Inovero, Ex parte - Re MIMIA & Ors

[2002] HCATrans 305

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  
  Adelaide  No A19 of 2002

In the matter of -

An application for a Writ of Mandamus, a Writ of Prohibition and a Writ of Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

DEBORAH MORGAN, MEMBER, MIGRATION REVIEW TRIBUNAL

Second Respondent

THE PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL

Third Respondent

Ex parte –

RODOLFO ANG INOVERO

Applicant/Prosecutor

Office of the Registry  
  Adelaide  No A27 of 2002

In the matter of -

An application for a Writ of Mandamus, a Writ of Prohibition and a Writ of Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

MARGARET HOLMES, MEMBER, REFUGEE REVIEW TRIBUNAL

Second Respondent

THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte –

APPLICANT A27/2002

Applicant/Prosecutor

Office of the Registry  
  Adelaide  No A38 of 2002

In the matter of -

An application for a Writ of Mandamus, a Writ of Prohibition and a Writ of Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

JONATHAN DUIGNAN, MEMBER, MIGRATION REVIEW TRIBUNAL

Second Respondent

THE PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL

Third Respondent

Ex parte –

KYOUNG SOON KIM
KWANG IL KIM

Applicants/Prosecutors

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 14 AUGUST 2002, AT 9.17 AM

Copyright in the High Court of Australia

__________________

MR S. WALSH, QC:   If your Honour please, I appear with MR M.W. CLISBY for the applicants.  (instructed by Mark Clisby) 

MS M.A. PERRY:   If your Honour pleases, I appear for the Minister.  (instructed by Sparke Helmore)

HIS HONOUR:   Yes.

MS PERRY:   I understand that letters have been faxed through from the other two respondents, which have simply said that they would abide the event, if that were necessary in any event.

HIS HONOUR:   Yes.  I have certificates, Ms Perry.  I hold two certificates, one in the matter of Inovero, in which the Deputy Registrar certifies that she has been informed by the Australian Government Solicitor, the solicitor for the second and third respondents in this matter, that the second and third respondents will submit to the order of the Court save as to costs.  In matter A27 of 2002, the Deputy Registrar certifies that she has been informed by the Australian Government Solicitor, the solicitor for the second and third respondents in this matter, that the second and third respondents will submit to the order of the Court save as to costs.  Yes, Mr Walsh. 

MR WALSH:   Thank you, your Honour.  The issue in relation to the three applications today is partly whether any or all of these cases warrant referral to the Full Court in conjunction with two other applications that have been referred to the Full Court – or at least an order nisi in one case and a case stated, I think, in the case of another – for hearing on 3 and 4 September.  In relation to the Inovero matter, in short, the applicant is the father of two children ‑ ‑ ‑

HIS HONOUR:   Yes, I have read the papers.  At first glance, it certainly seems a curious decision, but the problem, from your point of view, is the privative clause in 486A, is it not, in that case?  That is the way you want to join these other two cases. 

MR WALSH:   Yes, your Honour. 

HIS HONOUR:   But what are they going to add to the case? 

MR WALSH:   Well, your Honour, the key issue that they will add is that, in the case of Inovero, the person who is the applicant on behalf of his children, he is an Australian citizen. 

HIS HONOUR:   So that means then that the law will discriminate between Australian citizens and non‑Australian citizens, and between Australian citizens and corporations.  In other words, clauses to the effect of 474 are valid in relation to corporations, or may be valid in relation to corporations, but not in relation to citizens.  That does not sound a very promising point, Mr Walsh. 

MR WALSH:   The point that may be raised – and it is certainly not an issue that we would argue before the Court – is that in the case of citizens, and, in particular, with respect to the question of access to the courts, by way of the Court’s original jurisdiction, it may be important to consider whether a person is a citizen or a company is a registered company, as opposed to a person who is, under the Act, given certain rights only ‑ limited rights under the Migration Act – with respect to applications for visas.  So that it may be ‑ ‑ ‑

HIS HONOUR:   Look, I will not beat around the bush with you.  There is a time limit on these two cases.  The Court can only give these cases a day and a half.  There are two sets of counsel in.  I have spoken to Justice Gummow about it.  He regards the addition of any further cases as really just not on.  So I think you have difficulties about the matter.  We just cannot be loading the sittings up.  These cases have been put in as a matter of urgency and, in so far as Mr Inovero is concerned, there is no urgency about his case.  I am sure they are in the Philippines.  It is not as if they are in detention. 

