Holland, Ex parte - Re MIMA

[2001] HCATrans 420

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  No P5 of 2001

In the matter of -

An application for a Writ of Certiorari and Prohibition against –

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

RAHIMA BANNERMAN

Second Respondent

IMMIGRATION REVIEW TRIBUNAL

Third Respondent

Ex parte

ARINAH HOLLAND

Applicant/Prosecutor

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 25 OCTOBER 2001, AT 11.56 AM

(Continued from 17/10/01)

Copyright in the High Court of Australia

MRS A. HOLLAND appeared in person. 

HIS HONOUR:   Yes, Mrs Holland.  You are appearing in your own interest, and you are here with your husband, Mr Holland.  Is that correct? 

MRS HOLLAND:   Yes, your Honour. 

HIS HONOUR:   Yes, very well.  It is nice to meet you ‑ ‑ ‑

MRS HOLLAND:    Thank you, your Honour. 

HIS HONOUR:    ‑ ‑ ‑ otherwise than in the video link.  Now, Mr Tsaknis, I think ‑ ‑ ‑

MR T. CAREY:  If your Honour pleases, Mr Tsaknis has just popped out of the court for a moment. 

HIS HONOUR:   That is all right.  We will just wait for a moment. 

MR CAREY:   Thank you, your Honour. 

HIS HONOUR:   I think Mr Tsaknis has handed in some written submissions.  Do you have those, Mrs Holland? 

MRS HOLLAND:    No, your Honour. 

HIS HONOUR:   Do you have a copy for Mrs Holland? 

MR CAREY:   Yes, I have. 

HIS HONOUR:   If you could give those to Mr and Mrs Holland and we can both read them, because I have not seen them before this moment.  They have just been handed to me, so there is no disadvantage to you.  You both just sit there and read it, and you may sit down beside your husband and you can read the document together. 

MRS HOLLAND:    Thank you. 

HIS HONOUR:   We slipped in on you, Mr Tsaknis.  You are appearing for the respondent? 

MR L.A. TSAKNIS:   I appear for the respondent.  (instructed by the Australian Government Solicitor) 

I am sorry, your Honour, I did not notice you were here.

HIS HONOUR:   Well, I am a very inconspicuous sort of a judge. 

MR TSAKNIS:   I have just seen too many wigs and gowns in the last couple of days, your Honour. 

HIS HONOUR:   I see.  Well, you will not see the wigs around here.  Have you had the opportunity now to read that document, Mrs Holland? 

MRS HOLLAND:    Yes, thank you. 

HIS HONOUR:   And your husband has, too? 

MR R.J.F. HOLLAND:   Yes, your Honour. 

HIS HONOUR:   Very well.  You may just sit down for a moment.  It is my duty to get the record into order.  There are a number of affidavits which have been filed which, I take it, Mrs Holland, you wish to read formally.  You do not have to read it out, but you want to put them on the record before me, is that correct? 

MRS HOLLAND:    Yes, your Honour. 

HIS HONOUR:   I will identify those affidavits and you can tell me if I have all of them that you wish to file today that have not already been placed me.  The first is an affidavit sworn by yourself, dated 22 October 2001; the second is an affidavit by your husband, Mr Richard Holland, which is sworn 22 October 2001; the third is an affidavit of Mr Paul Robert King, sworn 19 October 2001; the fourth is an affidavit of William Sykes, sworn 19 October 2001; and the fifth is an affidavit of your husband’s father, Mr Harold Holland, sworn on 22 October 2001.  You read those affidavits? 

MRS HOLLAND:    Yes, your Honour. 

HIS HONOUR:   Is there any objection to the reading of the affidavits, Mr Tsaknis? 

MR TSAKNIS:   There is not, your Honour, not to the reading of the affidavits. 

HIS HONOUR:   Very well.  Do you wish to cross-examine any of the deponents in the evidence which they have placed before the Court in the form of the affidavits? 

MR TSAKNIS:   I do not, your Honour.  When I say, there is no objection, I should qualify that.  There are a number of matters which could be objected to but, in my submission, I do not want to be really going through each and every paragraph, given the issues.  At this juncture, in my submission, it is sufficient that they be admitted and what weight be given to them to be determined at the end by your Honour. 

HIS HONOUR:   Very well.  I will admit and receive the affidavits but you will have a full opportunity, in addition to the written submissions which you have just handed in, to make any submissions on the weight of the evidence.  You do not wish to cross-examine any of the deponents?

MR TSAKNIS:   No, we do not wish to cross-examine any of the deponents, your Honour. 

HIS HONOUR:   Very well.  I understand from the affidavits that the various deponents have inconvenienced themselves by coming to the Court today.  They are here, and they will not be cross-examined, so they are free to leave if they wish to do so.  I thank them for coming to the Court.  It is not necessary for them to stay, though, of course, this Court, like every court in Australia, is an open place, and they can stay if they wish to.  Is that all of the evidence that you wish to place before me, Mrs Holland? 

MRS HOLLAND:    Yes, your Honour. 

HIS HONOUR:   Very well.  Do you have any evidence that you wish to place before the Court, Mr Tsaknis? 

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

HIS HONOUR:   Thank you.  What do you say, Mrs Holland, or Mr Holland?  Both of you or one of you can speak, if you wish to.  You have been given a bit of a clue as to the thinking of the Minister by the supplementary submissions that have been handed to the Court this morning, but if you wish to say anything to me now, I will listen to your submissions on your case. 

MRS HOLLAND:    Could you let my husband speak on behalf of me, please? 

HIS HONOUR:   Of course. 

MRS HOLLAND:    Thank you. 

MR HOLLAND:   The contents of the respondent’s outline of supplementary submissions, sir, just having a quick look at it, seems to have a common theme, in that everything we have said does not constitute a breach of natural justice, does not constitute us showing any area of bias.  But I say to, sir, that with this case and the way it has gone, and the fact that, for example, my father’s affidavit stated that one key issue was that – he maintains in his affidavit that he had said that myself and my ex-wife – he did not say that myself and my ex-wife were colluding to incur legal problems for my wife in remaining in the country. 

My father never made that statement, according to his affidavit that he has sworn by, and that seems to be a pivotal piece of information that the chairperson of the Immigration Review Tribunal put forth.  I contest the statements from the respondent’s submission, your Honour, in the sense that the affidavits clearly state that in every single case they had given strong evidence to the Immigration Review Tribunal in support of us being an exclusive, permanently committed couple.  The fact that things got twisted around and a determination came out where it was determined that we were not an exclusive couple, just goes against the grain of the affidavits, I feel, that are before the Court now.

HIS HONOUR:   I know that this must be very difficult for you to understand, because many judges have found difficulty in explaining the difference, but there is a difference in law between a court or a tribunal making a mistake and a court or a tribunal not exercising its powers of jurisdiction.  What the Minister is effectively saying is that you have to show the latter type of error.  In order to get relief from this Court, you have to show that the Tribunal failed to exercise its jurisdiction and powers, whereas what it is said by the Minister is that what you have shown is that they exercised their powers and jurisdictions but in an erroneous way. 

