Holani v Minister for Immigration

[2000] HCATrans 98

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S96 of 1999

B e t w e e n -

ONITINA HOLANI

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 MARCH 2000, AT 2.33 PM

Copyright in the High Court of Australia

MS O. HOLANI appeared in person.

MR G.T. JOHNSON:  Your Honours, I appear for the respondent.  (instructed by the Australian Government Solicitor)

GUMMOW J:   Yes, now, you are appearing for yourself, Ms Holani?

MS HOLANI:   Yes, your Honour.

GUMMOW J:   We have had your written submissions and you wish to add to them by some oral statements to us?

MS HOLANI:   Yes, your Honour.

GUMMOW J:   Very well.  Please proceed.  But you will note that no more than 20 minutes can be involved.

MS HOLANI:   Yes, your Honour.  Your Honour, my name is Onitina Holani and I am the applicant in this proceeding.  I seek leave to hand up my additional summary of argument in respect of section 78B.

KIRBY J:   Have you shown this to Mr Johnson?

MR JOHNSON:   Yes, I have seen this, your Honours.  I have no objection.

GUMMOW J:   These questions were dealt with below, were they not?  These questions were dealt with in the Federal Court?

MS HOLANI:   Yes, your Honour.

GUMMOW J:   So these are questions which, if you obtained a grant of special leave, you would wish to argue again in this Court?  That is what it comes to, does it not?

MS HOLANI:   Yes, your Honour.  Your Honour, I do not need then to say anything further.  That is all, thank you.

GUMMOW J:   Thank you.  Yes, Mr Johnson.

MR JOHNSON:   Thank you, your Honour.

GUMMOW J:   What do we do about the constitutional points?

MR JOHNSON:   Your Honour, first of all I should note that the constitutional points were not dealt with in the reasons below.

KIRBY J:   There was mention of this point in the argument, was there not?  That was the first time it surfaced, I think.

MR JOHNSON:   Yes, it touched in this territory, your Honour.

KIRBY J:   I believe we heard the melancholy bell of section 78B of the Judiciary Act ringing.

MR JOHNSON:   I think so.

KIRBY J:   I think that is the question that Justice Gummow was asking you, that the matter having now been raised, what are we to do about it?

MR JOHNSON:   Yes.  Well, your Honours, with respect, we would say that the matter not having been dealt with below, it is inappropriate for the constitutional points to be allowed to be run in the context of an appeal to this Court, particularly since they raise such little merit.  The 78B notices that have been issued in this Court have been the subject to follow ‑ ‑ ‑

KIRBY J:   They have been issued?

MR JOHNSON:   They have been, your Honour, yes.  Your Honour, in the last page of the application book, pages 32 to 33, there appears a section 78B notice and ‑ ‑ ‑

KIRBY J:   I see, I missed that.  Does that encompass the three matters that are in the summary of argument handed to us this afternoon?

MR JOHNSON:   Your Honour, it is more succinctly put in the summary of argument, but the monosyllabic answer to your Honour, I think, is yes.

GUMMOW J:   Is there any response to those notices?  I see they are dated a while ago now.

MR JOHNSON:   My instructing solicitor has made inquiry of all of the Attorneys and none wish to intervene.

GUMMOW J:   Thank you.

MR JOHNSON:   Your Honours, if I could perhaps then attempt to state the answer as shortly and succinctly as I can.  Your Honours, we would say that no real issue, no issue of any prospect of a constitutional nature arises.  The case below turned upon the applicant’s non-fulfilment of a mandatory criterion for the grant of a visa, in particular, for the grant of a sub-class 806 visa.

GUMMOW J:   You say it was an absolute requirement of time.

MR JOHNSON:   That is right.

GUMMOW J:   With no discretion.

MR JOHNSON:   That is right, your Honour, and because she did not meet clause 3002 of Schedule 3, which she was at all times required to meet as at the date of application, by reason of regulation 816.212(a), to which we have made reference in the supplementary summary, her case was really doomed to fail before the Tribunal and it is that point upon which Justice Madgwick’s decision turned, and it is really that point upon which the Full Court dismissal of the appeal from him turned.

In relation to the decision below, there is no doubt, I would respectfully submit, attending the accuracy of that decision and, with respect, the submission I have already put to your Honours that there is really no viable constitutional argument put or no ‑ ‑ ‑

GUMMOW J:   You set out your submissions on page 28, paragraph 12, is that right?

MR JOHNSON:   That is so, your Honour.  There was also a supplementary document that we sent to the Court yesterday bringing to the Court’s attention some recent decisions of the Full Federal Court that are very much directly on point and which summarise the relevant authority.  Could I just ask your Honours whether your Honours received that?

GUMMOW J:   I am not sure I have that.

MR JOHNSON:   It was entitled “Supplement to Respondent’s Summary of Argument” and I brought it to the Registry yesterday afternoon.  If your Honours please, I might just take a moment just to take your Honours through this.  I will start with the second paragraph, if I might?  The second paragraph, in effect, puts before the Court the relevant legislation, the criteria that she failed to meet, and I have annexed copies of the relevant parts of the reprint, both before and after the material times.  So, before her application and after the Tribunal decision and there is no relevant change.  So, if I could just take your Honours to page 1 of the attachments.  Your Honours will see there, 3001(1)(b):

if the applicant became an illegal entrant before 1 September 1994 –

skipping over the words in brackets which do not matter here –

and has not, at any time on or after 1 September 1994 been the holder of a substantive visa – they day when the applicant last became an illegal entrant -

that is the definition of a day, and then clause 3002, halfway down the page, says that it is a requirement that:

The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)).

