Huynh v Minister for Immigration and Citizenship & Anor

[2012] HCATrans 12

[2012] HCATrans 012

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S32 of 2012

B e t w e e n -

HOAI HAN HUYNH

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

Application for an order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 3 FEBRUARY 2012, AT 10.00 AM

Copyright in the High Court of Australia

MR H.H. HUYNH appeared in person.

MR J.D. SMITH:   May it please the Court, I appear for the first defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes, Mr Huynh.  Mr Huynh, would you please go to the lectern with your interpreter.  Mr Huynh, I have read the papers which you have filed in Court.  That means I have read your application for an order to show cause which was filed on 25 January 2012.

MR HUYNH (through interpreter):   Yes, your Honour.

HER HONOUR:   I have also read a summons filed in Court also on 25 January 2012 and I have also read an affidavit which was sworn by you on 23 January 2012 which you have filed in support of your summons.

MR HUYNH (through interpreter):   Yes, your Honour.

HER HONOUR:   Mr Huynh, I understand that you are seeking from the Court today an extension of time which you require in relation to your application.

MR HUYNH (through interpreter):   Yes, your Honour.

HER HONOUR:   From your affidavit I understand that you are also seeking an injunction to restrain the Minister for Immigration and Citizenship from deporting you because an injunction which you obtained in the Federal Court from Justice Jacobson to restrain the Minister from deporting you will expire today.  Is that correct?

MR HUYNH (through interpreter):   Yes, that is correct, your Honour.

HER HONOUR:   I also understand from your affidavit, to which I referred before, the same affidavit, that you wish to provide the Court with a further affidavit and an outline of submissions.  Is that right?

MR HUYNH (through interpreter):   Yes, that is right, your Honour.

HER HONOUR:   I also understand from your affidavit that you wish to file an amended application.  Is that correct?

MR HUYNH (through interpreter):   Yes, your Honour.

HER HONOUR:   Mr Huynh, have you received written submissions prepared on behalf of the Minister for Immigration and Citizenship, a copy of them, filed on 2 February 2012?

MR HUYNH (through interpreter):   Yes, your Honour.

HER HONOUR:   Thank you.  Now, Mr Huynh, I invite you to make submissions to me in relation to your application to obtain an extension of time and an injunction.

MR HUYNH (through interpreter):   Your Honour, I would need to get legal advice so I need more time to get a solicitor to represent me.  Moreover, my document has been prepared by somebody else so I need more time to go all over my document.

HER HONOUR:   What steps have been taken by you to engage a solicitor?

MR HUYNH (through interpreter):   To get a solicitor to represent me, your Honour.

HER HONOUR:   Have any steps been taken to obtain a solicitor’s advice before coming to Court?

THE INTERPRETER:   Your Honour, Mr Huynh, has something to provide you.

HER HONOUR:   That is a handwritten document, is it, Madam Interpreter?

THE INTERPRETER:   Yes, your Honour.

HER HONOUR:   Would you read it to me, Madam Interpreter.

THE INTERPRETER:   Yes, your Honour.

HER HONOUR:   What is it called, for a start?  Is it submissions or what is it?

THE INTERPRETER:   The written is asking for an adjournment.

HER HONOUR:   I see.  Yes, I see.  That is what the document says, is it?

THE INTERPRETER:   Yes, your Honour.

HER HONOUR:   That Mr Huynh is asking for an adjournment?

THE INTERPRETER:   Yes, your Honour.

HER HONOUR:   Can I ask Mr Huynh what his reasons are?

MR HUYNH (through interpreter):   Yes.  It has been listed in this writing, your Honour.

HER HONOUR:   Is that writing in English?

MR HUYNH (through interpreter):   Yes, your Honour.

HER HONOUR:   So those are the submissions you want to make to me about an adjournment.  Is that right?

MR HUYNH (through interpreter):   Yes, your Honour.

HER HONOUR:   Mr Smith, do you wish to see those before they are read to me?

MR SMITH:   Yes, thank you, your Honour.  They are not very long.  I have read those.

HER HONOUR:   Would you read them to me, please, Madam Interpreter.

THE INTERPRETER:   Yes, your Honour.

HER HONOUR:   I am assuming Mr Huynh would have difficulty reading English.  Would you ask him if that is correct.