It is a very difficult thing, I appreciate, to understand, but it comes down to this, that I cannot give you relief and the High Court of Australia cannot give you relief just because we came to the conclusion that what you and your wife – now wife – were saying was correct, that we would accept what you say.  We can only give you relief if you can show that the Tribunal was biased or failed to accord you natural justice or procedural fairness or, in some other way, stepped outside its jurisdiction.  The Minister says all you have tried to do by your evidence is to show an error of the first kind, namely, that they made a misassessment of the evidence, and that that does not attract the intervention of a court for jurisdictional grounds.  Now, have I explained that adequately to you? 

MR HOLLAND:   You have explained that to me, sir, but ‑ ‑ ‑

HIS HONOUR:   I think I tried to do it before, when the matter was before me in Canberra with video link from Perth. 

MR HOLLAND:   A number of issues, sir, where the power, I believe, has been misused is, in the first instance, a number of incorrect statements were said about me.  For instance, it was stated that I was rude during the ‑ ‑ ‑

HIS HONOUR:   I saw that. 

MR HOLLAND:   I was not rude, sir.  I was not rude once. 

HIS HONOUR:   Well, you have not been rude to me, but there appears to have been some friction between you and the Tribunal member. 

MR HOLLAND:   There was friction, sir, and I believe the friction was that my wife, Arinah, has dared to declare that she is Muslim, and that is the reason.  That is the reason. 

HIS HONOUR:   I know you said that on the last occasion, but there is no evidence of that at all, I am afraid, and therefore it is not a matter that you can rely on nor that I could give weight to. 

MR HOLLAND:   Do you mind if my wife speaks? 

HIS HONOUR:   Yes, of course. 

MRS HOLLAND:    Thank you, your Honour.  I feel this authority was biased on the ground that this case was just based on Richard Holland’s ex‑wife’s affidavits and not on other witnesses that came in on that particular day. 

HIS HONOUR:   But the Tribunal does refer to the affidavits and does refer to the ex-wife’s facsimile, and does say that it discounted her evidence because, to quote the Tribunal, “she was a woman scorned”.  Therefore, it does appear as though the Tribunal, on the face of its record of the reasons, has taken into account the fact that she would be biased against you and your now husband.  So it is very difficult for me, looking just at the record, to see the bias that you are alleging. 

MRS HOLLAND:    If this court or this government, I mean, immigration, could not see me living as closely to Richard Holland, I may ask you people in this room what am I doing in Australia for the last 12 years if I am not with Richard Holland then?  Please give me an answer to that question, because I have gone through so much in my life, I do not know how long I can take this any more.  I just need an answer why.  Why do I have to go through this if everyone believes I am not living with Richard Holland exclusive to each other?  If ‑ ‑ ‑

HIS HONOUR:   You see, the problem was, there was evidence that Mr Holland used to go back to his other matrimonial home, and ‑ ‑ ‑

MRS HOLLAND:    Yes, he did, your Honour. 

HIS HONOUR:    ‑ ‑ ‑ the Tribunal had to weigh that evidence up. 

MRS HOLLAND:    Yes, he did, your Honour.  He did run back to the matrimonial house because he has to tutor his two children.  Steven Imbram Holland at that time was only 16, and Laurina Sue Holland was only 15.  They were both doing the TEE exam, in two consecutive years.  That was the reason that he went back there, but not on the ground that he was living with Fallilah Holland.  Anyone can make up a story and say, “So and so are sleeping with each other”, but who can prove?  Who can prove – I mean, it is just, based on this - my affidavit.  Even went down to check on the nextdoor neighbour to confirm whether Richard Holland was still living with Fallilah, and the neighbour said, “No” and even checked on Richard Holland’s daughter, and she confirmed, “No.”

HIS HONOUR:   Yes, I read all of that. 

MRS HOLLAND:    Yes, but it is just incredible.  I mean ‑ ‑ ‑

HIS HONOUR:   When did the divorce take place between Mr Holland and Mrs Fallilah Holland? 

MRS HOLLAND:    It took place in April 1999. 

HIS HONOUR:   That was after the decision by the Tribunal. 

MRS HOLLAND:    Yes, that is correct, because we had to go to the Family Court and we have to go to the Local Court because – I have just gone through so much in my life that ‑ ‑ ‑

HIS HONOUR:   Well, I know that, and I am sorry that you have gone through that, but I have to deal with it on the material that is before me.  Now, a lot of these problems – I know it is easy to be wise in retrospect ‑ would have gone away if the divorce had happened before the hearing in the Tribunal and you and Mr Holland had married at that stage. 

MRS HOLLAND:    We have taken steps on that, your Honour, but it is just that the way the case has been going on, Fallilah Holland at that time was just trying to drag it on in the Family Court and then she tried to drag it along in the Local Court by putting a misconduct restraining order on me.  Finally, I have to put a violent restraining order on her, and that dropped all

the cases and finally she accepted that.  The divorce took place in April 1999. 

HIS HONOUR:   Yes. 

MRS HOLLAND:    Can you let my husband speak now, please? 

HIS HONOUR:   Yes. 

MRS HOLLAND:    Thank you. 

MR HOLLAND:   Thank you, sir.  First of all, just getting back to that thing with the divorce.  We had already taken steps for the divorce, because I had already signed over the property at 3 Hillside Close, Edgewater in January 1997 to the ex-wife.  The chairperson of the Tribunal chose not to accept that as evidence and decided instead to twist my evidence into saying that there was some sort of financial conspiracy between me and my ex‑wife to carry out some property-swapping action and defraud the government by using section 86 of the Family Court Act to carry out a very cheap property transfer.  That was not the case at all, because the property settlement occurred and that was part of the property settlement that was already before the court at that time.  It was clear evidence; if a reasonable person had chosen to look at it in that manner, they would have seen that that was obviously one of the steps which was proceeding towards divorce. 

HIS HONOUR:   I only raised that because whether you get divorced and when you get divorced is your own business, but if you had got divorced, and married, as you would appreciate, it lifts you into a different category in the regulations, and you then have the relationship of marriage, which itself is a declaration to the world of a permanent, exclusive relationship. 

MR HOLLAND:   That is correct, sir. 

HIS HONOUR:   Or normally is.  Not necessarily, but normally. 

MR HOLLAND:   We had informed the court that we intended to get married once I was divorced, sir.  That was always the intention and that always what we were going to do. 

HIS HONOUR:   But, you see, what you and your wife are saying to me is that the Tribunal made a mistake; they misassessed the evidence; that the tribunal got the decision wrong.  That is not a ground for the intervention of this Court.  This is not an appeal court from the Tribunal. 

MR HOLLAND:   No, sir.  What we are actually saying is that the evidence was twisted and manipulated for the final determination to come out the way that it was.  Now, any reasonable human being, beyond any reasonable doubt, at that time, with our witnesses all saying this, that we were a permanent couple, and anyone who took our evidence, as even on a 50:50 basis, would have had to have said, “Well, we do have a section 86 property settlement before us.  If all of this highfalutin fantasy brought up in the determination stating that my ex-wife and I were involved in some conspiracy to defraud the government, that was just pure manipulation of the evidence.  It was a very clever twisting.  It is a pity that we cannot find the transcripts, because if we had the transcripts, we will see that I was not evasive at all. 

