Lu, Ex parte - MIMA

[2001] HCATrans 149

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M42 of 2000

In the matter of -

An application for a Writ of Prohibition or for an Injunction against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte -

HO SONG LU

Prosecutor

GLEESON CJ
GAUDRON J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 22 MAY 2001, AT 3.44 PM

Copyright in the High Court of Australia

MR P.R. HAYES, QC:   May it please the Court, I appear with MR T.V. HURLEY, for the prosecutor.  (instructed by Haines & Polites)

MR J. BASTEN, QC:   May it please the Court, I appear with MR N.J. WILLIAMS and MR G.A. MOWBRAY, for the respondent.  (instructed by Australian Government Solicitor)

MR B.M. SELWAY, QC:   May it please the Court, I appear with my learned friend, MS J.C. COX, for the Attorneys‑General for South Australia and Victoria, both intervening in support of the respondent on the constitutional question.  (instructed by the Crown Solicitor for South Australia and the Victorian Government Solicitor)

GLEESON CJ:   Mr Hayes and Mr Basten, there is, as I understand it, a preliminary application and it would suit us to deal with that first.  That is your application, Mr Basten.

MR BASTEN:   It is, your Honour.  There was a notice of motion seeking to have the matter dealt with on a preliminary, discretionary ground.  On that motion, your Honours, I read an affidavit of Mr Murray Bruce Belcher of 30 April 2001.

GLEESON CJ:   Any objection to that, Mr Hayes?

MR HAYES:   No, your Honour.

GLEESON CJ:   We have read that affidavit.

MR HAYES:   Yes, your Honour.

MR BASTEN:   Your Honours, the short points that we seek to make in relation to ‑ ‑ ‑

GUMMOW J:   Well, is dismissed – I am just looking at the relief you seek.

MR BASTEN:   Yes.

GUMMOW J:   Is dismissed the way to – it will be to discharge the order nisi, would it?

MR BASTEN:   Yes, it would.  I appreciate there was an order nisi made.  It would need to be discharged.

GUMMOW J:   Or would it be to ‑ ‑ ‑

KIRBY J:   Why discharge, or not adjourned or stood over with an indication that that does not stand in the way of the AAT proceeding with the matter?  I could understand the AAT might say, “So long as there is an order nisi we will not deal with this matter because it is before the High Court.”

MR BASTEN:   We would understand the reason for not discharging it to be that there might still be some question as to whether the Tribunal would grant an extension of time.  That is what presently stands between the prosecutor and that remedy.

KIRBY J:   We cannot usurp their exercise of their discretion in that respect.

MR BASTEN:   No.  I appreciate that.  The only question is whether a discharge of the order nisi to allow that course to be taken in the unlikely event that it could not eventuate would in any way prejudice the prosecutor from coming back to this Court.  We would have thought not, but if your Honours were of the view that the matter could appropriately be dealt with by standing the matter over to allow the prosecutor to avail himself of his rights in the Tribunal, at least until the Tribunal granted the extension of time, which one would think could be dealt with very shortly, then we would have no objection to that course.

GUMMOW J:   What is the actual empowering provision for the AAT to undertake an application here and the need for the extension of time?

MR BASTEN:   It is the time limit of 28 days which comes in the AAT Act, and I think it is in section 44.

GUMMOW J:   I thought it was 28, somewhere around there.

MR BASTEN:   Yes.  I think it might be further back.  I was taking your Honour to the power to review.  I think it may be 29.  I think it is 29.

GUMMOW J:   Subsection (3) or something.

MR BASTEN:   Subsection (3), yes.

GUMMOW J:   Subject to (2); 29(2) ‑ ‑ ‑

MR BASTEN:   Yes, that is so, subject to subsection (3), which does not ‑ ‑ ‑

GUMMOW J:   It is 28 days.

MR BASTEN:   It is 28 days from the date ‑ ‑ ‑

GUMMOW J:   Where is their power to extend the prescribed period?  Subsection (7), is it?

MR BASTEN:   Yes, (7), your Honour, is the ‑ ‑ ‑

GUMMOW J:   And (8).  Subsection (8) is quite important.  You can apply after the 28 days.

MR BASTEN:   Yes, that is so, yes.

KIRBY J:   It is a very long delay, of course.  I mean, are we talking about a real prospect that the Tribunal would proceed with the matter?