MR HUYNH (through interpreter):   That is correct, your Honour.

HER HONOUR:   Who has written out these submissions?

MR HUYNH (through interpreter):   Somebody help me to write these submissions.

HER HONOUR:   Very well.  Well, would you mind reading them out to me, Madam Interpreter.

MR HUYNH (through interpreter):   I ask the Court for an adjournment in order that I must secure legal representation to prosecute my case before the High Court and I ask the Court to help me find legal representation.  There are serious questions of law that arise in this case in the administration of justice.  That is number one.  Then number two.  The questions which the Court will be asked to address among others are (a)

whether the Tribunal’s decision is violated by jurisdictional error; (b) that the question as to granting extension of time should not undermine Australia international obligations; (c) new evidence and materials; 3.3, I have been seeking legal representations but have not been able to secure one yet as all my effort has firstly to comply with the orders of his Honour Jacobson of the Federal Court. 

Four, to ensure that I forward an application in the High Court of Australia, it has been very stressful given the fact that the computers in the detention centre do not work well.  Five, my mother, who was able to secure legal representation, is not too well and very stressed as well due to my predicament.  Number six, there are new material evidence which I will be relied on before the Court.  Number seven, I ask the Court to grant and extend the injunction granted by his Honour Jacobson J of the Federal Court of Australia by restraining the Minister from removing me from Australia.  Eight, and these are the name of lawyer I have contacted - Leo Giampietro from Legal and Company, Solicitor, Migration Agent and My Thi Yen Tran from My Thi Nguyen Solicitor, Solicitor, Migration Agent.

HER HONOUR:   Thank you.

THE INTERPRETER:   That is it, your Honour.

HER HONOUR:   Is there anything further that Mr Huynh wishes to say to the Court?

MR HUYNH (through interpreter):   No, your Honour.

HER HONOUR:   Thank you.  You may sit down for the moment.  Yes, Mr Smith.

MR SMITH:   Your Honour, the application for an adjournment and an injunction is opposed.  The principal difficulty with the application is that the substance of what it is proposed to argue has already been argued before Justice Edmonds with the assistance of both a solicitor and counsel.  It having been argued in that manner and with that assistance before his Honour, it makes it unlikely that any further assistance will improve the prospects of the argument in this Court.

HER HONOUR:   One difficulty I think, Mr Smith, is proceeding with that argument today having regard to the fact that the applicant is representing himself has sworn that he wishes to place more material before the Court.  I will hear you out, but may I just make an indication that one possible disposition today would be to grant a very short injunction and to make directions requiring the applicant to place before the Court all the material he wishes to place before the Court and have the matter returned in about a week and a half in Sydney for the pursuit of the present argument.  In other words, adjourn the basic hearing of the summons for a very short period.

MR SMITH:   I would have to take some instructions on that, your Honour, but again a difficulty we face is we do not know what evidence or further material that is.

HER HONOUR:   Well, that is right.

MR SMITH:   And to what point it goes.

HER HONOUR:   No, I do not either, of course.  I had in mind having listened to Mr Huynh that he does seem to have spoken to some solicitors.  I had in mind that I could make directions that he file any amended application and any extra material such as he has foreshadowed on or before Friday of next week and then the further hearing of the summons in the context of a short injunction could take place in Sydney before Justice Bell on Tuesday, 14 February 2012.

MR SMITH:   Can I take some instructions on that, your Honour?

HER HONOUR:   Yes, certainly, Mr Smith.

MR SMITH:   Thank you, your Honour.  My instructions are that the Minister’s preference is to deal with the matter today and in that respect I have made the most salient submission about what we know and what we do not know.

HER HONOUR:   Very well, Mr Smith.  I have read your outline also.  Do continue.

MR SMITH:   Your Honour, the essential basis of the opposition is, as your Honour will have seen, that we say that Justice Edmonds was correct to say that there was no prospect of succeeding in an argument that the Tribunal failed to take into consideration as a primary consideration an international obligation concerning the maintenance of a family unit.  If your Honour has the applicant’s ‑ ‑ ‑

HER HONOUR:   On the present state of the papers, Mr Smith, it is not possible for me to discern exactly what grounds are intended to be pursued in this Court in relation to the decision of the Administrative Appeals Tribunal.  In other words, the material before me requires consideration and possibly amendment.

