Huynh v MIMIA

[2005] HCATrans 763

[2005] HCATrans 763

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S412 of 2004

B e t w e e n -

XUA THI HUYNH

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Summons

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 14 SEPTEMBER 2005, AT 10.03 AM

Copyright in the High Court of Australia

MR J.A. WATSON:   May it please the Court, I appear for the applicant on the summons.  (instructed by Anne O’Donoghue & Associates)

HIS HONOUR:   Yes, Mr Watson.  You have lost your leader?

MR WATSON:   I have lost my leader, your Honour.

MS D.J. WATSON:   I appear for the respondent, your Honour.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Watson.

MR WATSON:   Your Honour, this is a summons seeking orders that leave to appeal be deemed not abandoned filed on 30 August 2005, relying on two affidavits sworn by Ms Anne O’Donoghue on 30 August 2005 and 1 September 2005. 

HIS HONOUR:   Yes.  Any objection to those?

MS WATSON:   Your Honour, there are some objections.  This is the affidavit of 30 August 2005, paragraph 10 and the words “and made sentencing comments” to the “more favourable to her”.  Essentially it is submission in relation to the effect of the sentence of the Court of Criminal Appeal.

HIS HONOUR:   The sentencing remarks appear somewhere, do they not?

MS WATSON:   They are quoted in the body of the ‑ ‑ ‑

HIS HONOUR:   They can speak for themselves, yes.

MS WATSON:   Yes.

HIS HONOUR:   Yes, that seems a well‑based objection.

MS WATSON:   Paragraph 35, the second sentence, “Despite DIMIA having provided the then Minister”.  Again, there is a submission contained in that paragraph in relation to the status of the information which was before the Minister.

HIS HONOUR:   Yes, so what words do you object to precisely?

MS WATSON:   Precisely the words “incomplete information”.

HIS HONOUR:   I see.  I think that sentence has to come out, Mr Watson, the sentence beginning “Despite” in paragraph 35.

MR WATSON:   Yes, your Honour.

HIS HONOUR:   Yes.

MS WATSON:   Also in paragraph 38, your Honour, the final sentence of that paragraph.  Again, the main complaint is directed towards the words “DIMIA’s mistakes”.

HIS HONOUR:   I cannot see how you can hang on to that, Mr Watson.  The last sentence of paragraph 38 is rejected.  Thank you.

MR WATSON:   Yes, your Honour.

HIS HONOUR:   Now, what is the scope of the delay in this matter?

MR WATSON:   Approximately, your Honour, the deemed abandonment took place on 20 April, or a letter dated that date ‑ ‑ ‑

HIS HONOUR:   Wait a minute.  You move on a summons?

MR WATSON:   Yes, your Honour.  We move on the summons dated 30 August 2005.

HIS HONOUR:   Yes, filed on that date.

MR WATSON:   Does your Honour have an outline of submissions filed by the applicant?

HIS HONOUR:   Yes, I do.

MR WATSON:   Your Honour, that attempts to set something of the chronology of events out, including the delay.  The applicant’s special leave application was filed on 18 October 2004, deemed abandoned on 20 April, and the summons was filed on 30 August 2005. 

HIS HONOUR:   Yes.  There was some toing and froing, to put it neutrally, detailed in paragraphs 12 and following of your submissions.

MR WATSON:   Yes, your Honour.  There is essentially two parts to this.  The first part is that prior to 20 April there was differing advice from senior and junior counsel and junior counsel was working pro bono and some further matters were raised.  The applicant does not speak English.  Instructions are taken through an interpreter.  Frankly, your Honour, it all seems to have become a little overwhelming and in the result no steps were taken to discontinue but the abandonment took effect. 

The immediate consequences of that were not perhaps realised, your Honour, for the circumstances outlined between paragraphs 12 and 16.  In the course of that, steps were taken to see whether there were other avenues available.  In the course of doing that, the applicant was informed that in fact her visa had not been cancelled, she was a permanent resident.  As a result of that, she applied for citizenship.  As a result of that, she turned up on 5 August at DIMIA’s offices.  As a result of that, someone apparently realised that in fact the computer records or something had not been updated and she was promptly arrested.  She was arrested on 5 August.  An application was made in the Federal Court the Saturday because, respectfully, your Honour, she was trying to find out what happened.  She is still in detention.  The Federal Court proceedings are essentially a denial of procedural fairness on a fairly – and we accept this – narrow basis. 