HIS HONOUR:   That may be so, but ‑ ‑ ‑

MR HOLLAND:   I was totally honest and straight up and totally up-front, sir. 

HIS HONOUR:   We do not have the transcript so, as I explained to you last time, the best we can do is to act on the affidavit reconstruction of it, so far as we can. 

MR HOLLAND:   And I think I put that in my affidavit, your Honour.  Hopefully, we have reconstructed that fact.  With regards to Mrs Holland’s evidence being discounted, I do not believe it was discounted.  The grounds of the decision were made on my ex-wife’s evidence, even though she had stated in there that she considered my ex-wife to be a scorned woman and her evidence should not be relied on.  Nevertheless, it played a very significant role, and a determining role, in the final determination.  I maintain that that is a very clear breach of natural justice. 

HIS HONOUR:   Yes.  Your essential case therefore comes down to the fact that, although you cannot prove what the transcript says, the examination of the reasons of the Tribunal, read alongside the affidavits which you and your wife have presented to the Court today, are sufficient to indicate that no reasonable tribunal could, on that material, have come to the conclusion which the Tribunal did in your case ‑ ‑ ‑

MR HOLLAND:   That is absolutely correct, sir. 

HIS HONOUR:    ‑ ‑ ‑ and that therefore this Court should intervene on that basis. 

MR HOLLAND:   That is correct, sir. 

HIS HONOUR:   It is very difficult to get success in those cases, to say that no reasonable tribunal could reach the conclusion, because, in the

nature of conflicting evidence, tribunals reach different conclusions every day of the week, in Australia. 

MR HOLLAND:   I acknowledge that, sir, but by the same token, I think that everyone in this courtroom in their own mind must think that – well, they must believe us at least 50:50, and my understanding ‑ ‑ ‑

HIS HONOUR:   That is not good enough to show that no reasonable tribunal would have reached the view that this Tribunal did.  That is the problem.  However, I think I understand the way you put your case, and I am going to call on Mr Tsaknis, for the Minister, and I will give you an opportunity to put anything in reply that you and your wife wish to put. 

MR HOLLAND:   Thank you, sir. 

HIS HONOUR:   Yes, Mr Tsaknis. 

MR TSAKNIS:   Your Honour, I have perceived the arguments in relation to reasoning.  It really attacks the credibility findings made by the Tribunal.

HIS HONOUR:   Where is that finding? 

MR TSAKNIS:   The findings are at page 25 of the reasons.  Page 34 of the affidavit of Arinah Holland, and it is the first full paragraph on page 34: 

Throughout these proceedings both the Department and this Tribunal have expended a great deal of effort and stretched limited resources investigating this matter.  Neither the Applicant nor Mr Holland have co-operated in this process; in fact they actively impeded it.  Mr Holland’s demeanour before the Tribunal alternated between rudeness, aggression and contempt.  It would appear that adherence to the laws of this country has never been of high priority to him.  He has made a false statement in the application form by stating that he and the Applicant lived at 82 Telfer Crescent, Stirling when in fact he did not live there.  His entering into a second marriage without dissolving his first is a bigamous act under Australian law, a matter he was well aware of.  His feigned ignorance of legal and financial issues is at odds with the fact that his employment involves complex financial matters requiring a knowledge of laws of other countries.  The Department may well wish to take these matters further.  The Tribunal finds that Mr Holland’s reluctance to assist the Tribunal with its inquiries bordered upon obstruction and the Section 86 property settlement should be further investigated.  It goes without saying that the Tribunal did not find him to be a credible witness. 

Now, those findings, your Honour, as this Court and other courts have said on many times, are the findings of a decision-maker par excellence.  But I ought not stop there, and I say this given the concerns of the applicant herself.  One needs to read those comments in the context that the Tribunal was aware of not only the prosecutor’s position, but also where she, in effect, found herself.  In the next paragraph, the Tribunal goes on to recognise that: 

the Applicant is largely the innocent party in this matter.  She presented as an intelligent, educated and articulate woman with a good command of English.  Had she not entered into a relationship with Mr Holland in 1990, she would doubtlessly have established eligibility for a permanent visa of another class well before now.  It is curious why she did not do so, choosing instead to absorb herself into the community in full awareness of her unlawful status.  Mr Holland, for reasons of his own, does not appear to have encouraged or assisted her regularise her status in Australia.  Having the Applicant work in his business for what in effect was her food and keep and not paying her a proper wage, invites a finding that in addition to any other criticism made of him by the Tribunal, he also exploited her.  Mr Holland’s primary concern throughout this matter has been for his own welfare, and not that of the Applicant. 

I raise that because, when one is looking at this question of reasons, there seems to be, with respect, your Honour, a fundamental point missed in the Tribunal’s deliberations, and that is both persons have to have a relationship to the exclusion of all others.  What the Tribunal effectively found was that Mrs Holland, if I may call the prosecutor that, did have an exclusive relationship, but it fell down because Mr Holland did not have an exclusive relationship from his part. 

HIS HONOUR:   What concerns me is that the Tribunal seems to have had a lot of suspicion about the relationship between Mr Holland and the applicant, and to have, as it were, been hunting around or looking around for reasons to cast doubt on it.  It is not unknown, where people have a failed marriage, for a member of the failed marriage to continue a link with the children of the failed marriage, or even, for that matter, with a former wife, husband or partner.  That is a very common thing in Australia today.  Fifty per cent of marriages break down, and it is not in the public interest that people should totally sever their relationship with their children or, for that matter, with their former partner. 

The Tribunal seems to have been looking with a big magnifying glass to try to find reasons for suspecting this relationship which, as we now know – though this was not known to the Tribunal – has resulted in the divorce of the first marriage, and the marriage of the applicant and Mr Holland. 

MR TSAKNIS:   Yes, your Honour.  All those points granted though, we say, on a fair reading of the Tribunal’s decision, it was dealing with a very complex factual relationship where parties were, or at least one of the parties was coming and going from two relationships.  That is the starting point, we say.  We also say that in the Tribunal’s own reasons for decision, at the crucial date - and, bearing in mind again the crucial date is 26 September 1997 because that is when the application was made - there is evidence by the prosecutor herself that Mr Holland was returning to the matrimonial home, staying overnight, including up to before Mr Holland travelled to Indonesia in December 1997, and that she did not like that.

Now, if we return to those facts - and I say for the benefit of the prosecutor, they are at page 10 of the reasons for decision - if one goes to those facts and takes evidence of comings and goings to the matrimonial home and overnight stays - and I am reading paragraph 3 from page 10 on page 18 of the affidavit, your Honour:

The Applicant said that after she and Mr Holland commenced living together permanently, he only returned to the former matrimonial home in Edgewater for matters concerning his children, such as tutoring them for their TEE.  The Applicant admitted that Mr Holland occasionally stayed overnight and that this was the source of conflict between them, challenging him with statements such as ‘why are you returning, she kicked you out’.

HIS HONOUR:   That is the sort of words that partners often exchange in situations of this kind.

MR TSAKNIS:   Yes, we acknowledge that, your Honour.  Then one goes to the second last paragraph of that page, to a later time:

The Applicant said that she and Mr Holland went to Perth together 3‑4 times a week, saying that Mr Holland only stayed at Edgewater with his wife prior to after travelling to Indonesia in December 1997 and after his return from another trip to Indonesia in April 1998.

