Kankanamge v MIMIA & Anor

[2006] HCATrans 453

[2006] HCATrans 453

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M72 of 2006

B e t w e e n -

DAYARATHNA WICKRAMAPALA WANNIARACHCHI KANKANAMGE

Plaintiff

and

THE HONOURABLE AMANDA VANSTONE, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

MR ALAN GREGORY IN HIS CAPACITY AS MEMBER OF THE MIGRATION REVIEW TRIBUNAL

Second Defendant

Summons for directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 24 AUGUST 2006, AT 10.37 AM

Copyright in the High Court of Australia

__________________

MR C. WEERAKOON:   Your Honour, I appear on the basis of pro bono…..on behalf of the client to assist his interest and to assist the Court.  (instructed by the plaintiff)

MR C.J. HORAN:   If the Court pleases, I appear for the first respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Thank you very much.  Now, I understand that he asked for the services of a Sinhalese interpreter.  Should I nonetheless have the interpreter sworn or affirmed and provide his assistance to the applicant as well?  Perhaps if the interpreter could be sworn or affirmed.

SARATH WICKRAMASINGHE, affirmed as interpreter:

HIS HONOUR:   Yes, thank you very much.  Now, Mr Horan, you are the moving party, I believe, is that right?

MR HORAN:   Yes, insofar as the first defendant has filed and served a summons dated 19 July 2006 seeking the dismissal of the proceeding.  That is supported by an affidavit of Maria Ngo sworn 17 July.  I think there is one typographical error, if I could just correct, in that affidavit.  In paragraph 2 of the affidavit in the second line there is a reference to 12 February 2006 the plaintiff applied for and was granted a subclass 435 visa.  That date should, in fact, read 12 February 1996. 

HIS HONOUR:   Yes.

MR HORAN:   Subject to that, your Honour, the application in this Court seeks review of a decision by the Migration Review Tribunal handed down on 18 February 2004 and this application for an order to show cause was filed on 30 May 2006.

HIS HONOUR:   Sorry, the MRT was when?

MR HORAN:   On 18 February 204.

HIS HONOUR:   Thank you.

MR HORAN:   That was an application for a change in circumstances residence visa known as class AG subclass 806 and was applied for on the basis that the applicant claimed to be a special need relative of his brother.  The plaintiff commenced judicial review proceedings in relation to the Tribunal’s decision which were commenced in the Federal Court and transferred to the Federal Magistrates Court.  Those proceedings were dismissed by the Federal Magistrates Court on 25 July 2005 and an appeal to the Federal Court was dismissed on 3 May 2006. 

The application itself does not provide particulars of the grounds of review, however, the outline of submissions filed on behalf of the plaintiff lists a number of matters each of which is reproduced from the grounds of appeal, effectively, that were pursued in the Federal Court apart from, if your Honour has the document ‑ ‑ ‑

HIS HONOUR:   Yes, I do.

MR HORAN:   ‑ ‑ ‑ the last of those matters, item (viii), which appears to be misplaced in that it has no possible application to the facts of the present case.  All of the other matters were specifically addressed and rejected by her Honour Justice Collier in the Federal Court on appeal. 

Now, in relation to the disposition of this application, the application is outside time under section 486A subject to any issues about construction and validity that might arise in relation to that provision. The reason it is outside time is that the decision under the transitional provisions was deemed to have been notified – or the applicant was deemed to have received actual notification on 1 December 2005. The proceeding was filed on 30 May 2006 which was a considerable time after the expiration of the 84‑day period beyond which no extension of time is available under section 486A. I also note that, in any event, the application would have been outside the time limits prescribed under the High Court Rules and would have required an extension of time under those rules.

Your Honour, it might be an appropriate time to address some of the matters that were raised by your Honour earlier in relation to 486A.  The first matter relating to other proceedings in which the issues relating to the construction or validity of the provision have been considered, on my instructions, there has not yet been a decision of a court on the construction or validity of the section in its present form.  However, there is a proceeding issued in the Sydney Registry which is proceeding No S219 of 2006 in which the plaintiff has directly raised a question of the validity of the section, so that the application for an order to show cause in that proceeding states in part:

If the Minister seeks to rely upon the time limit in s 486A of the Migration Act 1958, a declaration that s 486A of the Migration Act 1958 is invalid in so far as it seeks to prohibit this Honourable Court from determining the application, by unlawfully fettering the powers of this Honourable Court enshrined in the Constitution.

I am not aware of what the status of that proceeding is, nor whether it is a matter that is heading to any determination of that constitutional question.

HIS HONOUR:   That seems divorced from the question of the construction issues presented by this notion of purported privative clause decision.

MR HORAN:   Yes.  In relation to construction, the Minister’s submission is that the provisions clearly indicate a legislative intention to impose a time limit on proceedings, including proceedings in relation to decisions which would otherwise have been held to be affected by jurisdictional error.