MR SMITH:   I understand from the bare outline nature of the grounds in the summons and I accept that, your Honour.  However, the ground – there are two grounds which are more elaborately phrased and the first of those is that which was considered and argued, as I said before, with the assistance of counsel before Justice Edmonds last year and that ground is whether there was a requirement of the Tribunal to consider as a primary consideration an international obligation, namely, to maintain the family unit of a refugee. 

That primary consideration, as your Honour will have seen from the papers, and particularly from Justice Edmonds’ judgment, would and could only have fallen from what is known as Direction 41, which is a direction by the Minister to decision-makers to whom it falls to consider the exercise of discretion to cancel under section 501(2) of the Act.

His Honour, in effect, for several reasons, rejected or found that there were no prospects on that ground.  The first is that the argument was never put to the Tribunal that it should consider as a primary consideration any such international obligation.  The second is that such an international obligation was not contained in Direction 41 and the third, that the only source of a potential obligation, namely, the International Covenant for Civil and Political Rights and most particularly Article 23 in that Covenant, did not in fact contain any obligations.  That article is contained in the bundle prepared and filed yesterday.

HER HONOUR:   Yes, I have seen that, thank you, Mr Smith.

MR SMITH:   If I can briefly take your Honour to that.

HER HONOUR:   Thank you.

MR SMITH:   That is at page 72 of that bundle.

HER HONOUR:   Thank you.

MR SMITH:   Article 23 reads, sub Article 1:

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

The point made by Justice Edmonds and relied upon by the Minister is that in contrast to other articles within that, it imposes no obligation on any of the States which are parties to the covenant.  For example, by way of contrast, Article 6 at page 64 states that:

Every human being has the inherent right to life.  This right shall be protected by law.

Similarly, Article 7 relating to torture:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

His Honour made the final and fourth point going beyond that particular covenant that there was nothing in the Refugee Convention which imposed any obligation in respect of family unity of people who have been recognised as refugees.  His Honour made that point at paragraph 24 in his judgment relying upon what this Court said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002. 

For each of those reasons, the international obligation relied upon by the plaintiff in this Court and before Justice Edmonds did not exist and so it was not something that, under Direction 41, the Tribunal was obliged to take into account as a primary consideration.  That means its failure to do so did not constitute jurisdictional error.

The second of the better formulated grounds, if I can phrase it like that, is that found in paragraph 6 of the grounds in the application for an order to show cause, namely:

that the tribunal constructively failed to exercise jurisdiction and get further and additional information to make an informed decision on the matters it was not certain of before the writing of the decision –

That echoes the ground often referred to as the duty to inquire and in order to be made good, we say, would either require there to be some express duty or obligation under the Administrative Appeals Tribunal Act for there to be such inquiries made by the Tribunal or for there to be a power to do so but for the power to have been unreasonably exercised. 

In respect to the first of those, there is no such duty or obligation in the Administrative Appeals Tribunal Act.  In respect to the second, there are several difficulties with any argument that might be made.  First of all, there is no indication of what inquiries about what material might have been made by the Tribunal and, secondly, no indication as to whether or not that might have made any difference or had any effect upon the jurisdiction of the Tribunal’s exercise of power. 

For those two reasons, we say the prospects of arguing that it was unreasonable for the Tribunal not to have made inquiries are very slight, if non‑existent.  The additional factor in respect of this ground which distinguishes it from other cases such as the Minister for Immigration and Citizenship v SZIAI is that there are limitations upon the evidence that may be considered by the Tribunal when exercising a review power under section 500 and those in particular are found in section 500(6H).  That is found, your Honour, in the bundle at page 34.  I mean to say (6H) and following.  Subsection (6H) limits the oral evidence that can be given to the Tribunal to which it may have regard in that it must be:

set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) –

The second limitation is found in (6J) and that is that:

the Tribunal must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing . . . in relation to the decision under review.

The third limitation which is relevant to this question is found in (6L).  It is not a limitation on the evidence, your Honour, but on the timeframe within which the Tribunal must make a decision.  Subsection (c) of that section says that:

If:

. . . 

