Luu, Ex parte - Re MIMA
[2003] HCATrans 672
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M72 of 2003
In the matter of -
An application for Writs of Habeas Corpus, Mandamus, Certiorari, a Writ of Prohibition, Injunction and Declarations against THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent
Ex parte –
MINH DANG LUU
Applicant/Prosecutor
HAYNE J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
FROM MELBOURNE BY VIDEO LINK TO CANBERRA
ON MONDAY, 28 APRIL 2003, AT 3.01 PM
Copyright in the High Court of Australia
MR G.S.S. KUEK: If the Court pleases, I appear for Mr Luu. (instructed by Access Law)
MR C.J. HORAN: If the Court pleases, I seek leave to appear for the prospective respondent in this matter. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes, Mr Kuek.
MR KUEK: Thank you, your Honour. Your Honour should have a number of documents sent to you earlier today. They comprise, firstly, an affidavit affirmed by myself today and to this is exhibited five exhibits. The last exhibit in that material, your Honour, is an outline of argument that we propose to rely on in the event that this application is successful and Mr Luu is given leave to proceed with his application for constitutional relief. I would not wish to take that part of the argument any further, your Honour. I rely on the written submissions that are set out in there. Your Honour, insofar as the power to grant this interim application is concerned, may I refer your Honour to ‑ ‑ ‑
HIS HONOUR: I do not think there is any doubt that I have power to make orders that would restrain the Minister from effecting deportation. Subject to anything that you may wish to add to that, I am not, for the moment at least, troubled about any question of power to make an order. At the moment the difficulties I have concern whether I should make any such order. Can I just see if I understand the basis on which the application for interim relief proceeds. First, I understand it is an application for interim relief to hold the present status quo pending hearing and determination of application for constitutional relief; is that right?
MR KUEK: That is correct, your Honour.
HIS HONOUR: And the constitutional relief which you would seek is, as I understand it, that set out in the draft order nisi. Do you have that?
MR KUEK: Yes, your Honour.
HIS HONOUR: Now, four forms of relief are sought: first, orders the effect of which would be to have Mr Luu released from detention; second, certiorari to quash the deportation decision and the AAT’s review of that decision; third, relief directed to restraining or preventing the Minister detaining the applicant; and then the last is any other relief that may be appropriate. Now, am I right in understanding that the deportation decision referred to in paragraph II(b) of your draft order nisi was the subject not only of application to the AAT but also proceedings in the Federal Court?
MR KUEK: That is correct, your Honour.
HIS HONOUR: And are those proceedings in the Federal Court reported as Minh v Minister for Immigration (1998) 86 FCR 304?
MR KUEK: I have seen that particular report, your Honour, but I believe that it is the same.
HIS HONOUR: I would understand that in those proceedings there was a complaint framed differently from the way the current complaint is framed about giving Mr Luu procedural fairness in the course of the AAT proceedings challenging deportation; is that right?
MR KUEK: Your Honour, I was not involved in those proceedings but my cursory look at the reasons for decision from the Internet suggests that your Honour has summarised the situation correctly.
HIS HONOUR: Then can I put the difficulty I have this way. First, there have been proceedings challenging the decision to deport. Those proceedings were in the AAT and then again in the Federal Court and those proceedings failed; is that right?
MR KUEK: Yes, your Honour.
HIS HONOUR: If the decision to deport is not infirm legally for some reason, or if Mr Luu is now in a position where he can no longer mount a challenge to the legal sufficiency of the decision to deport, what then is the basis on which you would have me interrupt the deportation?
MR KUEK: The basis, your Honour, is this. Since the AAT made its decision and since the Federal Court affirmed the AAT decision, new facts have now emerged that make it plain that at the time the AAT made its decision the prospect of Mr Luu being deported from Australia were extremely low, and we say that the failure of the Minister to inform us of that fact prevented us effectively from relying upon it in our application to the AAT to set aside the deportation order.