HIS HONOUR:   My first impression is that there is not much doubt about what is intended.

MR HORAN:   Yes, and so the question becomes ‑ ‑ ‑

HIS HONOUR:   But the question becomes much more sophisticated because the question becomes the resolution of the tension thus created within the Act by provisions which on the one hand say a decision‑maker is confined and then a provision which says a decision that is made beyond those confines and which, at least on one possible view, is no decision at all, no exercise of power, is not open to judicial review at all, or is not open to judicial review beyond certain times. 

Now, the construction issue which lay at the root of S157, and at least on some views, lies at the root of Hickman, is one that I think may require examination not just of 486A in isolation but 486A in the whole of the context provided by the Act, including this concept of purported privative clause decision.

MR HORAN: Yes, your Honour. I should mention that there is one case in which section 486A in an earlier form was one occasion on which the validity of that section in a previous form was considered and that is in

Plaintiff S157 211 CLR 476, to which your Honour has referred, but Justice Callinan in that case at 535 to 538 considered the validity of section 486A. His Honour was the only member of the Court to address that issue and the conclusion reached was that the section was inconsistent with Chapter III and invalid, but, of course, the section at that time was in a very different form in that it operated from deemed notification rather than actual notification, the period was 35 days and there was no power of extension, whereas the current provision operates from actual notification, the primary time limit is 28 days, but there is a power to extend up to 84 days.

HIS HONOUR:   Do we confront those issues in this case?

MR HORAN:   Well, that is the next question, your Honour.  I would submit not because, in any event, given the previous judicial review proceedings, it would be an abuse of process for the plaintiff to recommence the current proceedings in this Court relying on identical grounds that were considered and rejected on appeal by the Federal Court.

HIS HONOUR:   Was there any application for leave from the Federal Court?

MR HORAN:   Not to my knowledge.  It would, in theory, remain open to the plaintiff to seek out of time to apply for special leave from her Honour’s decision and that, in my submission, is the appropriate step, if any, that should be taken by the plaintiff rather than simply recommencing proceedings in this Court either to have them determined here or sent back to, effectively, square one, back to the Federal Magistrates Court.  There is no new ground raised, no new matter raised and, in those circumstances, the proceedings are simply an abuse of this Court’s process.

HIS HONOUR:   Yes, thank you, Mr Horan.  I would be assisted by argument directed only to this question of abuse of process.  Questions of construction of 486A and the like are questions which I regard as much larger and they are not questions which it would be convenient to embark on if the Minister were right about what she says about abuse of process.  So can I confine your argument in the first instance to what you say in answer to this abuse of process point.  If there is an answer to that, then we might have to get off into the 486A territory, but if there is no answer to the abuse of process argument, we never get to the 486A argument.  Do you follow me?

MR WEERAKOON:   Yes, your Honour.

HIS HONOUR:   Yes, so I would be assisted by whatever you have to say on that abuse of process point.

MR WEERAKOON:   Yes, your Honour, in my respectful leave, I would like to present to you my client’s instructions as a lay person from a lay person’s perspective rather than from a perspective of a legal practitioner because that is what I am representing here.

HIS HONOUR:   Yes.

MR WEERAKOON:   Of course, in regard to the allegation that this amounts to an abuse of process, then, of course, in my respectful leave, I do not see any new arguments or new special circumstances that would constitute new grounds for the purpose of continuing these proceedings, your Honour, because these points or arguments and issues have been taken in the lower court. 

With respect to you, they have not sought special leave of appeal to canvass these issues in the Full Federal Court for his personal reasons of lack of financial resources but, most importantly, from a lay person’s perspective, he is still of the view, a strong view, that the need for a special need relative to care for his brother who suffers from numerous ailments and which constitute prolonged illness in terms of regulation 1.03 as illustrated by 1.3 regulation, and as instructed he normally suffers from diabetes, hypertension, hernia and a number of illnesses that should really constitute prolonged illness which has not been given due consideration – which he contends not given due consideration by the Migration Review Tribunal and in total disregard to the ‑ ‑ ‑

HIS HONOUR:   I am sorry.  Just a moment, are we having some difficulty with – I wonder, could you come to the central microphone.  That would be of assistance.

MR WEERAKOON:   Yes.  Well, your Honour, he is of the belief and he believe that due consideration has not been given by the Tribunal to the fact of prolonged illness as submitted by regulation 1.03 in total disregard of the medical report that had been submitted by the GP, one Dr Kanapathipilli, where he has substantiated and he has given his report as to the nature and condition of the illness.  So he…..that he satisfies part 806 of schedule 2, the criteria as to special need relative and that he is a person who is willing and capable of giving substantial assistance to a person who needs long‑term assistance by reason of his prolonged illness. 