MR BASTEN:   I would have thought it could be put in the reverse, your Honour.  I would not have thought there was a real chance it would not.  The delay in this case is accounted for by the fact that both parties were under a misapprehension as to the existence of the certificate.  The matter of Karm Singh was only decided last October.  That matter, I think, has already been the subject of proceedings in the Tribunal.  If the Minister consents, as he has indicated he will, I would not have thought there was any likelihood of the Tribunal not reviewing the matter, but as your Honour puts quite correctly, it is a matter for the Tribunal and there is a discretion to be exercised. 

KIRBY J:   The argument that is put against it is that the order absolute would grant the applicant/prosecutor immediate liberty. 

MR BASTEN:   Yes, depending on when it was made.  But that involves, really, the question about the benefit to the prosecutor from that.  That would presumably mean there had been no decision made.  The matter would go back for reconsideration.  That is obviously a factor which might be taken into account.  We accept that.  Unfortunately, that would simply raise a question as to who was likely to get to the mark quicker, the court or the Tribunal, on the assumption that a favourable decision might be forthcoming from either.  What we say in response to that was that we offered – if it were necessary, we made it clear that the prosecutor had the right to go to the Tribunal last December, and any delays since that time is at least, in part, in his hands.  He did not seek to avail himself of that right then.  We would not think that was a reason why this Court should embark upon a full merits review of it, in order to avoid what might even on one view only be a further delay in the resolution of the matter. 

KIRBY J:   There is no way we would embark on a full merits review where we have not that jurisdiction. 

MR BASTEN:   I am sorry, I may have said that.  A full review of the matter on the constitutional basis. 

KIRBY J:   That is better. 

MR BASTEN:   I am so sorry. 

HAYNE J:   Is there any submission or suggestion you make to us about how long the AAT process might take? 

MR BASTEN:   Your Honours, we would think that the resolution of the extension of time could be dealt with within a matter of a month or so, especially if an application were made separately in that regard, as one would imagine was appropriate.  In relation to the substantive merit review, as best we understand it, and knowing what one can find out about the Brisbane jurisdiction, which is where it is likely to be heard, it might be anytime between three months and a year. 

GLEESON CJ:   Yes, thank you, Mr Basten.  Yes, Mr Hayes.

MR HAYES:   Your Honours, our submission in opposition is largely set out in our submissions in reply in the first section.  We make these points; we can make them shortly.  If we are able to proceed with the substantive application, there is a chance that our client will get finality.

KIRBY J:   Well, it would be, first of all, delayed finality, during which time you might have been able to get to the Tribunal and had a decision on the merits there; secondly, it is qualified finality, because this Court deals only with the jurisdictional question; and, thirdly, it is not final finality, because the Minister has powers, and duties perhaps, to reconsider the matter, even if the order that he has made is set aside.

MR HAYES:   It is final, at least, on a temporary basis, depending on what happens next.

KIRBY J:   Temporary and delayed.

MR HAYES:   Delayed would work, we would say, against us here in that our client has already spent something like two and a half years in some kind of limbo detention.  You now have to go back to the AAT and then, potentially through the various hoops after that, which might involve the Federal Court, the Minister, or back to the High Court.

KIRBY J:   But the relief in this Court is discretionary and is it not a primary question in the exercise of the discretion that there is a merits review available?

MR HAYES:   Yes, it is, and what we say goes against that here is that when the order nisi was obtained, we were in the undoubtedly right place, the Minister embarked upon a course.  Based on that, we took steps, including obtaining the order nisi.  The Minister then said, accepting the decision of the court, as he had to do, you can now go to the AAT, where the effect of the particular certificate was going to be that you could not go there.  So we have acted, leaving aside the period after December, when, I might say, we wrote back to those communicating with us on behalf of the Minister to say, well, why do you not vacate the decision, that will short‑circuit the process and then look at it afresh?  The Minister declined to do so.

So my client, in detention, in a difficult state of legal and factual limbo, faced with substantial delay, whichever way it goes, who acted perfectly in accordance with proper legal procedure as the law stood in seeking the order nisi, now finds himself back, like a game of Snakes and Ladders, to the AAT, which has already made a decision on the merits, albeit under a different section, but it is hard to see the AAT deciding it differently.  All there has been since then is two and a half years of further detention.  So you then get back to the Minister again.

GAUDRON J:   The AAT has not considered this decision, has it?

MR HAYES:   It has not, but ‑ ‑ ‑

GAUDRON J:   It has considered only the deportation decision.

MR HAYES:   It has, your Honour.

GAUDRON J:   Which ‑ ‑ ‑

MR HAYES:   Is a different decision, as your Honours have said, but, nevertheless ‑ ‑ ‑

GAUDRON J:   Which has been set aside?