HIS HONOUR:   You rely on the dissenting judgment of Justice Wilcox I suppose?

MR WATSON:   Yes, your Honour.  If it is a convenient time, your Honour, I can take you to the particular matters that in due course, with the benefit of my leader as well, we will be seeking to put in a special leave.  Does your Honour have a copy of the ‑ ‑ ‑

HIS HONOUR:   Yes.

MR WATSON:   A copy for my friend.  If I can just take your Honour to paragraph [46] of Justice Wilcox’s decision.  The first point is, beginning in the third line:

it seems to me, as a matter of principle, that once the decision‑maker selects a particular matter for consideration, he or she is bound to consider that matter properly.

Stage one.  Sorry, your Honour, just for convenience, if I could take you back to a set of propositions which Justice Wilcox considered were agreed.  At [41] there are a set of propositions that Justice Wilcox starts with, and essentially that is consistent also with a majority decision; then comes the line in [46] that I have just read to your Honour and then the conclusion of that sequence is at paragraph [53].  Firstly, you have to consider it properly once you have decided to and whether or not the outcome of that may be a discretionary reason not to issue the constitutional writs.  Now, Justice Wilcox determined that he could not tell whether those sentencing remarks would have affected the decision. 

The decision of the majority, we would contend, your Honour, goes a long way further than those two propositions which we would be seeking to support.  In paragraph [80] of the judgment of the majority their Honours are talking about the judgment of Justice Mason in Peko‑Wallsend and particularly the idea that when a decision is being made it is implicit, if not explicit, that the most recent and accurate information should be used.  Their Honours then say in paragraph [80]:

The factor being considered, to which the material is relevant, must be essential to the exercise of the discretion before any obligation to examine ‑ ‑ ‑

HIS HONOUR:   Sorry, you are reading from paragraph [80]?

MR WATSON:   Yes, your Honour, the second sentence.

HIS HONOUR:   Yes.

MR WATSON:   The view of the majority seems to be that, if it is not an essential aspect of the discretion, the Minister can take into account, on an extreme reading of this, wholly inaccurate information. 

HIS HONOUR:   Yes, you do not have to persuade me at the moment that you will get special leave.

MR WATSON:   Thank you, your Honour.

HIS HONOUR:   You just have to persuade me that there looks to be something that should be looked at by a special leave panel.

MR WATSON:   Yes, your Honour, and this judgment has been referred to in subsequent Federal Court judgments as a case determining the breadth of the discretion the Minister has in relation to section 501(2) decisions.  We say it is an important matter beyond the applicant’s particular position which is in itself, we say – raises a number of very important interests the Court is concerned to protect.  But it goes beyond that because if the majority’s reasoning on this issue is correct, then there really is, at least on one reading, potential for the Minister, and really the department behind the Minister, not to be providing full and complete information to the Minister.  The consequences of that, if it is not reviewable, are wholly resonant of what one might call bad administration. 

So, your Honour, for the reasons set out at the end of the submissions, I am not trying to persuade your Honour that we should get ‑ ‑ ‑

HIS HONOUR:   I think if we got into the business of policing bad administration, we would not ever stop.

MR WATSON:   No, your Honour.  No, we are not going that far, your Honour.  We are saying that Justice Wilcox’s decision was sound in principle.  Those propositions are good.  This case falls within those propositions.  The majority goes a whole lot further.  But, secondly, bearing in mind what your Honour said about not satisfying you that at this point it would get special leave, the circumstances set out in paragraph 18 are those we rely on to get over this hurdle, your Honour, to make those arguments.

HIS HONOUR:   Yes.  Now, am I right in thinking that if you were successful on this summons, you would be staying in the matter?

MR WATSON:   Yes, your Honour.