(c)the Tribunal has not made a decision . . . in relation to the decision under review within the period of 84 days –

that is, 12 weeks –

after the day on which the person was notified of the decision under review in accordance with subsection 501G(1);

the Tribunal is taken, at the end of that period, to have made a decision . . . to affirm the decision under review.

In the context of that time limit, the failure by a Tribunal to make its own inquiries, particularly where both parties are represented in a hearing before it, adds greater difficulties to any argument that the Tribunal has acted unreasonably in the exercise of its jurisdiction.  So for those reasons, your Honour, we say that the prospects of the arguments that the Tribunal made jurisdictional error are such that it is not in the interests of the administration of justice for an extension of time and that in respect of the injunction no prima facie case has been made to support an injunction even for a short period.  Unless there is anything further, your Honour, those are my submissions.

HER HONOUR:   Thank you, Mr Smith.  Yes, Mr Huynh, would you come forward.  Does Mr Huynh wish to make further submissions, Madam Interpreter, in response to Mr Smith?

THE INTERPRETER:   Your Honour, Mr Huynh had another bundle of document he need to show the Court. 

HER HONOUR:   Madam Interpreter, if you are wishing to file further material, that should have been done when you were first invited to make submissions - if you were wishing to do that today.

THE INTERPRETER:   Your Honour, Mr Huynh explained that because he did not know that he need to provide these documents before today.

HER HONOUR:   Yes, I see.  Is there anything else he wishes to say?

MR HUYNH (through interpreter):   I would like to sit for a further adjournment to provide more evidence about – to provide more document about this matter, your Honour.

HER HONOUR:   Yes, I understand that.  Does that complete what Mr Huynh wishes to say?

MR HUYNH (through interpreter):   Yes, your Honour.

HER HONOUR:   Thank you.  I will take a moment to consider what course should be taken.

MR HUYNH (through interpreter):   Thank you, your Honour.

HER HONOUR:   Thank you.  Madam Interpreter, will you come forward with Mr Huynh.  I have a question.  You produced a bundle of material.  Could you please tell me how that material is to be described?  What is it?

THE INTERPRETER:   Your Honour, part of the document is some sort of medical – Mr Huynh’s mother’s medical document.

HER HONOUR:   Yes.

MR HUYNH (through interpreter):   Like this one is the picture what is taken on Friday, 2 November 2010 when I was transferred from Cessnock Correctional Centre and to Parramatta and then to Villawood Detention Centre.

HER HONOUR:   Do you wish to file that in Court now?

MR HUYNH (through interpreter):   Yes, your Honour.

HER HONOUR:   Would you show it to Mr Smith, please.

MR SMITH:   Your Honour, I have no objection.

HER HONOUR:   No objection.  Thank you, Mr Smith.  Please pass the material to the associate.  I will mark that material.  Mr Smith, I wonder if you could help me just for the purposes of the exhibit, would you – I am sorry to ask you this.  I have assumed there would be somebody in Court I could ask.  I just want a description of those documents.

MR SMITH:   There are various documents that might be described as medical records relating to the plaintiff’s mother, copies of passports, a death certificate, other photos relating to what appear to be an early time in Vietnam, when I say early, early in the plaintiff’s life.

HER HONOUR:   That is probably sufficient for my purposes, Mr Smith.  Thank you.  There being no objection, I mark a bundle of documents which can be described as medical records in relation to the plaintiff’s mother, copies of passports, a death certificate, photos and other material, as exhibit A.

EXHIBIT:    Exhibit A.....Medical records in relation to the plaintiff’s mother, copies of passports, a death certificate, photos and other material.

HER HONOUR:   You may sit down, Mr Huynh.

On 25 January 2012, the plaintiff, a national of Vietnam, filed an application for an order to show cause seeking writs of prohibition, certiorari, mandamus and other relief, including an injunction and an extension of time in which to seek such relief.  The summons dated 25 January 2012 seeking relief in the same terms has been made returnable urgently today, the application for injunction being taken to include an application for interlocutory injunctive relief to restrain the first defendant, the Minister for Immigration and Citizenship, from deporting the plaintiff from Australia.

On 22 October 2010, the second defendant, the Administrative Appeals Tribunal (“the AAT”) made a decision to affirm a decision of a delegate of the Minister to cancel the plaintiff’s Return (Residence) Class BB/155 visa on the ground that he did not pass the character test under s 501 of the Migration Act 1958 (Cth) (“the Act”).