MR WALSH:   Yes, it may be, your Honour, that if we were given leave to proceed in one form or another in September – and I understand the comments that your Honour has made, which I cannot answer, in terms of what his Honour Justice Gummow said – but it may be that you could restrict us in a certain way, so that even though two days are set aside and there may be insufficient time ‑ ‑ ‑

HIS HONOUR:   I think it is a day and a half, from what Justice Gummow told me. 

MR WALSH:   Can we put this to your Honour, that it may be that the facts of Inovero might be a useful sounding-board, as it were, for consideration of the privative clause and the legislation and also, of course, the ‑ ‑ ‑

HIS HONOUR:   Well, Inovero is a case, it seems to me, that even if you make good your point about jurisdictional error, the point could fail on discretionary grounds, for a number of reasons, not the least of them being that on the findings of fact that were made it does not seem a case that could succeed in any event. 

MR WALSH:   Save for this, your Honour, we, of course, have to ‑ ‑ ‑

HIS HONOUR:   I appreciate the force of the point that the Tribunal seems to have asked itself the wrong question, but given the facts they made – I mean, it seems an impossible proposition to suggest that these children were in the daily care and control of their father. 

MR WALSH:   That is true but, in a sense, that will always be so in a case of a person who is an Australian citizen, living in Australia, and the children are elsewhere. 

HIS HONOUR:   That only means that that paragraph just will not apply to them.  You have to rely on the second paragraph. 

MR WALSH:   It may be, your Honour, as an alternative, that you can rely on the paragraph and it must be read accordingly, according to the circumstances of the case.  Thus, for example, the delegate who made the decision which was then the subject of review to the Tribunal spoke of a test which did not necessarily require what one ordinarily might mean by way of “daily care and control”.  So, for example, if you were financially dependent upon that person, that might meet the test.  So, yes, it is true, we accept that, on the face of it, it might be thought that there are some difficulties for us, but when one looks into the facts and circumstances of the case, matches it against what the legislation must have intended in relation to cases such as this – and it may very well be that the case is arguable, and then the question, of course, is whether it is a suitable vehicle for the purposes of joining with those other two matters. 

HIS HONOUR:   Well, that is the problem, that you do not reach the question, that you will reach the 486A question – and that does not seem to me to have much to do with the citizens point; that applies generally – you may not reach the privative clause – well, you will not reach the privative clause point unless you decide the jurisdictional and discretionary grounds in your favour. 

MR WALSH:   We will not get to the point of even deciding the issue of discretion, your Honour, unless we are successful with respect to the privative clause provision. 

HIS HONOUR:   With the 486A. 

MR WALSH:   Yes, there is 486A but ‑ ‑ ‑

HIS HONOUR:   486A, the time point, on its face, prevents the Court even extending your time.  But leaving that aside, the issues are:  one, was there jurisdictional error?  Two, should the Court make an order?  Then you have to answer the question posed by the privative clause. 

MR WALSH:   Yes, your Honour, but on the face of the privative clause at the moment, it seeks to oust the jurisdiction of the Court completely, so there will not be any discussion about the question of the merits of the matter unless ‑ ‑ ‑

HIS HONOUR:   Well, I appreciate that, but one does not decide constitutional questions unless one has to, and this Court is already burdened by 130 applications in this Registry alone, not to mention Melbourne and Sydney.  The Court has to ration its time and it is not going to be taking on cases if ultimately there is a real chance they may fail.  This is a case that could well fail, even if the privative clause point and the other points are decided in your favour. 