Now, I agree with your Honour, wholeheartedly, that one might interpret that in a whole range of ways.  But what the reasons do disclose is a process of reasoning whereby there is comings and goings between the former wife and the new wife.  Now, one might say that is understandable in a relationship which has broken down; one might say that is a situation where one man wishes to, in effect, as the Tribunal saw as at the relevant date, really had it both ways as far as two women are concerned.  The Tribunal, we say, had the jurisdiction to decide that question.

I do not wish to deal with the question whether it got that question right, your Honour.  In my submission, there is ample material that it did.  But, at the end of the day, there was material there for it to make that decision.  It had jurisdiction to make that decision.  The bias question ‑ ‑ ‑

HIS HONOUR:   I have to tell you, Mr Tsaknis, that if this matter were before me simply on the facts as revealed to me, although I do not have the transcript of the proceedings before the Tribunal, I would, myself, take a different view, because I think it is a little bit old fashioned to say that because a person goes back to a former matrimonial home and sees the children and tutors them, or even sees the former partner, even stays overnight, that that means that you do not have an exclusive relationship with somebody else.  I am just concerned that the Tribunal may have applied a too narrow test of exclusive relationship.

After all, that has to be read in today’s Australian society where people do have complex interpersonal relationships.  Marriages break down all the time.  In my family a marriage has broken down, one of my siblings, and there is still a good relationship between the former partners.  They visit each other and they see the children.  That is a good thing.  It is not something to be discouraged by the regulations.

MR TSAKNIS:   Yes, your Honour.  Your Honour is saying, as indeed, and many others may have give different weight to the various considerations that the Tribunal gave weight to, and we acknowledge that. 

HIS HONOUR:   I just have a feeling the Tribunal was very suspicious.  I cannot put my finger on it, but I just have a feeling the Tribunal reacted adversely to Mr Holland; thought, as you have put it, quite fairly, that he was having it both ways, keeping both relationships, and they did not like it and they have, in a sense, punished the applicant.  That is the matter that concerns me.

MR TSAKNIS:   One may look at it as punishing the applicant, your Honour.  It is the unfortunate consequence which follows for the applicant.  That is really the difficulty in it given the exclusivity has to be by both parties and there is little doubt - I would not stand here and argue that there is anything to suggest the prosecutor has in any way not, from her point of view on any of the evidence, been in a bona fide relationship to the exclusion of all others.

But the legislation, which is set out in the reasons - it is transcribed at page 5 - that the two persons have a mutual commitment to a shared life as husband and wife to the exclusion of all others.  That is the test that both parties have to - with respect, in my submission, that the Tribunal apply the correct test, as harsh as it may be for the prosecutor in this case, who is the innocent party, and the Tribunal recognised that, your Honour.

HIS HONOUR:   I know that they said that. Do you remember that I asked you last time the matter was before me whether there was not some other way under the Act for onshore application to reopen the matter. I think you told me on the last occasion, there is not.

MR TSAKNIS:   I was instructed that the applicants would need to make an application offshore and it seems to me that that is the difficulty which is probably concerning the applicant.  But having said that, I was told that the application would not be long in getting processed.  That is what I have been told, that if an application is made, it would be processed very quickly.  That was my instruction.

But as far as the Department is aware, my instructions are there is, obviously from its point of view, a concern that there is - in other contexts, your Honour will be aware concerns that applications are made offshore as distinct from being onshore, and that is an important consideration so far as the Department is concerned from its migration procedures.  But there is certainly nothing to impede an application.  The difficulty is that it would need to be made by the applicant offshore rather than onshore.

HIS HONOUR:   There is no power in the Minister to waive that requirement under the Act?

MR TSAKNIS: Not as I am aware, your Honour, although I did point out there was a specific category but I have not heard whether that would be one that - express instructions, I think I referred to a specific category which was available which seemed to me, at first blush, to be able, under the Act, and that was a special category, “temporary”, but again that is a temporary visa.

HIS HONOUR:   What regulation is that under?

MR TSAKNIS:   Regulation 1219, your Honour.  It is regulation 1219 in Schedule 1, the “Application must be made: (i) in Australia”, is the only criteria which seems to be there.  There is a special category of “Temporary” visa but, again, I do not wish to be giving legal advice but if an application were made there and assuming one had to go overseas to make the actual application, it would seem to me that there would, at first blush, be a process where one could obtain a visa to be here, go overseas and make an application and return under that temporary visa.

The inconvenience then would be, of course, having to go overseas and make the application and come back.  I say that, not as a way of legal advice, but it seems to me it is a procedure which would be open and one that at least would be available to be made.  But that of course would be an application based on the circumstances as existing after 26 September 1997, your Honour, and in my submission, we ought not to lose track of the fact that this application is concerned with the legalities of the decision made on 26 September 1997 and whatever the consequences of that may be, and unfortunate as they are, there is no legally reviewable error so far as discerned in any of the material to indicate bias or no opportunity be heard, your Honour.

HIS HONOUR:   Yes, I have read your written submissions on that.  Is there anything else you wish to say?

MR TSAKNIS:   No, there is nothing further I wish to add, your Honour.

HIS HONOUR:   Thank you, very much.  Is there anything in reply?

MR HOLLAND:   Thank you, sir.  First of all, sir, I would like to point out that we live 120 kilometres from the Perth GPO and we also live about 120 kilometres from the Edgewater house.  Now, the innuendoes and aspersions that have been made about me when I was staying at the Edgewater home are complete fabrication.  I was staying there - if I stayed there, I would stay in one of my children’s rooms.  It was not a very regular thing, it was just once here and once there, once in a blue moon.  In 1997 my daughter was doing her TEE and I think - and in 96 my son was doing his TEE, and we separated in 1995 and it did affect the children and they needed me to be able to tutor them more then that if I was living at the house the whole time.

My ex-wife’s second language was English and she is an intelligent woman, but some people are good at doing different jobs and one of the things that my ex-wife was just not any good at was teaching.  I have a little bit of a flair in that area in that I am able to pass on knowledge to the children and get them to concentrate and go step through step, and that sort of thing.

HIS HONOUR:   As far as I am concerned, you do not have to explain to me your visiting your children.

MR HOLLAND:   Thank you, sir.

HIS HONOUR:   I would think it would be a shocking thing if you could not visit your children, nor staying overnight if it is 120 kilometres.  But this was only one ingredient that led the Tribunal to think that you were trying to have it both ways, basically.  That was the conclusion they came to.

MR HOLLAND:   That was the conclusion that they wanted to come to, and that was the conclusion that they had already decided they were going to come to, sir.  That is the impression that I got the whole time.

HIS HONOUR:   You say that, but I cannot act on an assertion like that.  I have to have a basis in which I could consider that the Full Court might reach that conclusion and when you look at the reasons of the Tribunal, it is just another decision of this Tribunal, it is nothing unusual, except that it does seem to show a degree of suspicion of you but that, I suppose, may be borne of a greater experience of these cases where people enter fraudulent relationships or false relationships.  Your subsequent marriage of your wife rather suggests that yours is not, and never was, such a relationship.

MR HOLLAND:    That is correct, sir.

