Holland, Ex parte - Re MIMA

[2001] HCATrans 359

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

FROM PERTH BY VIDEO LINK TO CANBERRA

ON MONDAY, 8 OCTOBER 2001, AT 4.03 PM

Copyright in the High Court of Australia

MRS A. HOLLAND appeared in person.

MR L.A. TSAKNIS:  May it please the Court, I appear for the first respondent, the Minister, your Honour.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Thank you, Mr Tsaknis.  Is there a certificate in relation to the second and third respondents?  Do we have any information?  I am informed by the Deputy Registrar that the second and third respondents submit to the orders of this Court save as to costs.  They are excused.  Now, Mrs Holland, you appear for yourself, is that correct?

MRS HOLLAND:   Yes, your Honour.

HIS HONOUR:   Yes, very well.  First of all, I think you have an affidavit which is an affidavit sworn 27 March 2001, is that correct, with a lot of annexures?  The date is on page 7.

MRS HOLLAND:    Yes, your Honour.

HIS HONOUR:   So that is the affidavit that you read in support of your application?

MRS HOLLAND:    Yes, your Honour.

HIS HONOUR:   Very well.  Do you read any other affidavits?  Have you any other affidavits that you wish to read in these proceedings?

MRS HOLLAND:   No, your Honour.

HIS HONOUR:   You will have to speak into the microphone.  I cannot hear you, I am afraid.

MRS HOLLAND:    No, your Honour.

HIS HONOUR:   Very well, thank you.  Now, Mr Tsaknis, you have received a copy of the affidavit of 27 March 2001?

MR TSAKNIS:   Yes, I have, your Honour.

HIS HONOUR:   Do you have any objections to any of the paragraphs in the affidavit?

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

HIS HONOUR:   Do you wish to cross‑examine Mrs Holland in relation to those paragraphs?

MR TSAKNIS:   No, your Honour.  We are prepared to accept the material in the affidavits for the purposes of this proceeding.

HIS HONOUR:   Very well, thank you.  Mrs Holland, does that, therefore, constitute your case in support of your application?  You have no further evidence of other parties to tender to the Court?

MRS HOLLAND:   Your Honour, could you let my husband, Mr Richard Holland, speak on my behalf?

HIS HONOUR:   Well, he can speak, but I am trying to establish at this stage the evidence that is going to be relied upon.  Is there any evidence other than the affidavit which is dated 27 March, which you have indicated you wish to read, any other factual material?

MRS HOLLAND:   No more evidence, your Honour.

HIS HONOUR:   Thank you very much.  Well, you may just sit down for the moment.  Mr Tsaknis, does the Minister have any evidence that he wishes to place before the Court?

MR TSAKNIS:   No, your Honour.  The Minister does not.

HIS HONOUR:   Thank you.  Very well.  Now, Mrs Holland, you want your husband to speak to the Court.  Is that correct?

MRS HOLLAND:   That is correct, your Honour.

HIS HONOUR:   Yes.  Do you have any objection to that course, Mr Tsaknis?

MR TSAKNIS:   No, your Honour.

HIS HONOUR:   Very well.  Well, you may speak on behalf of the applicant, Mr Holland.  What do you wish to say?  What is your full name?  Would you give me your name and your address, if you would?

MR R.J.F. HOLLAND:   Yes.  My full name is Richard John Fulton, spelt F‑U‑L‑T‑O‑N, and then my surname is Holland, as in country.

HIS HONOUR:   Yes, what is your address?

MR HOLLAND:   My address, sir, is Lot 92 George Street, Bolgart, B‑O‑L‑G‑A‑R‑T, Western Australia, 6568.

HIS HONOUR:   Yes, very well.  I think it is more appropriate that you should sit down rather than bending over.  Are you sure you are speaking into the correct microphone?  Is the microphone with the sound to me the small microphone on the bench, or is it the elevated microphone?

MR HOLLAND:   It is the disc-type microphone, sir, on the desk in front of me.