MR WALSH:   Your Honour, I suppose ‑ ‑ ‑

HIS HONOUR:   None of the three of them seem to me to be strong vehicles, and, in respect of two of them, if we were having an argument today, I think you would be in real danger of not getting any orders at all, but having your applications dismissed – having read the papers in both of them.  But Mr Inovero’s case stands in a different category.  He seems to me to have quite a strong argument that there has been jurisdictional error.  The question is, though, whether or not, in the exercise of the Court’s discretion, it should make an order, having regard to what the Tribunal found and what is conceded. 

MR WALSH:   Your Honour, I will separate my submissions, with respect, to Inovero, as opposed to the other two matters.

HIS HONOUR:   Yes. 

MR WALSH:   I will just deal with Inovero for the moment.  The proposition that we put to your Honour, notwithstanding the comments that your Honour has made with respect to whether this matter should be referred or not for hearing in September, is this, that it may be that if there is some potential use with respect to the facts of this case, we could be restricted, for example, to any submissions that the Court might require on the issue of, for example, the fact that the applicant is an Australian citizen. 

So there are ways and means in which the Court might be able to utilise the difference, or the different facts of this case, and the fact that there is, on the face of it, a jurisdictional issue to be decided by way of a case stated, for example, or, alternatively, by way of a request that a notice of motion be filed for hearing on the Full Court and the Full Court to decide that issue at some time in the future.  So they are the possible alternatives that we raise with respect to this ‑ ‑ ‑

HIS HONOUR:   But there are many problems about this citizens argument with this particular applicant.  After all, the real applicants for the visas are the children. 

MR WALSH:   Yes.  There are sections in the Act, your Honour, that ‑ ‑ ‑

HIS HONOUR:   I know that gives him a right, but let it be assumed that the Government took away the right of a person in Mr Inovero’s position to make an application of this sort at all, but left it to the two children. What would the citizenship provisions of the Constitution have to say about that? I would have thought nothing.

MR WALSH:   If, in fact, Mr Inovero had no right to be here at all, we would have to concede that the issue of citizenship would be irrelevant because the applicants would be the two children, of course.  But in this case the Act does give him a right.  He is the sponsor.  He is entitled to be here, and, in fact, the sections provide that he is the appropriate person, in some circumstances, to be making an application for any further review.  So he is a person who is given rights and then, having been given the right, the right is taken away. 

HIS HONOUR:   If they could take it away directly by expressly abolishing the right, why cannot the government take it away by a privative clause such as 474?  There does not seem to be any difference in principle.  A different matter altogether if, for instance – or may be a different matter – he was an Australian citizen and his own rights were affected in some way.  But this right is very much a derivative right. 

MR WALSH:   That would be true if the Act had intended that he would have no right as a sponsor, but what the Act has done is to give him a right as a sponsor, but then not take away his right as a sponsor – take away the rights of all applicants, whether they be Australian citizens or non‑Australian citizens.  So, in our respectful submission, there is a point of distinction in terms of the point that your Honour puts to us, namely that in this case there is a right – he is to be treated as any other Australian citizen.  It does not matter whether the right was created, for example, by some other statute in favour of an Australian citizen; it is to be treated in the same way.  So, in our respectful submission, it would not matter that the right is created by the Act.  The fact is he has it and he is an Australian citizen. 

We cannot put anything further to the Court with respect to the case of Inovero, other than to say that we would, of course, accept some limitation on any access to the Court with respect to the arguments to be put before the Full Court on 3 and 4 September.  As regards the merits with respect to the case of Inovero, we say that we will not know whether there is in truth a case that has been met under the relevant test until such time as there is a hearing with respect to that relevant test.  It may be, because of the submissions that we put to your Honour, that a lot can be said about this man’s case, or the case of these children and the sponsor, which has not really been correctly argued because the wrong test was applied.  So it is still an arguable case, in our respectful submission. 

In relation to Kim, again, he is an Australian citizen, as your Honour is aware, and he is also the one who had to meet the test of special need relative with respect to his sister.  In our respectful submission, the Tribunal fell into error with respect to that in a procedural way – a denial of natural justice, as articulated in our outline of argument.  We say that he was denied procedural fairness in that having formed a view with respect to the evidence, it was not put to the witnesses. 