HIS HONOUR:   That does not necessarily mean that the Tribunal was unable to reach the conclusion that it did on the evidence that it had at the time.

MR HOLLAND:    As you said, sir, there seemed to be lots of investigations about us to try and satisfy the thirst for the suspicion of the Tribunal and I maintain, as you said yourself, that you thought that we had passed the test, that we were both genuine ‑ ‑ ‑

HIS HONOUR:   That is not the test for me today.  If this was an appeal from the Tribunal to me on the merits, you would win.  But it is not what the nature of this case is.

MR HOLLAND:    But the Tribunal failed us, sir.  As far as getting on with this offshore business visa, sir, with respect, what the respondent’s counsel has said is just in complete contradiction to what my own investigations have found out and we were told that it would take 12 to 18 months if we applied offshore and maybe we would be successful.

HIS HONOUR:   Mr Tsaknis has told me it would be dealt with promptly.  That is at least what I understood to be the case.

MR HOLLAND:    Well, all I can say, sir, is that I thought there was going to be justice in this Tribunal.  There was no justice in that Tribunal.  This offshore visa being dealt with quickly:  it will not be dealt with quickly.  DIMA has no intention of dealing with any of our applications quickly.  If our application was going to be dealt with fairly and quickly, Winnie the Pooh could have worked out at any stage that we were a devoted and exclusive couple.  Winnie the Pooh could have worked that out but no one in DIMA could.

HIS HONOUR:   Yes, but DIMA also worked out that you perhaps could have secured the divorce in the marriage earlier and a lot of these problems would not then have been available to the Tribunal.  That would have been a public affirmation of the exclusive relationship.

MR HOLLAND:    With the timing structure at the time, sir, I was more concerned in getting my children through their TEE examinations than putting more stress under them with their mother being upset with a divorce, and this and that, and everything else.  I do not think it would have been fair to my children to take those steps.  At that time I made the decision that the steps that should be taken in the first instance should be steps that are making a clear indication as to my intentions and at the same time any steps that I take to benefit the children, for example, transferring my share of the ownership of the property, the family home, into my ex‑wife’s name where my children were living, was benefiting my children.  So I was prepared to do that.

I was not prepared to initiate proceedings for a divorce at that time where I just had one son who had completed his TEE in 1996 and he was supposed to be getting much higher marks than he did but because of all the stress and everything else, he fell flat on his face and he only just got into university by the skin of his teeth.  In 1997 I made the commitment to myself that my daughter was not going to fall flat on her face as well and I was not going to put any more stress on her at that point in time with regards to the matrimonial breakdown.  As it turned out, she qualified for university as well.

But my son, in 1996, gave myself and my ex‑wife, and my parents, all of us, a huge scare with his result because he should have been getting 350 to 380 and he came in with 250, or something like that.  The only reason he got into university at that stage was because all of these overseas students had stopped coming and the universities were desperate for places and then they got down to my son’s result and decided to take him.

KIRBY J:   He will probably come good, so I think that is all behind him now.  But, anyway, is there anything else that you want to say on ‑ ‑ ‑

MR HOLLAND:    There is one other matter, sir, that has not been covered and our independent investigations have discovered that there is one further course of action for us but it all depends on the Minister going along with it.  Our understanding is that the Minister has a committee, for want of a better term - it is not the right term but it has a name, but it is something along the lines of a “Minister’s immigration application review committee” - and my

understanding is that we would be eligible to be able to apply to be considered by this committee.  The other thing, sir, is the current Minister may not be the Minister of Immigration in another three weeks’ time and we may be dealing with another person.

HIS HONOUR:   Yes, well, that is irrelevant.  You will have a right to pursue whatever representations you want to make to the then Minister for Immigration and Multicultural Affairs, but that is not my concern, that is between you and the Minister.  All I can look at is the legalities, you see.  Is there anything else that you or your wife wish to say?

MR HOLLAND:    No, sir.

HIS HONOUR:   Is there anything else you wish to say, Mrs Holland?

MRS HOLLAND:    No, your Honour, thank you.

HIS HONOUR:   Thank you, very much.  Mr Tsaknis, what do you have to say about the suggestion that there would be a great delay of 18 months?  That would be of real concern to me if that were the case.

MR TSAKNIS:   Yes, all I have been told is that it would be dealt with promptly, your Honour.

HIS HONOUR:   What does “promptly” mean, do you know?  Or can you have instructions on what “promptly” means, because it is not uncommon in Asia for expatriates who live in an Asian country to have to go offshore and make an application.  People who live in Thailand, for example, do it all the time.  They fly down to Penang; they get a visa and they return to Thailand.  Quite a lot of expatriates live in Thailand on that arrangement and I have no doubt it is so in many Asian countries, but it is a very quick turnaround.  The notion that a married couple would be separated for 18 months would be a very unfortunate one if it were the case.

MR TSAKNIS:   Can I perhaps get some instructions from my instructors, your Honour?

HIS HONOUR:   Yes.

MR TSAKNIS:   My instructions are, your Honour, that they would be very surprised if it took longer than six months to have the application determined.  Also the fact that the applicants are in Australia at the moment, at least they ought to be able to make some administrative inquiries about letting them know the application is coming, finding out how to get it exactly right when it is lodged over there.  Those sorts of things can slow

down applications enormously.  I was instructed that six months - it would be surprising if more than six months ‑ ‑ ‑

HIS HONOUR:   Even six months separation ‑ ‑ ‑

MR TSAKNIS:   It sounds a long time to me, too, your Honour ‑ ‑ ‑

HIS HONOUR:   It is a long time.

MR TSAKNIS:   I would have thought it would only take, you know, to be less time than that, given perhaps ‑ ‑ ‑

HIS HONOUR:   There is a rich seam of material for a story in this case.  Many Australian citizens, if they read it, would find it hard to believe, I fear.  However, thank you, very much.  I will excuse the officers of the Court if they wish to be excused because there is no need for them to stay, or the guard, there is no need for him to stay.  I do not think we are going to have any need for protection.

HIS HONOUR:   These proceedings arise under the Migration Act 1958 (Cth) (“the Act”). They have been before me on several occasions, first by video link to Canberra and now in a hearing in Perth. It is necessary and desirable to bring them to conclusion.

An application for a spouse visa is rejected

Mrs Arinah Holland (“the applicant”) seeks an order nisi for the constitutional writ of prohibition and a writ of certiorari directed to the Minister for Immigration and Multicultural Affairs (“the Minister”) and Ms Rahima Bannerman and the Immigration Review Tribunal (“the Tribunal”).  The writs are sought to quash a decision of the Tribunal, constituted by Ms Bannerman on 27 August 1998, affirming an earlier decision by a delegate of the Minister.  That determination had, in turn, decided that the applicant, then known as Arinah Lamat, did not meet the criteria for a Subclass 820 (Spouse) visa.  That visa is known as a General Residence (Class AS) visa.  If applicable, it would have enabled the applicant to be considered under various visa subclasses, including Subclass 801 (Spouse).  The application, as lodged, was in respect of that category.  The applicant claimed a relevant relationship with an Australian citizen, Mr Richard Holland.