In our submission, your Honour, that constitutes a denial of natural justice because it prevented us from addressing an issue that was relevant and significant in the making of the deportation order and its affirmation by the AAT. Because of the fact that the difficulty in deporting him was not made known until about April/May 2001, we were unable to rely upon that fact in our application to the Federal Court either.
HIS HONOUR: So you say there is a denial of natural justice there. What consequence follows from that, do you say?
MR KUEK: We say, your Honour, that a denial of natural justice goes to jurisdiction. It vitiates the decision that was made by the Minister and the AAT and therefore the decision of deportation was null and void from the beginning. If we are right in this, your Honour, it entitles Mr Luu to the relief that he seeks.
HIS HONOUR: Yes.
MR KUEK: I accept that there is a difficulty that confronts us and it is posed in section 206(2). The difficulty with that provision, your Honour, is that – at the end of the written submissions, your Honour, there is in fact a printout of relevant sections of the legislation. Section 206(2) says:
The validity of an order for the deportation of a person shall not be affected by any delay in the execution of that order.
What we say, your Honour, is that for this provision to be capable of saving the deportation order the order must, first and foremost, be valid in the first place. If it was invalid, then this provision does not save it. We then turn, your Honour, to subsection (1) which says:
Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly.
We put emphasis on the word “accordingly”, your Honour. It does not mean eventually or when the Minister pleases or at his leisure. We say that the gloss to be put on that provision is that it must be done soon, it must be carried out as soon as practicable or immediately. We say that Mr Luu has been in detention now for almost six years. On any count, your Honour, his deportation has gone beyond the period which might justifiably be said to be reasonable and it was not until ‑ ‑ ‑
HIS HONOUR: Now, on 27 November 2002 the Full Court of the Federal Court dealt with an appeal from the decision of Justice Marshall concerning two decisions the Minister had made about, in effect, maintaining the detention of Mr Luu; is that right?
MR KUEK: That is correct, your Honour.
HIS HONOUR: What, if any, consequence or significance follows from the Federal Court dismissing the appeal against Justice Marshall’s decision refusing the challenge to the decision to keep him in detention?
MR KUEK: Two things, your Honour. The first is until set aside the decision is valid and must be complied with. Secondly, we say that the Full Court did not deal with the argument which is now sought to be mounted in this Court. That is to say the deportation order was invalid. We say that provided Mr Luu is able to show a prima facie case, or at least an arguable case, he should not be shut out from this opportunity. Your Honour, if I can perhaps usefully refer to an exhibit which is exhibited to an affidavit of Ms Jackie Davis. It is exhibit No 2. I am not sure if your Honour has that.
HIS HONOUR: I read it before I came to Court. Yes, I have it.
MR KUEK: It is useful to note paragraph 2 of that letter, your Honour:
as a result of your deportation, you will be permanently barred by Australian law from returning to Australia.
HIS HONOUR: Sorry, that is exhibit 2 to Ms Davis’s ‑ ‑ ‑
MR KUEK: Jackie Davis’s affidavit.
HIS HONOUR: Of 28 April?
MR KUEK: Yes, your Honour.
HIS HONOUR: Yes, I see that.
MR KUEK: I have to concede, your Honour, that pursuant to a decision by Justice Stephen in a case of Simsek v MacPhee 148 CLR 636 – if I may refer your Honour to page 641 at about line 10 or 12:
If the power of deportation which Parliament has given to the Minister is to be interfered with in a case such as the present, where the applicant neither denies that he was a prohibited immigrant nor contests the validity of the making of the deportation order itself, the applicant must in my view first make out a prima facie case for injunctive relief in accordance with the principles referred to in Beecham Group Ltd –
and so forth.
Against that, your Honour, is the clear and unambiguous language of the Full Court in the case of Tait v The Queen 108 CLR 620. At 624 his Honour Chief Justice Dixon says this:
We are prepared to grant an adjournment of these applications without giving any consideration to or expressing any opinion as to the grounds upon which they are to be based, but entirely so that the authority of this Court may be maintained and we may have another opportunity of considering it.