HIS HONOUR:   Yes, but there are two, I can see another one, an elevated microphone which I would have thought is the one that you are speaking into, is that - - -

MR HOLLAND:   Testing.  This one here, sir.

HIS HONOUR:   Very well, I can hear you so you can continue to stand up and just speak to me and that will pick up your voice.  Yes, well what do you have to say?

MR HOLLAND:   First of all, sir, I would like to say that both my wife and I have been struck with profound amazement at how we cannot seem to obtain any justice with regards to ascertaining that we are a genuine husband and wife couple.  I would like to submit to the Court that the fact that though we are restrained by finances in taking this action, we have, nevertheless, taken this action together, and as a married couple being able to just get this far I think that demonstrates that we must be quite close, and ‑ ‑ ‑

HIS HONOUR:   I realise all that but, you see, you have engaged a particular legal procedure, and the legal procedure that you have engaged is seeking one of the constitutional writs of prohibition directed to the respondents, including the Minister, and a writ of certiorari, which is designed to quash the decision of the Tribunal.  Therefore, I have to conform to the law, as you would appreciate.  I cannot just wave a magic wand which cures all the problems in the way of your wife being admitted to this country as your wife, because what has to be done is to look backwards in time to the time when the delegate made the decision and the Tribunal confirmed it.  It is not a question of looking now at the status your wife has.  She may have some other different and better entitlements now to receive the necessary visa to stay in Australia as your wife.  That is not the question.  The question is whether at the time the delegate and the Tribunal

made their decisions, they acted in a way that took them outside their jurisdiction on the material that was then before them.

May I ask you:  have you made an application, in the light of the supervening facts of your wife’s marriage to you, to secure some other relief from the Minister?  Is this still a live issue or am I dealing with an academic problem?

MR HOLLAND:   You are dealing, sir, I think, with the last roll of the dice for us.

HIS HONOUR:   Perhaps I might, just for my own enlightenment, ask Mr Tsaknis a few questions and then I will hear what you have to say.  If you would just sit down for a moment.  Mr Tsaknis, on the face of things, it seems to me that the applicant has very great difficulties in establishing a basis for a constitutional writ and for certiorari in respect of what the Tribunal and the delegate did at the time they did it.  But since that time, Mr Holland has divorced his first wife, according to Australian law, and, as I understand it, has married, as his second wife, Mrs Holland, the applicant in these proceedings.

Now, does that entitled Mrs Holland, Mr Holland being an Australian citizen, to make any separate, different, other and new application?  I think this was a suggestion that was made at some time, by somebody in these proceedings, that I read somewhere in the - it may have been the Tribunal.  Is that a remedy that is available, that can short circuit these proceedings, or is it not?

MR TSAKNIS:   Well, one says “short circuit”, your Honour, that would be something that would obviously need to be considered on its merits.  I am having a look at the relevant provisions which would entitle the applicant to make an application under section 820.

HIS HONOUR:   People get locked into litigation and sometimes there is a simple way to cut through to the essence of it.  The caravan has moved on since the delegate and the Tribunal considered the matter and, as I understand it, Mr Holland is an undoubted citizen of this country and he has married Mrs Holland, who has been a long-time resident here.  Now, the complications arose because Mrs Holland, before she was Mrs Holland, instead of pursuing other rights that may have been open to her as a long‑time resident, pursued the claim to the visa on the basis of her relationship with Mr Holland, who was not then her husband.

I think it is in that connection that the Tribunal might have said that she might have been better advised to have pursued her rights simply as a long-term resident of Australia but, instead of that, she pursued these other rights.  Now, does the fact that since the decision of the Tribunal, Mr Holland has divorced his first wife and has married Mrs Holland, as she now is, mean that Mrs Holland has any entitlements, as I would have thought a wife of a citizen would ordinarily have, to stay in the country, unless, perhaps, she had a criminal conviction, or something of that kind, which I take it Mrs Holland does not have?  Or unless it was suggested that the relationship was not a bona fide one.  I would think, in the light of everything we know, that there could be little doubt that having gone through the process of divorce, albeit belatedly, and married Mrs Holland, that the bona fides of the relationship might be difficult to question.