The applicant had originally applied for a visa on 27 September 1996. Her application was refused on 10 November 1997. It was refused on the basis that the applicant did not satisfy the definition of “spouse” set out in Regulation 1.15A of the Migration Regulations made under the Act (“the Regulations”). Put shortly, it was found that, although the applicant and Mr Holland had a long‑standing personal relationship, it was not one which fulfilled the legal requirement of the Regulations, namely that of a lawful marriage or a de facto married relationship, involving a commitment to a shared life to the exclusion of all others.

The Tribunal rejected the application to it.  The applicant is therefore liable to removal from Australia as a non-citizen without a valid visa entitling her to remain in this country.  So far, the case as described is unremarkable.  However, it is necessary to mention a number of complications.

Approach and factual complications

I remind myself at the outset of the fact that the constitutional writs, such as prohibition, sought by the applicant, are cardinal features of the arrangements under the Constitution to ensure that all officers of the Commonwealth, such as the respondents to this application, conform to the jurisdiction and powers that are accorded to them by the law of this country; that the constitutional remedies and the writ of certiorari sought to perfect constitutional relief are discretionary in character, although prohibition will usually be granted if the grounds for doing so are made out; and that to secure an order nisi (which is all that the applicant seeks at this stage) she has only to establish a reasonably arguable case that ought to be heard by the Court.

The Tribunal and Ms Bannerman have submitted to the orders of this Court.  The Minister has appeared to contest the grant of relief.  The applicant is unrepresented.  However, she has been accompanied at all hearings by Mr Richard Holland.  On this hearing she has also had the support of Mr Harold Holland, father of Mr Richard Holland.  There was no contest that Mr Richard Holland is an Australian citizen.  He was born in the United Kingdom in October 1956.  He migrated to Australia in September 1969.  He became an Australian citizen on 12 September 1996, ie, shortly before the applicant lodged her application for the visa which is the subject of these proceedings.

I now turn to the factual complications.  The applicant arrived in Australia on 26 January 1989 as a student on a visa appropriate for that purpose (Subclass 560, Student visa).  Subsequently, she departed and returned to Australia on 5 January 1990 on a further visa of the same class.  She has not left Australia since that time.  In 1996, the fact that the applicant had overstayed her student visa came to the notice of the Minister.  She was granted a bridging visa E and she set in train the steps to regularise her position that ultimately brings the matter to this Court.

According to the evidence that was before the Tribunal, as recounted in its reasons, the applicant met Mr Richard Holland on 22 January 1990.  They formed a close friendship.  According to the applicant, they began living together on 25 December 1995.  According to both the applicant and Mr Holland, the couple recognised Mr Holland’s continuing obligations to the two children of his marriage to his then wife, Mrs Fallilah Holland.  That marriage had been solemnised in 1978 according to the Islamic religion.  Mr Holland and the applicant agreed that, until the children had grown up, Mr Holland, would, from time to time, return to his former matrimonial home and attend to the education and welfare of the children.  The home in which the children and Mrs Fallilah Holland lived was 120 kilometres from the place where the applicant and Mr Holland had established their home.  This fact necessitated his staying overnight on the occasion of his visits.

Mr Holland did return to his former home on occasions.  Nevertheless, both the applicant and Mr Holland asserted before the Tribunal, and have done so throughout these proceedings, that they were living in an exclusive de facto married relationship, with a joint commitment one to the other.  According to the Tribunal, and perhaps not unnaturally, Mrs Fallilah Holland was upset by her husband’s relationship with the applicant.  The Tribunal found that Mrs Fallilah Holland acted “like a woman scorned”.  Whilst the applicant’s proceedings were before the Tribunal, Mrs Fallilah Holland sent a facsimile to the Department of Immigration and Multicultural Affairs (“the Department”).  That facsimile was placed before the Tribunal and is now before me.  It reads:

To Immigration Department . . . 

Further to the immigration review re alleged de facto Arinah Lamat.

My lawful husband has been cohabitating [sic] with me practically every other week therefore Miss Lamat cannot possibly be regarded as a de facto wife according to immigration rules (ie to the exclusion of all others).

I cannot possibly endure this situation any longer I am receiving no support from my husband Richard Holland I am to understand that he is near to bankruptcy and it is doubtful if he can support Miss Lamat.

I understand the review is for the 6th May I have faxed this due to the short time available to bring further true statements forward, I am prepared to supply sworn statutory declaration if you so desire.

At first, Mr Holland held back from taking steps to remove the danger to the applicant’s migration status by legally terminating his marriage to Mrs Fallilah Holland and marrying the applicant according to Australian law.  He explained that he did this out of consideration for his children, who were then at a vulnerable stage of their development and education.

A second Islamic “marriage” is entered

Instead, on 24 March 1992, the applicant and Mr Holland were married before two witnesses by a religious officer of the Islamic faith.  The applicant is an adherent to Islam.  Mr Holland has also converted to Islam after his marriage to Mrs Fallilah Holland.  It may be that as between the applicant and Mr Holland, and in accordance with the tenets of Islam, from that date the couple were regarded as husband and wife and duly married.  However, as the marriage to Mrs Fallilah Holland was subsisting at the time of the “marriage” in 1992, the applicant could not, according to Australian law, be treated as lawfully married to the applicant.  His second marriage was polygamous.

Before the Tribunal an argument was mounted to the effect that the Regulation definition of “marriage” was broad enough to include the form of marriage entered in 1992 between the applicant and Mr Holland.  The Tribunal correctly rejected this argument.  It stated that so to hold would be “tantamount to the Tribunal endorsing a polygamous marriage”.  With respect, this was not the question before the Tribunal.  The issue was not one of endorsement or disendorsement, approval or disapproval.  The only question was whether, within the Australian regulation, when it used the word “marriage”, that word connoted a marriage of the kind that Mr Holland had formed with the applicant or only a marriage that accorded with Australian law.

Especially in the context of the Regulations, the latter is the only meaning that the Regulations could bear. It follows that the “marriage” of 1992 between the applicant and Mr Holland did not avail the applicant so far as the Regulations were concerned. To succeed before the Tribunal the applicant therefore had to establish that she and Mr Holland, at the time of the application, were two persons domiciled in Australia, over the age of 18 years, of the opposite sex who “have a mutual commitment to a shared life to the exclusion of all others” and lived in a relationship which was “genuine and continuing” although not married to each other: see Migration Regulations 1.15A(1)(b).

The adverse findings of the Tribunal

The Tribunal heard evidence, which it described in its reasons given by Ms Bannerman. Before the Tribunal, the focus of the contest was upon the status of the continuing relationship between Mr Holland and Mrs Fallilah Holland, that being relevant to the requirement of the Regulations of exclusivity of the relationship. The Tribunal complained about Mr Holland’s “unhelpfulness” and “the great deal of inconvenience which it had experienced in establishing the facts”. These were matters which, it said, were “curious” given Mr Holland’s apparent support for the applicant in the proceedings before the Tribunal.

The Tribunal went into a great deal of detail about the shared bank account and assets belonging to the applicant and Mrs Fallilah Holland.  It was not remarkable, in my view, that links should have remained between the applicant and Mrs Fallilah Holland.  Indeed, with shared children, it would have been extraordinary if there were not still links of a familiar, business and even affectionate kind between parties to such a failed marriage.

