the circumstances, his Honour Justice French was quite correct in refusing to grant the injunction sought and ‑ ‑ ‑

HIS HONOUR:   Mr MacLiver, let me be perfectly frank with you what is troubling me.  The way the proceedings are presently formulated, they are hopeless.  They are totally misconceived.  The affidavit is full of inadmissible material.  Unless a proper application be made and the whole matter be put in order, it is really quite difficult to deal with at all.  Now, that concerns me because, frankly, I am concerned about the quality of the advice that the applicant is getting.  I do not like to see something as final as deportation occur without, at least, his having an opportunity to obtain advice and to see whether a properly formulated application can be made.  I very seriously doubt whether it can at this stage.

MR MacLIVER:   That would be the respondent’s position, your Honour.  The application for a further student visa having been refused and an application to the IRT not being made within the mandated statutory time limit, there is no basis for reviewing that decision.  Your Honour, no further application for a visa of any kind would appear to have been made up until the present time.  On that basis, it would be hard to see how any kind of application could properly be made in respect of this applicant.  There is no jurisdiction in the Federal Court at all.

HIS HONOUR:   But say he has a right, for example – and I am not saying that he has, I have no idea about this – at least to apply again to the Minister.  I think the Minister has a very broad discretion in respect of all visas ‑ to apply to the Minister for a visa of some kind or another, taking into account a new factor, for example, that he has been married to a citizen.  It might be desirable, perhaps, that he be given an opportunity to make that application.  The Minister has very wide discretions, does he not, that do not depend on section 48, I think?  I am just not sure about that.

MR MacLIVER:   Your Honour, the Minister has really very limited discretion in this area.

HIS HONOUR:   I thought the Minister might have some special powers under Part 9.

MR MacLIVER:   The Minister does have power, your Honour, both in respect of MRT decisions and RRT decisions, to make a more favourable decision following a decision by either of those tribunals.

HIS HONOUR:   Yes.

MR MacLIVER:   It is section 417 in respect of the RRT.  My instructing solicitor suggests – yes – section 351 in respect of decisions of the MRT, your Honour.

HIS HONOUR:   But is there a general sort of overriding compassionate provision with respect to some sort of compassionate or other grounds?

MR MacLIVER:   No, there is not, your Honour.  Other than that, that sort of consideration might be able to be taken into account by the Minister following a decision of the MRT or the RRT under his powers under sections 351 and 417 of the Act.  Of course, an applicant has to be in a position to make a valid application for a visa of a particular class and in respect of a person whose visa has been cancelled or whose visa has been refused, the effect of section 48 and regulation 2.12 is that such an applicant can only apply for a very limited class of visa.

As my instructing solicitor points out, your Honour, that restricts only the type of application which an applicant can make and apply for in

Australia.  That restriction does not apply to an application made outside of Australia.  So, this applicant can, if he wishes, following removal, make an application outside Australia for one of the categories of spouse visa, whichever one he considers might apply to him.  But certainly it does not appear that he can make an application while he remains in Australia for a spouse visa and the Minister has no power to override that statutory prohibition.

HIS HONOUR:   Yes.  All right, thank you, Mr MacLiver.  Do you want to say anything more?

MR MacLIVER:   No, not at this stage, your Honour, thank you. 

HIS HONOUR:   Mr De Alwis, this is what I am going to do.  I am going to adjourn this application until 10.30 am on 7 May when I will hear the matter again by video link.  I am going to grant an interim injunction until 2.30 pm of that day or earlier order.

Mr De Alwis, I want to make a couple of matters clear to you now.  The application that you have made is hopeless in its present form.  It is totally misconceived.  I do not know whether you have done it yourself, but the sorts of applications that you have made have been made without any reference to the Act and what the Act provides.  It is no good your looking to external documents and external matters.  Your client will need to make a proper application and that probably requires that you, yourself, to take some proper advice, because the affidavit that you filed in the Federal Court and which I have before me now is totally inadmissible for the most part.  For example, whether you are shocked or not by certain matters is utterly irrelevant.  It is a subjective complaint that has nothing to do with the facts of this case. 