MR TSAKNIS:   What I am looking for, your Honour – and I have not found anything to exclude it – is effectively whether a second application can be made given the changed circumstances.  I am aware in refugee applications there is a difficulty, but I am not aware there is a difficulty in this ‑ ‑ ‑

HIS HONOUR:   I do not think it has ever been put on the refugee foundation.

MR TSAKNIS:   No, that is right, your Honour, and I cannot find anything suggesting that is a difficulty in making a second application.  In fact, the first one ‑ ‑ ‑

HIS HONOUR:   But there must be hundreds of people who come to Australia as a tourist, fall in love with somebody and, during a currency of a tourist visa or some other visa or long‑term resident visa, marry the Australian citizen and that raises the question of whether, on that foundation, they can stay in the country so long as they have no criminal conviction and so long as their marriage is not questioned as bona fide.  Now, what I want to know is:  is there some way we can short circuit this in light of the developments that have at last occurred and stand these proceedings over so that Mrs Holland can make such an application and the Minister can consider it?

MR TSAKNIS:   There is a background matter to that, your Honour.  My understanding is an application has been made to the Minister some time ago on changed circumstances and my instructions, as I understand them, are that there is no issue that that has yet been determined.  In other words, there is still an application pending to the Minister under section 338 of the Act.  That is one matter which I ought to bring to your Honour’s attention.

HIS HONOUR:   I am sorry to do this in this informal way, but sometimes it can save a lot of time.

MR TSAKNIS:   Yes.

HIS HONOUR:   Perhaps I could ask Mr Holland what is the status.

MR TSAKNIS:   Yes.

HIS HONOUR:   You do not mind that, do you, Mr Tsaknis?

MR TSAKNIS:   No, your Honour.

HIS HONOUR:   It would seem sensible to get him to tell the Court what he and his wife have done, if anything, in relation to their changed circumstances.  I do not have affidavit material of this, but perhaps you can just tell me, at this stage, what you have done.

MR HOLLAND:   Yes.  We have made an application with the Minister for Immigration in September 1998 for him to review things at the Minister’s discretion.

HIS HONOUR:   But that was before your marriage.  That was before your marriage to your present wife.

MR HOLLAND:   What actually happened, sir, I got married in the time that it was with the Minister and we notified the – we got married in 2000, in April 2000, and the Minister still had ‑ ‑ ‑

HIS HONOUR:   What was the date of your marriage, your second marriage?

MR HOLLAND:    22nd ‑ ‑ ‑

MRS HOLLAND:   24th.

MR HOLLAND:   24 April.

HIS HONOUR:   You will have to learn that date, Mr Holland.

MR HOLLAND:   I am sorry, sir, I have had a very distressing day.  I found a deceased lady in her motor car this morning and that has slowed me down.

HIS HONOUR:   I am sorry to hear that.  Well, you just sit down, take a glass of water and you tell me what you want to say.  It may be easier for

you to sit down and have your papers and tell me what you want to say and then you can consult with your wife.

MR HOLLAND:   Yes, sir.  What I wanted to say was Mr Ruddock was informed of our marriage at the time.

HIS HONOUR:   Yes, but it is one thing – the Minister is a very busy person.  He might be very interested to hear that you have married, but what I want to know is have you sought, on the basis of your second marriage, a fresh application to the Minister on that foundation to provide you with a separate different visa for your wife so that she can stay on the footing that she has married you?  Have you asked for that, or not?

MR HOLLAND:   We have asked and we have been informed that there are no options open to us, sir. 

HIS HONOUR:   Have you got that letter? 

MRS HOLLAND:   No, your Honour.  We believe we have been informed – there are no other options apart from the decision from the Minister of Immigration.  I went into the Department of Immigration every three months and they told me just to wait for the decision on my appeal to stay in this country, but unfortunately, your Honour, as far as it goes, on 29 September 2000, when I walk into DIMA, I was told that my application to stay in this country was rejected and it was sent by a fax to my home address. 