To some extent the search upon which the Tribunal embarked may have been prompted by the rigidity of the applicable definition in the Regulations requiring that the relationship, in order to be relevant to the visa application, had to be “to the exclusion of all others”. Modern relationships exist, including many Australian marriages of great strength and durability, which might not meet that criterion. However, on any view, the Regulation criterion is not concerned with the exclusion of all contact with other persons with whom there may have been an earlier marriage or relationship, or with the children of such a marriage or relationship, but with the mutual commitment of the couple concerned to a shared life with each other.

However that may be, the Tribunal regarded the evidence on exclusivity as conflicting.  It found that Mrs Fallilah Holland’s evidence had been “largely motivated” by self interest and malice and therefore treats it with caution.  It referred to various evidentiary indications pointing in different directions.  The Tribunal then came to two crucial passages in its reasons.  It said: 

Throughout these proceedings both the Department and this Tribunal have expended a great deal of effort and stretched limited resources investigating this matter.  Neither the Applicant nor Mr Holland have co‑operated in this process; in fact they actively impeded it.  Mr Holland’s demeanour before the Tribunal alternated between rudeness, aggression and contempt.  It would appear that adherence to the laws of this country has never been of high priority to him.  He has made a false statement in the application form by stating that he and the Applicant lived at 82 Telfer Crescent, Stirling when in fact he did not live there.  His entering into a second marriage without dissolving his first is a bigamous act under Australian law, a matter he was well aware of.  His feigned ignorance of legal and financial issues is at odds with the fact that his employment involves complex financial matters requiring a knowledge of laws of other countries.  The Department may well wish to take these matters further.  The Tribunal finds that Mr Holland’s reluctance to assist the Tribunal with it’s [sic] inquiries bordered upon obstruction and the Section 86 property settlement should be further investigated.  It goes without saying that the Tribunal did not find him to be a credible witness.

The Tribunal went on:

However the Tribunal does recognise that the Applicant is largely the innocent party in this matter.  She presented as an intelligent, educated and articulate woman with a good command of English.  Had she not entered into a relationship with Mr Holland in 1990, she would doubtlessly have established eligibility for a permanent visa of another class well before now.  It is curious why she did not do so, choosing instead to absorb herself into the community in full awareness of her unlawful status.  Mr Holland for reasons of his own, does not appear to have encouraged or assisted her regularise her status in Australia.  Having the Applicant work in his business for what in effect was her food and keep and not paying her a proper wage, invites a finding that in addition to any other criticism made of him by the Tribunal, he also exploited her.  Mr Holland’s primary concern throughout this matter has been for his own welfare, and not that of the Applicant.

In the result, on the evidence, the Tribunal decided that the applicant had not satisfied it that the Regulation definition of “spouse” was applicable to her relationship with Mr Holland or, more accurately, his relationship with her.  Accordingly, it concluded that the applicant was not entitled to the visa that she had sought.  The primary decision was, therefore, affirmed.

There were two relevant sequels to this decision which was made on 27 August 1998.  First, on 22 September 1998 the applicant, together with Mr Holland, wrote to the Minister asking him to “reverse” the decision and to exercise his powers to allow the couple to continue to live in Australia “as husband and wife exclusively”.  This letter enclosed divorce papers that had by then been filed as between Mr Holland and Mrs Fallilah Holland.  However, the Minister declined to interfere.

In April 1989, the marriage between Mr Holland and Mrs Fallilah Holland was dissolved.  On 22 April 2000 Mr Holland married the applicant.  He claims now to fulfil all of the criteria to act as sponsor for his now wife to obtain a permanent residency visa.  He informed the Department of Immigration and Multicultural Affairs of these developments.  However, he was informed by the Department that it would be necessary for the applicant, although now Mr Holland’s wife, to make an application for a visa offshore, ie, in a country other than Australia.  The couple were told that they could not make another application onshore for a visa, whilst the decision of the Tribunal stood in the way rejecting that application.  An offshore visa would take many months, perhaps even longer to process.

Jurisdictional error and merits review

This then was the position between the parties when the application first came before me by video link from Perth to Canberra.  Affidavits were filed on behalf of the applicant seeking to support the order nisi for which she applied on the footing that, as subsequent events had proved, the Tribunal had made a factual error in finding that the couple did not have a committed exclusive relationship at the time of the application. 

I sought to explain to the applicant and Mr Holland the distinction between errors of jurisdiction and errors within jurisdiction.  This is not an easy distinction to explain to lawyers, still less non lawyers.  Judges have made attempts and not all of them have been convincing.  In England, the distinction has been abolished by the courts.  I too would abolish the distinction, at least so far as the constitutional writs are concerned, and hold that they are available to redress established errors of law.  However, that does not represent the present doctrine of this Court which I am obliged to apply at this stage of the current proceedings.

Any mistake which the Tribunal might have made in evaluating the evidence relevant to the relationship between the applicant and Mr Holland would, by this criterion, be an error made within jurisdiction.  Moreover, even if a wider criterion of error of law were adopted, any error made by the Tribunal in this case would seem to involve no more than an error of fact.  Upon this basis, the principal argument of the applicant against the decision of the Tribunal did not authorise me to grant the order nisi sought by the applicant.  It did not establish a reasonably arguable case for the provision of constitutional relief.

I make it plain that, if this had been an appeal to this Court on its merits, at least on the evidence before me, I would have upheld the appeal.  I would have found, on the evidence, that the applicant and Mr Holland have now and have at all times in the hearing before the Tribunal and before me met the requirements of the Regulation definition to warrant the grant of a spouse visa.  However, that is not the consideration which is before me.  On no view are the constitutional writs equivalent to a full appeal on the merits.  It would be wrong for me to approach the matter on that footing.

Natural justice and procedural fairness

When I apprehended this difficulty, I asked counsel for the Minister whether, in the events that had occurred since the Tribunal’s decision, it was possible once again to enliven any residual discretion of the Minister to permit the applicant and her husband, now lawfully married, to proceed with a fresh application in Australia for a spouse visa.  I was informed that no such power existed in the Minister.  I therefore explored whether the applicant’s expressed complaints about the process before the Tribunal amounted to a foundation for a different basis for the relief sought, namely for a breach of the rules of natural justice or procedural fairness.  Under current doctrine such an error, if it could be established, would amount to jurisdictional error.  It would thus possibly give rise to a foundation for relief of the type claimed.  It would therefore justify the issue of an order nisi.

When asked to explain the complaints he made about the Tribunal’s procedures, Mr Holland complained about the dress of the Tribunal member which he suggested was offensive to a Muslim woman like the applicant.  He suggested that the Tribunal member had herself reacted adversely to the applicant’s dress.  I rejected this suggestion as unprofitable of exploration.  The applicant is dressed in conventional conservative Muslim dress proper to an Islamic woman in some communities.  There may be Australians who find that mode of dress offensive to them.  However, in our diverse and multicultural society we must all adjust our threshold of resentment about points of difference in matters such as dress.  The suggestion that there was any injustice to the applicant, based on considerations such as this, is without any evidentiary foundation.  I would reject it.