In that process the Tribunal has not taken into consideration some of the relevant factors and evidence that has been forwarded to the Tribunal in order to substantiate his claim for need of a special need relative.  For instance, the Migration Review Tribunal, your Honour, has not had any consideration to the medical report which explains and which clarify what is

real cause of illness which constituted prolonged illness in terms of the Migration Regulations.  He says that the Tribunal has wrongly come to the conclusion by the fact of his being able to work at the time of the application where the Tribunal came to the conclusion that, had he been able to work, which means he was not….., not to be able to work and they have come to the wrong conclusion and mischaracterised the test for the definition of prolonged illness as admitted by 1.03. 

So on this basis, your Honour, the client thinks that grave prejudice has been caused to his interests by depriving him, who is willing and capable of looking after his own brother who has been suffering from prolonged illness and who is suffering from numerous illnesses, which he is now, and he is deprived of that opportunity to comfort and care for his brother and therefore he thinks that – so in these…..he is not satisfied that even the issues that have been raised in the lower courts have not been given due consideration in respect of the fact that he was represented throughout when his condition is that, your Honour, his interests are not being met and therefore create difficulties…..by the oversight of that and he thinks still there is provision.

Well, if your Honour thinks that there are sufficient grounds or special circumstances that would consider it grounds for your Honour to permit this matter to proceed by being in a different forum as, for instance, canvass the issues in the Full Federal Court by way of special leave, well, of course, if you think, your Honour, that…..that has not been given in the lower courts or primarily by the Migration Review Tribunal, I think my submission would be that, well, of course, we need to consider the question of the medical evidence that has not been given total consideration by the Migration Review Tribunal.  My respectful view would be that this does not amount to an abuse of process of law, your Honour.

HIS HONOUR:   Thank you for your assistance. 

The plaintiff arrived in Australia in January 1996 as the holder of a short stay visitor visa.  Thereafter he became the holder of a number of different forms of visa, but for present purposes it is important to focus upon an application which he made in July 1998 for a visa called Change in Circumstance (Residence) Class AG Subclass 806 (Family Special Need Relative Visa) Special Need Relative Visa in which he nominated his brother as the relative having special needs.

In September 2003 a delegate of the Minister refused to grant the plaintiff that Special Need Relative Visa.  The plaintiff made application to the Migration Review Tribunal for review of that decision and in February 2004 the Tribunal affirmed the delegate’s decision not to grant a Special Need Relative Visa.  In March 2004 the plaintiff began a proceeding in the Federal Court of Australia seeking judicial review of the Migration Review Tribunal decision.  That proceeding was transferred to the Federal Magistrates Court and on 25 July 2005 Federal Magistrate McInnis dismissed the plaintiff’s application.

The plaintiff appealed to the Federal Court of Australia, but on 3 May 2006 that appeal was dismissed by a single judge of the Federal Court exercising the appellate jurisdiction of that court.  On 30 May 2006 the plaintiff filed an application for an order to show cause directed to the Minister and the Tribunal concerning the Tribunal’s decision to affirm the refusal of the Special Needs Relative Visa.

The Minister now applies for orders summarily terminating the proceedings.  The Minister would seek to advance a number of arguments in support of that contention.  For present purposes it is necessary to consider only one, namely, that the maintenance of the proceedings in this Court would constitute an abuse of process. 

The plaintiff received the assistance of pro bono counsel appearing for him today and for that the Court is indeed grateful.  Emphasis was laid in the course of argument upon the plaintiff’s contention that matters which he thinks bear directly upon whether he should be granted a visa of the kind for which he has applied were not properly considered by the Migration Review Tribunal.  It is important in this respect to recall some fundamental considerations which regulate the availability of judicial review.  As Justice Brennan said in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 to 36:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.  If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error.  The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

The task of this Court, when its jurisdiction under section 75(v) of the Constitution is invoked, is, as Chief Justice Brennan recorded in the memorable words of Chief Justice Marshall in Marbury v Madison, 5 US 87 (1803) at 111:

“It is, emphatically, the province and duty of the judicial department to say what the law is.”

It is not to review the merits of the administrative decision which is impugned. 

The application that is made in this Court, to all intents and purposes, seeks nothing other than to re‑agitate that which has been heard and determined in the Federal Magistrates Court and on appeal in the Federal Court of Australia.  That being so, it would be an abuse of process for the plaintiff to begin again in these proceedings to re‑agitate that which has already been heard and determined in his resort to the judicial power of the Commonwealth.  That being so, the proceeding must be dismissed. 

Mr Horan.

MR HORAN:   I seek an order for the first defendant’s costs, your Honour.

HIS HONOUR:   The plaintiff must pay the Minister’s costs. 

Thank you for your assistance, I am indebted.

AT 11.06 AM THE MATTER WAS CONCLUDED