On 22 June 2011, the plaintiff applied to the Federal Court of Australia for an extension of time under s 477A of the Act to apply for relief in respect of the AAT’s decision.

On 2 November 2011, Edmonds J of the Federal Court of Australia dismissed that application on the basis that it would be futile to grant an extension because the plaintiff had no prospects of succeeding in an appeal from the AAT’s decision on the ground raised in the plaintiff’s draft amended notice of appeal.

On 19 January 2012, during the course of an application by the plaintiff to the Federal Court of Australia for an extension of time in which to make an application for leave to appeal from the decision of Edmonds J, Jacobson J of the Federal Court granted an interlocutory injunction restraining the first defendant until today from exercising the power to remove the plaintiff from Australia.  It appears that the plaintiff is seeking an extension of time in this Court in which to seek constitutional writs in respect of the AAT’s decision.  The plaintiff is also seeking relief by way of prohibition and certiorari relating to the judgment of Edmonds J and a writ of habeas corpus directed to the first defendant.

The grounds on which relief is claimed all refer to the decision of Edmonds J and it is not entirely clear what grounds the plaintiff wishes to pursue in relation to the AAT’s decision.  Whilst the application in its terms warrants further consideration and amendment, the plaintiff, in an affidavit sworn on 23 January 2012 filed in support of the summons, appears to seek to have the AAT’s decision set aside for jurisdictional error.  In that affidavit the plaintiff foreshadowed that he wished to provide a further affidavit and an outline of submissions and wished to seek leave to file an amended application and further material.

The applicant has appeared before me this morning by video, without legal assistance, through an interpreter.  The second defendant has filed a submitting appearance.  The first defendant opposed the grant of an extension of time and sought dismissal of the summons on the basis that the plaintiff has no reasonable prospects of obtaining the relief sought.

The plaintiff applied for an adjournment and an interlocutory injunction.  The reason given for seeking an adjournment is to obtain legal advice and to file further material.  The first defendant discerned in the plaintiff’s material four bases on which the plaintiff attacks the decision of the AAT and I heard full argument in support of the first defendant’s submission that on the present material the plaintiff has not shown an arguable case in respect of the grounds for relief. 

It was also submitted there was no material before the Court which revealed a basis for the grant of an interlocutory injunction.  When given an opportunity to make submissions in reply, the plaintiff produced a bundle of materials.  There being no objection, these various documents, which include medical records in relation to the plaintiff’s mother, copies of passports, a death certificate, photographs and other materials were marked as Exhibit A. 

In all of the circumstances I will grant an interlocutory injunction for a short period and make directions for the further hearing of the summons.  The orders I make are:

1.The first defendant is restrained from removing the plaintiff from Australia before 4.00 pm on Tuesday, 14 February 2012.

2.The plaintiff to file an amended application for an order to show cause on or before Friday, 10 February 2012.

3.The plaintiff to file any further material in support of the summons dated 25 January 2012 and any outline of submissions on or before Friday, 10 February 2012.

4.The summons dated 25 January 2012 be adjourned for further hearing in Sydney before Bell J on Tuesday, 14 February 2012 at 9.30 am.

5.Costs reserved.

Mr Huynh, will you come forward please?  Mr Huynh, you have been granted an adjournment and your application to the Court will be further heard on 14 February 2012 at 9.30.  You are required by the orders made to file an amended application by Friday, 10 February 2012.

MR HUYNH (through interpreter):   Yes, your Honour.

HER HONOUR:   Mr Huynh, do you understand that is a very important task which you need to undertake in the time which you have been given?

MR HUYNH (through interpreter):   Yes, your Honour.

HER HONOUR:   Mr Huynh, you have also been given an opportunity to file any further material and any outline of submissions by the same day, Friday, 10 February next.

MR HUYNH (through interpreter):   Yes, your Honour.

HER HONOUR:   I want to make it clear, Mr Huynh, that is also a very important task and it is very important for you to meet that deadline.  Thank you.  Nothing further?

MR HUYNH (through interpreter):   Thank you very much, your Honour.

AT 11.01 AM THE MATTER WAS ADJOURNED