HIS HONOUR:   How far has the draft summary of argument and draft notice of appeal gone?

MR WATSON:   The orders we seek I think require us to file within 14 days.  If your Honour was to shorten that to seven, then I will make that good.

HIS HONOUR:   No, there is no great utility in making these orders on the summons if the matter does not stay in good legal hands, if I can put it that way.

MR WATSON:   I would not be as presumptuous to say that I would fall into the category, your Honour, but ‑ ‑ ‑

HIS HONOUR:   Well, you can assume that for the moment.

MR WATSON:   And Mr Gageler has accepted it, subject to availability.  He will also be progressing this with me – above me.

HIS HONOUR:   All right.  Yes, Ms Watson.

MS WATSON:   Your Honour, the main issues that the respondent would wish to raise in response to the applicant’s submissions are that in the respondent’s submission there really is no adequate explanation as to what occurred shortly after the decision of the Full Court was handed down.  There is a statement that there was conflicting advice by the counsel who were involved in that matter.  Then there is nothing said until there is a reference to junior counsel who then agreed to act pro bono providing some further advice at around about the time that the deemed abandonment occurred. 

So there is essentially a period of six months which is essentially unexplained in the affidavit of the instructing solicitor.  In our submission, there is nothing raised in the affidavit which explains or gives a good reason as to why there has been that delay and which would found a basis for an order reinstating the special leave application.  The matters which there is some detail of in the affidavit really pertain to matters which occurred after the deemed abandonment occurred.

HIS HONOUR:   Yes, they do, but they are not all that attractive.

MS WATSON:   The are not all that attractive, your Honour, but unfortunately while dealing with officers in the department who are relying on computers to tell them what the status of a particular individual is, it seems ostensibly clear from the legal position that the applicant never held a visa.  One only has to look at the terms of the statute, and in particular the effect of a cancellation which quite clearly was reinstated as a result of the Full Court decision ‑ ‑ ‑

HIS HONOUR:   Yes, I know.

MS WATSON:   ‑ ‑ ‑ that it seems impossible to believe that the solicitors for the applicant could have been under a misapprehension that the applicant held a visa.  Similarly, in relation to the other actions ‑ ‑ ‑

HIS HONOUR:   Well, your systems seem to suggest you were under the misapprehension as well.

MS WATSON:   Well, your Honour, because of the situation that there had been a Federal Court decision setting aside that decision which unfortunately had not been updated to reflect the Full Court position that ‑ ‑ ‑

HIS HONOUR:   Exactly.  There is a systemic problem, I think.

MS WATSON:   Yes, but the solicitors for the applicant having been the solicitors on the record in the Full Court matter could not be under any apprehension as to what the situation was, in our submission.  Furthermore, the other activities which occurred, in particular exhibit C to the affidavit of Ms O’Donoghue of 30 August 2005 which seeks a ministerial intervention pursuant to section 351 of the Migration Act which is a ministerial intervention power in relation to a matter that has been determined by the Migration Review Tribunal, again was a completely inappropriate procedure to adopt. 

Furthermore, it is clear from the Migration Act, and in particular section 501E, that an applicant who remains in the migration zone cannot make an application for a visa once they have been the subject of a cancellation decision under section 501.  So while there seems to be a fair bit of activity, it is completely misguided activity and, in our submission, would only have ever resulted in further delay and pointless exercise as far as the applicant is concerned. 

Despite the fact there has been activity, there really has been no, in our submission, adequate explanation given as to why the application for special leave has not been properly pursued in this matter.  In relation to the decision of the Full Court, I would just briefly wish to take your Honour to the decision of the majority.  While I think my friend took your Honour to paragraph [80], which is in a sense the crux of the majority decision, the majority in the case first of all set out the position of Peko‑Wallsend, identified two matters which ‑ ‑ ‑

HIS HONOUR:   Was that expression “constructive knowledge” actually used in Peko‑Wallsend?