HIS HONOUR:   Do I have the correspondence that referred to your supervening marriage and to the application to the Minister for a visa on that basis, or not?  I do not think that is in the material that you have placed before me, is it?  There is a letter from the Honourable Kay Patterson, it is exhibit AH3, dated 22 December 1998, but that is long before your marriage, so we can ignore that.  We can ignore all of the correspondence until we get to AH7, which is dated 21 December, which appears to be applications under the Freedom of Information Act.  But there does not seem to be any letter after that date from the Minister or the Department which indicates that any application has been made, which has been considered, to review your migration situation in the light of the supervening marriage.  Now, I am not an advisory bureau; I am a judge of the final court of the country, but I have to be helped by you to try to understand where the situation stands. 

MRS HOLLAND:    Your Honour, on 29 September 2000, I went to renew my two‑months visa, bridging visa, with DIMA, and I was told that my application has been rejected by the Minister and I was to remain in

Australia until Friday, 6 October.  As Monday, 2 October was a public holiday, I only had four working days to prepare some sort of legal challenge or to get a one‑way ticket back to Brunei.  Therefore, I went to the Federal Court in Victoria Street in Perth and I filed for a submission in the Federal Court, which was the wrong court I went into.  Finally, I had some legal advice and I was told to go to the High Court, but I was not advised that I can file for another application since I am legally married to Richard Holland, your Honour. 

So although I have been in Australia since this action by – the Minister of Immigration told me to leave the country since 6 October, all I have been going to is the Federal Court and then I have been going to the High Court, but I have not been told my legal rights are that I am able to file for an application under a spouse – section 820, your Honour. 

HIS HONOUR:   You just resume your seat for a moment and I will ask what Mr Tsaknis has to say about all that.

MR TSAKNIS:   Yes, I have tried to come down to the question whether or not a fresh application can be made.  There is nothing in the Act equivalent to the provisions of the refugee provisions which effectively preclude a fresh application, as distinct from re-litigating, it seems to me, the merits of the original refusal, which is what has been happening to date.  That seems to me in a nutshell what the position is.  I tried to have a word with Mr Holland to ascertain whether he was clearly told he could not actually apply for or make a fresh application, as distinct from simply seeking to challenge, as he has been doing so far along the way, the original decision.  I am not clear ‑ ‑ ‑

HIS HONOUR:   Would it be worthwhile standing this matter over to a date later in the week to allow both parties to sort out what, if anything, has been done in respect of, first of all, what the basis under the Act is, or the regulations, to permit somebody who is married to an undoubted Australian citizen and has regularised a long‑term relationship to make an application on that footing.  It would seem ‑ I may be wrong and I know nothing about the Act or the regulations in this regard, but it would seem surprising if there would not be some basis on which a person who has married an Australian citizen, where there is no question as to the bona fides of the marriage and where there is no suggestion of any criminal offence, that that would not enliven the discretion in somebody on that new basis to consider a migration application.

MR TSAKNIS:   With respect, your Honour, yes.

HIS HONOUR:   It must happen all the time, one would think.

MR TSAKNIS:   Yes, your Honour.  We would have no objection to that course.  I must say, from my own view, not that it affects me, I am unavailable until next week after today, but just from a timing point, it seems to me in the substantive application if a proper inquiry is to be made and, indeed, for the applicants’ position to be, I think, clarified, so we know precisely what they have done, what the results have been and what, if any, consideration has been made to this new evidence, then it seems to me, in that respect, we might end up with, perhaps, a different way of going around this case than the formal way which has been put to this Court to date.

HIS HONOUR:   Yes.

MR TSAKNIS:   It might be of some efficacy to the prosecutor in this application in any event and we have no objection to that.

HIS HONOUR:   Yes.You say you would not be available, say, on Thursday of this week?

MR TSAKNIS:   No, I am not, your Honour, unfortunately.  I am tied up for the remainder of this week but I am available all next week.