In other words, 12 months from the day upon which she last held a visa.  That was the requirement that was not her complied with. 

The next page 2 is the reprint after the Tribunal decision and we have put it there simply to show that those requirements did not change.  If your Honours go to page 3, halfway down, regulation 806.212(a).  That is the requirement that she satisfy “Schedule 3 criterion 3002”, and if your Honours skip to page 5 – this is the reprint of 1 September 1999 after the Tribunal decision and the provision which here occurs actually on the top of page 6, remains unchanged.  So, that is the legislation and the other paragraph, paragraph 1 of our supplement, simply does the job of putting before your Honours a summary of some recent Full Federal Court decisions.

GUMMOW J:   In particular, these constitutional grounds, or what, in substance, are the same constitutional grounds, seem to be dealt with in reasons for judgment in three matters.

MR JOHNSON:   When particularly, your Honour, in that matter of, I have described it as Tuitupou ‑ ‑ ‑

GUMMOW J:   Yes, reasons of 6 March.  That is right at the end of a bundle we have been given.

MR JOHNSON:   Exactly, your Honours.  If I could perhaps take your Honours to that because it usefully collates the answer to the three points raised.  Your Honours will recall that Ms Holani’s first point is, in effect, that it is unconstitutional for the Commonwealth to enact criteria that have a retrospective effect on her.  There are two answers to that.  The first is to be found in paragraph 9 of that Full Court decision, and that is simply that the provision is not retrospective.  But even if it was, it would not, in any event, be unconstitutional because of the authorities summarised there by their Honours in paragraphs 10 and 11.

GUMMOW J:   Yes.

MR JOHNSON:   That, I think, is the short answer to that.  Ms Holani’s second proposition, that it is unconstitutional to enact legislation which authorises the making of regulations inconsistent with section 47 of the Human Rights & Equal Opportunity Commission Act, should, I think, be answered in three ways.  Firstly, to note that the Human Rights & Equal Opportunity Commission Act has no constitutional force such that an inconsistent law could not be made.

But, in any event - and this is our second answer - a declaration under section 47 of that Act does not incorporate the convention into Australian law and it is the position of the UN Convention on the rights of the child is similar in that respect to the international covenant on civil and political rights that is referred to in Schedule 2.  Your Honours will recall that that has been held not to have been incorporated into Australian municipal law.

KIRBY J:   It can be used in construing ambiguous laws, I think, or at least Justice Brennan in Mabo [No 2] suggested that it would find its way into our law interstitially but it has not yet been incorporated as part of the law as such.

MR JOHNSON:   Indeed, your Honour, and the status of it has recently been dealt with - if I could give your Honours a decision that we have not previously supplied - by the Full Federal Court in Minogue v Williams.  I give this to your Honours because it contains a helpful summary of the leading authorities in this Court.  If I could take your Honours to paragraph 21 of that print.  There is a heading “Has the ICCPR been incorporated into Australian domestic law?”, and the Full Court, from 21 through to 25, explains that it has not, despite it being picked up in the schedule to the HREOC Act, and in paragraph 22, in particular, there is a reference to what was said in Dietrich.

So, your Honours, that is, in effect, the second answer to my friend’s second contention but, thirdly, and perhaps most importantly, is that even if this regulation was inconsistent with Article 3 of the UN convention on the rights of a child, which is not conceded, the criterion would not for that reason be constitutionally invalid and the authority in support of that proposition is conveniently collected in that same Full Court decision that I first referred your Honours to, Tuitupou v The Minister (2000) FCA 197, this time in paragraphs 12 to 15, if I could just invite your Honours to have a quick look at those paragraphs.

The third argument, that it is unconstitutional to enact legislation in the form of the Migration Act which authorises the making of regulations

which have an unjust effect, is simply a proposition in support of which, I would respectfully submit, there is no authority.  That same Full Court decision holds to that effect in paragraph 16 and in the original summary of argument which occurs in the application book, in particular in the paragraph that your Honour Justice Gummow reminded me of before, paragraph 12, make reference there to Cunliffe, as to the breadth of the alien’s power, and also to Robtelmes v Brennan, where Chief Justice Griffith had spoken of the powers, that is the alien’s power, is:

including “the power to determine the conditions under which aliens may be admitted to the country, the conditions under which they may be permitted to remain in the country, and the conditions under which they may be deported from it”.

And observed that he:

cannot, therefore, doubt that the Commonwealth parliament has under that delegation of power authority to make any laws that it may think fit for that purpose;  and it is not for the judicial branch to review their actions or to consider whether the means that they have adopted are wise or unwise.

It is not a purposive power.  It is a power to make laws with respect to a class of persons, namely, aliens and the statements in Cunliffe are really all quite broad to that effect.  So, your Honour, in short, we would say there is simply no principle, as asserted, that a law cannot be made which is unfair.  Even if that is not conceded, this would otherwise carry that adjective.  If your Honours please, those are the respondent’s submissions.

GUMMOW J:   Yes, thank you.  Anything in reply?

MS HOLANI:  No, your Honour.

GUMMOW J:   Thank you.  We will take a short adjournment.

AT 2.54 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.53 PM:

GUMMOW J:   The Court does not consider there is any error in the reasons of the Full Court of the Federal Court which could warrant the grant of special leave.  The constitutional points belatedly raised were the subject of notices under section 78B of the Judiciary Act.  There has been no intervention in response to those notices.  The Court is not convinced that on these constitutional grounds either, the application should be granted.

Accordingly, special leave is refused with costs.

MR JOHNSON:   If the Court pleases.

AT 2.54 PM THE MATTER WAS CONCLUDED