So, for example, it may have been an answer that clearly could have been given by the applicant or his wife to rebut the conclusion that was reached, that, no, the wife could provide the services in lieu of the sister.  He was obviously a very disabled person and what the Tribunal did was to make a conclusion that there was a very complex family circumstance that had to be considered but then just, without affording procedural fairness, made a decision that was against what might, on the face of it, appear to be a relatively strong case on the facts. 

In relation to A27/2002, we acknowledge that A27/2002 is not an Australian citizen, your Honour, but in that case the jurisdictional error is multi – or, at least, a number of jurisdictional errors, we say.  Of course, we do that against the background of Craig’s Case, namely, that where errors of this kind are made by a tribunal as opposed to a court, ordinarily they will be regarded as jurisdictional errors. 

HIS HONOUR:   Well, his best point is taking into account material after the application and before the decision. 

MR WALSH:   Sorry, your Honour? 

HIS HONOUR:   His best point is taking into account new material without it being put to him.  Is that not the case? 

MR WALSH:   Yes, that is so, your Honour, and that is ‑ ‑ ‑

HIS HONOUR:   That is what I thought was his best point, myself, just reading it ‑ ‑ ‑

MR WALSH:   Certainly, your Honour, that would give rise to a denial of procedural fairness. 

HIS HONOUR:   Well, exactly, and if that is a good point, then, on our recent cases, it is jurisdictional error and, subject to the privative clause, would entitle him to relief, assuming that that was material that he was not

on notice about, either expressly or impliedly.  But it does not seem to me that you could distinguish his case from the two that are already in the list.  Justice Hayne has stood over a number of cases in Melbourne and, it seems to me, you are going to have to meet the same fate with these cases.  There are hundreds of these cases around the country now.  We have taken two on and you will just have to abide the result of those, I think. 

MR WALSH:   No.  Well, I do not think I can put any more to your Honour, if the Court pleases. 

HIS HONOUR:   No.  Well, thank you, Mr Walsh.  I do not want to hear you, Ms Perry, except for this.  There is no suggestion we should determine any issues of substance on these applications, I take it? 

MS PERRY:   Your Honour, we were going to submit this morning that in two of the matters, in Kim and in A27/2002, that the appropriate orders would be that the applications for the orders nisi be dismissed on the basis that there was no arguable case. 

We were also going to suggest that perhaps if your Honour considered that there was an arguable case in the matter of Inovero, the appropriate course may be for that matter to be remitted to the Federal Court.  The issues there, we would say, would be capable of being determined in an appropriate manner in that jurisdiction.  But we see no objection to your Honour standing these matters over, if that is your Honour’s preferred course. 

HIS HONOUR:   Yes, well, given the time – I am part heard in the Full Court and I just do not think it is possible today to hear these applications.  What is the situation in the matter of A27/2002?  Is he in detention, or is he out?  What is the situation? 

MS PERRY:   Your Honour, my understanding is that he entered the country lawfully on an Indian passport with a visa, so that I do not understand him to be in immigration detention.  I would ask for confirmation, I am not sure – your Honour, we have not had confirmation.  I apologise to the Court for that. 

MR WALSH:   We understand he is not in detention, your Honour. 

HIS HONOUR:   He is not in detention, yes. 

MR WALSH:   Yes.  We have to concede that. 

HIS HONOUR:   Well, the public interest is not going to be hurt, I think, if I stand his matter over and the Kim matter over to await the outcome of these other cases.  They may put an end to these applications and I do not want to burden myself or other Judges with dealing with these applications if they are really going to become moot.  We have enough work to do with these immigration cases as it is. 

The order I will make in each of these three cases is that they be stood over until after the hearing of the cases which the Court will be hearing in September and after the decision in those two cases.  Either party can restore the matters to the list on three days’ notice.  I will reserve the order for costs. 

Very well, adjourn the Court. 

AT 9.39 AM THE MATTERS WERE ADJOURNED