Unfortunately, the record of the proceedings before the Tribunal was either never transcribed or the transcript has been mislaid by the Department.  No sound recording of the proceedings could be found.  In these circumstances, as I explained to the applicant, the only way in which what had occurred before the Tribunal could be proved before this Court was by affidavit evidence.  I therefore allowed the applicant an adjournment to place such evidence before the Court during its sittings in Perth.

Without relevant objection on the part of the Minister, the applicant and Mr Holland tendered a number of affidavits which were read before the Court today.  Those affidavits deposed as follows:

The applicant deposed, once again, to the facts of her relationship with Mr Holland.  She maintained that the “allegation” by the Tribunal that she and Mr Holland were not living together in an exclusive relationship after 25 December 1995 was “incorrect” and based on “biased and untruthful testimonial [sic] from . . . Fallilah Holland and not facts”.

As explained earlier, without more, this assertion would not provide a basis for intervention by this Court.  The applicant complained about the reliance by the Tribunal on Mrs Fallilah Holland’s evidence, although she had not appeared to give oral testimony.  The applicant said that the Tribunal should have preferred the testimony of the witnesses who gave oral evidence.  This too involves no jurisdictional error.  In any case, the Tribunal expressly discounted the evidence of Mrs Fallilah Holland.  It based its decision on a balance of the evidence which it believed.

Mr Richard Holland, in his affidavit, suggested that the Tribunal had twisted his evidence and erred in reporting him as rude and unco‑operative. Mr Holland was at no time rude before me.  He states that before the Tribunal he was polite at all times.  Mr Holland complains that the Tribunal was unduly suspicious about his evidence.  He relied on the divorce from his first wife in April 1999 as demonstrating that the Tribunal had shown bias against him and the applicant.  However, as a matter of law, this is not correct.  Error, if that it be, is not proof of bias.

Mr Harold Holland deposed that he had always been supportive of his son and the applicant.  He confirmed that “a couple of times over two years” his son had returned to his former matrimonial home to take care of the children during their examinations.  He and his wife had lent the applicant and Mr Holland a deposit for their new home.  These facts tend to reinforce a conclusion that the Tribunal may have misjudged the evidence of Mr Harold Holland and the true nature of the relationship between Mr Holland and Mrs Fallilah Holland at the time of the application before it.  However, they do not of themselves establish bias or procedural unfairness at the time of the Tribunal’s decision.

Mr William Sykes was a witness at the Tribunal hearing.  He gave evidence, by his affidavit, about his perceptions of the relationship between the applicant and Mr Holland.  He deposed to the fact that the two are “a genuine and committed couple”.  This too does not show jurisdictional error in the Tribunal’s decision.  Mr Paul King gave evidence that he too was a witness of the Tribunal hearing.  He had rented a house to Mr Holland when Mr Holland had lived there with the applicant after 1997.  He assumed that they were a married couple.  He confirmed that they were still living together in an exclusive relationship.  But this also falls short of showing jurisdictional error on the part of the Tribunal at the time of its original decision.

Conclusion:  no jurisdictional error is shown

It follows that no evidentiary basis is established by the applicant to found a reasonably arguable case for a complaint of jurisdictional error on the part of the Tribunal when it reached its conclusion.  No such basis is shown on the record, at least if the Tribunal’s reasons, in default of a transcript, constitute the record before this Court.  Nor is jurisdictional error shown, whether for breach of the requirements of natural justice or otherwise, in the evidence about the proceedings that was read today.

If, as I am inclined to think, there may have been an error of fact and of evaluation of the evidence by the Tribunal, it was one made within the Tribunal’s jurisdiction. The law allows tribunals to make such errors, subject to any procedures of appeal that exist, none of which are relevant in this Court. In the present state of the law, the Constitution only permits this Court to intervene if the applicant shows that the Tribunal made an error of jurisdiction as, for example, by misunderstanding or misexercising its jurisdiction or exercising it in a biased and unfair way. None of those errors is made out.

It follows that, whilst I do think that there may have been an element of tension in the relationship between Mr Holland and the Tribunal, this has not been shown to constitute a breach of the requirements of natural justice or of the law of bias prejudicing the applicant.  The subsequent divorce and marriage of the couple, established by the evidence, tend to show that the Tribunal may have been wrong in its assessment of the character and mutual commitment and exclusivity of the relationship between the applicant and Mr Holland.  But they do not show that, on the evidence before the Tribunal, it erred in the exercise of its jurisdiction in concluding to the contrary.

I cannot therefore help the applicant by issuing the order nisi which she seeks. If it were within my power to do so, I would grant her request. She clearly is personally innocent of any default in the applicable Regulation. It was fully accepted for the Minister that, so far as the applicant was concerned, she was at all times in an exclusive relationship with Mr Holland. I fear that she may have suffered a substantive injustice. However, if she has, it is not one that this Court can cure. It may be one that a proper and prompt administration of the Act by the Minister and his Department, after this decision, will lead to a speedy cure. But this expression is based more on hope than on experience.

Orders:  application dismissed

The application for an order nisi is therefore refused.  Is there any application for costs?

MR TSAKNIS:   Yes, your Honour, the Minister seeks costs of the application.

HIS HONOUR:   Is there any reason why the costs should not be ordered?  Normally in Australia if you bring an application and you lose it, you have to pay the costs?  If you had won it, I would have ordered the costs or the costs would in due course have come with the victor; that is the rule we observe in our courts.  Is there any reason why the costs should not be ordered against you?

MRS HOLLAND:   Yes, your Honour.  I have not got a job; I am not covered with Medicare; I am not even covered by social security.  I am totally depending on Richard Holland for everything.  How could I afford to pay this bill?

HIS HONOUR:   Well, that may be so.  There is a difference between actually being able to recover the costs and the Court ordering the costs. Whether, in all the circumstances, the costs would be recovered or recoverable from you is a practical question but so far as the formal order of the Court is concerned, I can see no reason why the normal order should not be made.  So the application is dismissed.  The applicant must pay the Minister’s costs.  I certify for counsel.

I hope that the remarks that I made at the end of my reasons will be drawn to the attention of the Department.  A six-month delay in considering an offshore application would seem to me, as between a married couple who have gone through what the applicant and Mr Holland have gone through, would be very unfair to Mrs Holland.  I think that ought to be brought to the notice of the Department.  Of course, any application that you, Mrs Holland, decide to make, if you can, to the Minister, is a matter for you.  It is not a matter on which this Court can say anything.  That is between you and the Minister.

MRS HOLLAND:   Can I have my last word, your Honour?  Where I come from there is no justice in that country.  I mean, you cannot speak, but you know where you stand in the country.  After coming to Australia by speaking out and be free to speak, there is some sort of justice or democracy, but without prejudice or without – I am not offending anyone in this room.  It is just I have to speak this out and tell you there is no such thing as democracy, there is no such thing as justice in this country.  I wish I have never been into this country and had never met ‑ ‑ ‑

HIS HONOUR:   I can understand that you are very upset and I do not think there is any reason for this to be placed on the record; it might subsequently not be helpful to you.

MRS HOLLAND:   Thank you, your Honour.

HIS HONOUR:   There is democracy in Australia and there is justice, but it is justice according to law.  The Court will now adjourn.

AT 1.27 PM THE MATTER WAS CONCLUDED