Now, your client is very, very fortunate that I am prepared to grant an injunction of the kind that I am.  But let me tell you that unless a proper application is made, based upon proper material and which has proper regard to the Australian Constitution and the Migration Act, there are absolutely no prospects of success.  I am only granting the application because if I do not do so, what will happen will be final for your client.  I am just concerned that somewhere in there, there may be some kind of a case.  I cannot see it at the moment.  There may, perhaps, be some kind of a case.  It is no good your coming back before me on Tuesday week without, perhaps, going to somebody who does know this Act and who can make a proper application based on proper evidence.  Do you understand what I am saying to you?

MR DE ALWIS:   I do, your Honour.  I apologise for that.  Actually, I have just…..difficulty that I have.  I have not been well.  I have had…..

HIS HONOUR:   It might be better, perhaps, that you get somebody else in to do this matter.  Unless it is done properly, it will not even be entertained.  Do you understand that?

MR DE ALWIS:   In fact, I had very little time.  I came to the case on the 17th, your Honour, I had to rush to get everything done.  Now, your Honour was very correct in saying that at least…..

HIS HONOUR:   Do not worry about that now.  I am making an order so that a proper application can be made and proper submissions made to me and that the application can be based on a proper affidavit with admissible relevant material in it.

MR DE ALWIS:   Yes, your Honour.

HIS HONOUR:   There is no need for you to make any further submissions now.  I am going to grant the injunction for the limited time that I have indicated.

MR DE ALWIS:   Thank you very much.  I will come prepared – well prepared on the next occasion

HIS HONOUR:   Yes.  Are you counsel, Mr De Alwis?

MR DE ALWIS:   Yes, I am.

HIS HONOUR:   You are a counsel?

MR DE ALWIS:   Yes.

HIS HONOUR:   What, do you practise mainly as a solicitor or do you practise as both?  What is the position?

MR DE ALWIS:   In the High Court and the Federal Court I practise as a barrister…..other jurisdictions I do solicitor’s work.

HIS HONOUR:   Well, you might need to get a leader in or get assistance from somebody else.  I do not know.  But the material in its present form is hopeless.  It is almost an insult to a court.  So, make sure you put it in order if you want your application to be seriously entertained.

MR DE ALWIS:   I will, your Honour.  I was rushing.

HIS HONOUR:   Thank you.  All right, thank you.  I will just speak to Mr MacLiver.  Mr MacLiver, I do not know whether there may be some

kind of a case in there or some sort of an application that can be made.  You have been taken at very, very short notice yourself, have you not, today, without any proper material or anything of that kind?

MR MacLIVER:   Yes, your Honour.  Certainly, we have only been aware of this matter since late on last Friday.

HIS HONOUR:   I am prepared to make the order that I have indicated.  I would simply, because I am very concerned that perhaps there may be some kind of a case there.  At the moment I cannot see it, but we will see.  I will grant an interim injunction, as I have indicated, and we will see on Tuesday week.  But it would be very helpful if you could prepare material setting out a chronology and any information about ability to obtain instructions and matters of that kind.  I know you do not have anything that you can really respond to at the moment but it would certainly be helpful to the Court if you could do that.

MR MacLIVER:   Yes, thank you, your Honour.

HIS HONOUR:   With a chronology, Mr MacLiver, and perhaps you could ascertain whether, in fact, the applicant has been married and, if so, when, and matters of that kind.

MR MacLIVER:   Certainly, your Honour.  That only leaves the question of the costs of today, your Honour.

HIS HONOUR:   Do you want an order for costs?  Are you seeking an order?

MR MacLIVER:   I would seek an order for costs today, your Honour, yes.

HIS HONOUR:   All right.  Mr De Alwis, is there anything you can say about costs?

MR DE ALWIS:   …..your Honour, that this man has come as a student and he has not been working, he is impecunious.

HIS HONOUR:   Well, then, he should comply with the law.  He is impecunious, presumably, because he has been in hiding without a visa.

MR DE ALWIS:   Hiding – according to him, your Honour, he was married and having a child and he was living in Sydney.

HIS HONOUR:   He did not have a visa.  He was staying on in Australia without a visa and he did not make an application for a visa either.

I will make an order for costs and I will certify for counsel.

AT 5.11 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 7 MAY 2002