MR HAYES:   Which has been set aside.  The point I was making, your Honour, was that the reasons and the factors which the AAT applied in that are likely to be relevant to this merits review.

GUMMOW J:   But you can put on fresh material, can you not?  It is a merits review.

MR HAYES:   Yes, it is, your Honour.

KIRBY J:   The points you have raised would seem at least arguable as relevant to the question of whether the AAT would expedite the hearing of the matter.  There are powerful reasons, I would have thought, without wishing to interfere with the AAT, for expediting the disposal of the matter before it.  After all, it is not really your client’s fault that this supervening decision came up and he was caught between the two jurisdictions.

MR HAYES:   The AAT might be in the difficult situation, of course, of doing a merits review where there is still in existence an order nisi granted by the High Court, which is another complicating factor.

KIRBY J:   Yes, but do you ask us, if that choice has to be faced, to discharge the order nisi or to stand the matter over with an indication that it ought not to stand in the way of the application to the AAT?

MR HAYES:   We would ask for the latter course.

KIRBY J:   I would have thought you would, so I would not think you would make a lot of point on the fact of an order nisi.

MR HAYES:   Just making the point, your Honour, that whilst, of course, we would make that point, the situation then is that when the AAT comes to look at the matter, it has an extant order nisi sitting there.  That is the only point I am ‑ ‑ ‑

GAUDRON J:   Well, I think, perhaps, one is at cross‑purposes here.  The matter could be stood over until a decision as to the extension of time were made.  You would not extend it beyond that, I should not think.

MR HAYES:   Your Honour, we would be after any extension or maintenance of the present position that we could persuade the Court to do, but I do not want to repeat, so I will put this finally and shortly.  We get out of gaol, on one view, if the Court comes down with the decision that we ask for on this application.

In circumstances where we have spent two and a half years in some form of limbo, where the procedure that we adopted was, on anyone’s view, the correct procedure to adopt at the time, where the Minister had deliberately embarked upon a course, perfectly correct depending on the reasons for it, of excluding the AAT review, whereby the change in the view of the court of the value of the certificate has caused the Minister then to say, “Well, you go to AAT where we tried so hard to stop you”, and then we say, “Well, why do you not vacate that decision so the process can be looked at afresh and speed up the process”, the Minister says, “No”, in circumstances where, if we succeed here, we get some kind of finality, albeit of a limited and temporary kind, in our respectful submission, that makes this different from the usual case where of course the Court would exercise its discretion not to go ahead and hear the matter if there were alternative remedies available.  That is the way we put the matter, your Honours.

GLEESON CJ:   Thank you, Mr Hayes.  Yes, Mr Basten.

MR BASTEN:   I do not have anything ‑ ‑ ‑

GUMMOW J:   Well, what do you say about costs?  You are loudly silent on your motion.

MR BASTEN:   Your Honour, up to a reasonable period after 7 December the costs should be theirs.  Thereafter, they should be ours.

KIRBY J:   That means the costs of the hearing would be yours.  That does not seem just.

MR BASTEN:   The costs of this hearing, your Honour?

KIRBY J:   Yes.

MR BASTEN:   Well, it might mean that in substance there would be no order as to costs.

HAYNE J:   All this stemming from the certificate which the Minister gave.

MR BASTEN:   Yes.

HAYNE J:   Or purported to give.

MR BASTEN:   Purported to give and did not give.  We did not seek costs.  We say nothing further about them.

GLEESON CJ:   We will adjourn for a short time to consider the course we will take in this matter.

MR BASTEN:   If the Court pleases.

AT 4.00 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.07 PM:

GLEESON CJ:   The Court is of the opinion that the return of the order nisi should be stood over to a date to be fixed.  It has reached that opinion noting that the Minister will consent to an application by the prosecutor for an extension of time within which the prosecutor may apply to the Administrative Appeals Tribunal for the review of the decisions of the Minister made on 19 October 1989.  The Court stands the matter over on the clear understanding that the existence of the order nisi does not, so far as this Court is concerned, constitute a reason for the Administrative Appeals Tribunal not to hear and determine the application for extension of time and, if that is granted, the review.

Each side has liberty to apply to re-list the matter before a single Justice of the Court at any time after seven days from the decision of the Administrative Appeals Tribunal on the application for an extension of time.  All questions as to the further disposition of the matter including costs are reserved for the decision of the single Justice in the event that the matter is so re-listed.

AT 4.09 PM THE MATTER WAS CONCLUDED