MS WATSON:   It certainly is a case where I think has been elaborated on as being a case where that has been implied constructive knowledge because there was material within the confines of the department at some stage which was not brought to the Minister’s attention.  The other issue is that for the relevant consideration to be essential to the exercise of the discretion – and the majority dealt with that issue at paragraph [76] where on the proper construction of section 501 found that sentencing comments of a judge were not a relevant consideration.  However, more particularly, at paragraph [82] of the judgment the majority made the comment which we would say tends to suggest that this is not an appropriate vehicle for special leave.  In view of the fact that they say:

although it is not necessary in our reasoning to do so, that the respondent’s argument and his Honour’s reasoning contain a critical factual flaw.  If one accepts, contrary to the opinion we have expressed, that it is permissible to treat as a relevant consideration, or as a matter critical to the minister’s decision, the topics identified by the minister it is necessary to be accurate about what the minister did treat as relevant.  In the present case it was not the topic of sentencing generally, nor was it the part the respondent had played in the commission of the offences.  The matter which the minister selected as relevant was the nature of the offence itself upon which the sentencing judge had made the obvious remark that it was “serious”.  No further information was necessary to qualify that fact and the Court of Criminal Appeal made no comment to the contrary.

So on the facts of this case the Full Court was saying that what the Court of Criminal Appeal actually did comment upon was not really a matter upon which the Minister in any way, shape or form rested his decision. 

HIS HONOUR:   Yes.

MS WATSON:   They are the respondent’s submissions, your Honour.

HIS HONOUR:   Yes, thank you, Ms Watson.  What do you say about paragraph [82] of the majority reasoning?

MR WATSON:   Yes, going straight to that point, your Honour, it was sufficiently the case for Justice Madgwick at first instance and Justice Wilcox at second instance to consider that they were factors.  Once sentencing remarks had been made relevant, the whole, including the appellate court’s view of them, also became relevant.  So that may be an issue that we squarely face up to in the special leave application itself – we accept that – but we do have two Federal Court judges who considered that that was not a determining factor. 

HIS HONOUR:   Yes.  Well, that is what at this level that you have, preliminary level, is significant for me I suppose. 

MR WATSON:   As to whether these remarks did in fact ‑ ‑ ‑

HIS HONOUR:   No, that you have two Federal Court judges who seem to be saying one thing ‑ ‑ ‑

MR WATSON:   I apologise, your Honour.

HIS HONOUR:   ‑ ‑ ‑ and two who took a different view or different construction.

MR WATSON:   Yes, your Honour.  In relation to the other three points my friend raised very briefly:  no real reason or explanation for the delay – your Honour, the matter was in the hands of senior and junior counsel.  There were differing advice.  Junior counsel was acting pro bono.  The fact is a further letter came out at about the time these documents were due.  This client is not a sophisticated person in the ways of the law.  Her fate was, as it were, in the hands of others.  She in particular speaks Vietnamese and not English, and I say again, your Honour, it appears that what really was happening was that it all became a little bit overwhelming. 

Where action should have been taken was immediately after the deemed notice or around that time that the deemed notice was sent – the letter was sent, once an appreciation of the circumstances had been realised. 

My friend says that my solicitors should not have been under the misapprehension, but in fact this all came to light, your Honour, because the applicant, through her solicitors, applied for a bridging visa.  When they inquired about what was going on with the bridging visa, they were told, “You can’t have one, you have already got permanent residency.”

HIS HONOUR:   Yes.

MR WATSON:   Thirdly, your Honour, while on the one hand there has been a six months delay before the detailed explanation of the delay, on the other hand, your Honour, this Immigration Department took no steps, at least to the knowledge of Mrs Huynh, after the success in the Federal Court and then after the deemed abandonment to try and arrest her or detain her.  It was only the fortune that she was applying for citizenship that she turned up at the Immigration offices on 5 August that made them react.

HIS HONOUR:   I do not need to hear you any further on that.

In all the circumstances of this matter, bearing in mind, in particular, the division of opinion in the Federal Court, I think I should make the following orders:

1.        Orders 1 and 2 of the summons filed 30 August 2005.

2.        Costs of the summons will be costs in the special leave application.

AT 10.26 AM THE MATTER WAS CONCLUDED