HIS HONOUR:   Well, next week I am not in Canberra.  That is the only problem.  I would be in Sydney.  Would there be somebody who could be briefed to appear before the Court.

MR TSAKNIS:   I will just check with my instructing solicitor, your Honour.  Yes, my instructors tell me there is a difficulty briefing someone.  They prefer not to do that at this stage, to brief someone else.  So it is only that time constraint which I put before that Court, that time difficulty.

HIS HONOUR:   Well, I think I should try to fit in with you.  What about Wednesday, 17 October?  Does that suit you, Mr Tsaknis?

MR TSAKNIS:   Yes, it does, your Honour.  I can certainly be available then.

HIS HONOUR:   Does that suit you, Mr and Mrs Holland?

MR HOLLAND:   We are available any day, any hour, sir.

HIS HONOUR:   Well, I will be in Sydney but we will seek to establish a video‑link from Sydney to Perth on Wednesday, 17 October at 10 am Perth time.  That will be noon in Sydney, and the Registrar will be in touch with both of you or your interests to indicate the arrangements that are made for the video‑link on that day, 17 October.

But, Mr Holland, it would be essential that you put before the Court an affidavit on your own behalf, or on behalf of the applicant – preferably the latter – setting out in proper evidentiary form exactly what was done to seek some fresh and different and separate consideration of the applicant’s entitlement to a migration visa to Australia on the footing of a supervening marriage to you and it will not be good enough simply for you to be saying things from the Bar table.  It will have to be in an affidavit form.

It will have to be supplied to Mr Tsaknis by the end of this week, or his office, so that the Department will have the chance to consider what is said in that and to take instructions and to put on any affidavit in reply by Tuesday, the 16th, so that I can consider it on 17 October when this matter is re‑listed.  Now, do you understand all that?

MR HOLLAND:   Yes, sir.

HIS HONOUR:   Very well.  I think that the course that I have suggested is a more sensible one because it may mean that there is a way to deal with this case in its substance rather than simply to deal with the application which is before the Court, but if need be I will be ready to deal with the application as it is at the moment or as it is elaborated or changed on Wednesday, 17 October.  Do you have anything else to say, Mr Holland?

MR HOLLAND:   Not at this stage, sir.

HIS HONOUR:   Do you, Mrs Holland, have anything extra to say today?

MRS HOLLAND:   No, your Honour, thank you.

HIS HONOUR:   Very well.  Mr Tsaknis, do you have anything else to say today?

MR TSAKNIS:   Only, of course, your Honour, if something arises between now and the 17th as a result of the evidence that Mr Holland proposes to put on, we will inform your associate if that affects matters.  Other than that, nothing further, your Honour.

HIS HONOUR:   Yes.  You will be fully protected because to some extent this material, if it is relevant, ought to have been filed today and except that Mr and Mrs Holland are not represented I would not ordinarily take the course that I have taken.  But if you both have any written submissions to put before the Court, if they could be faxed to the Court before the morning

of 17 October so that I can read them, that would be helpful to me because I know very little about the Migration Act and virtually nothing about the regulations, but hidden away in their detail may well be some basis upon which a person who is legally in Australia or who is not unlawfully in Australia and marries an Australian citizen has certain rights to remain here, but I just do not know and I will be looking to both parties to help me on that on 17 October.

The orders which I make are: 

(1)  Stand over these proceedings to be continued before me or another Justice of the Court on Wednesday, 17 October 2001, by video-link to Perth at 10 am Perth time on that day; 

(2)  Order that the applicant file any further affidavit upon which she relies in the proceedings and serve the same by 4 pm Perth time on Friday, 12 October 2001;

(3)  Order that the remaining respondent file and serve any affidavit upon which he wishes to rely by 4 pm Perth time on Tuesday, 16 October 2001;

(4)  The costs of the proceedings today will be costs in the application. 

I certify for the attendance at Court today of the legal representative for the Minister. 

I will adjourn now. 

AT 4.33 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 17 OCTOBER 2001