In my submission, if there is tension between the Full Court decision and the opinion of Justice Stephen, your Honour should not refuse this application but allow it to proceed. But, in my submission, there is an arguable case to be made on behalf of Mr Luu. I put it in this way: if, for instance, the AAT was to consider a decision today whether or not to deport Mr Luu and if the AAT was told that it might take six years before Mr Luu can be deported from Australia and that in that period of time he would be kept in immigration detention, in my submission, the hardship cost to Mr Luu would be a consideration that goes to whether or not the AAT might or might not affirm the deportation order.
We say, your Honour, that if these facts had been made known to us in September 1997 they might have had a bearing upon the decision of the AAT. We do not go as far as saying that they would definitely have a bearing. All we have to show is that we were deprived of the opportunity of at least referring the AAT to those facts and putting submissions in reliance upon those facts in opposition to the deportation order being affirmed.
If I may, with respect, your Honour, put my argument in the alternative, it is this. There is support in a decision of the TAC v Bausch, a decision of the Court of Appeal. That is set out in paragraph 22 of my outline of argument, your Honour. I rely upon the extracts set out in that paragraph. I wish to stress that the role of the AAT is to decide what was a preferable decision in the circumstances pertaining to the applicant. In my submission, there was a very relevant and very powerful consideration that the Tribunal was not given access to. That, in my submission, also vitiates the decision.
HIS HONOUR: What consequence, if any, attaches to the fact that Mr Luu brought proceedings in the Federal Court to challenge the decision of the AAT? Those proceedings were on the grounds that then seemed appropriate to those who were then advising Mr Luu. That proceeding in the Federal Court failed and the AAT’s decision stood unencumbered.
MR KUEK: In my submission, no consequence, your Honour, because before Justice Weinberg these facts that we now know were not present. Mr Luu should not be precluded from arguing a case on material which the Minister had not revealed until 2001. To shut him out would bring disrepute to the administration of the law in this country.
HIS HONOUR: Finality is an important value which finds reflection throughout the law, Mr Kuek, and ordinarily parties are precluded from advancing further or additional grounds. Is there some problem of preclusion in your way in this case?
MR KUEK: We say, your Honour, that there is an exception in this case, the exception being that the facts that we now know were not available before the AAT, nor were they available before Justice Weinberg. These facts were made known only in 2001 when Justice Weinberg had made his decision in 1998. They were material that would have been unavailable to us had it not been for Mr Luu commencing his application before Justice Marshall. We say, your Honour, that there was a duty upon the Minister to reveal all relevant material and that, be it intentional or unintentional, his failure to do so deprived Mr Luu of a fair opportunity of opposing the deportation order successfully.
HIS HONOUR: Now, you said that this material became available before the proceedings before Mr Justice Marshall; is that right?
MR KUEK: Yes, your Honour.
HIS HONOUR: The Full Court decision in the matter of Luu v Minister for Immigration [2002] FCAFC 369 at paragraph 4 in the last sentence the earlier proceedings are noted and their Honours say:
There is now no issue about the validity of the deportation order.
What significance do I attach to that record of the position between the parties as far ago as November last year?
MR KUEK: Very little, with respect, your Honour. We say this in this way: it was not until 16 April this year that some hope, if I may put it that way, your Honour, was given to our side of the argument concerning the validity of detention orders that had run beyond what might be considered to be reasonable and it was not until the developments when your Honour adjourned the matter for further hearing without, of course, indications ‑ ‑ ‑
HIS HONOUR: I adjourned it because your side sought to make a wholly different case from the case it came prepared to make, Mr Kuek. To interpret that as a sign of hope is to read the entrails of the birds in ways that would do credit to the ancient soothsayers of Rome. I expressed no view.
MR KUEK: Well, I put it badly, your Honour. Can I put it perhaps in this way: we have not lost all hope in the arguments that were put on behalf of Mr Te. We say too, your Honour, that if the arguments put on behalf of Mr Te had merit, then likewise so far as the constitutional validity of legislation as 253 is concerned, that principle should apply equally to Mr Luu’s case. We say too, your Honour, that, like Mr Te’s case, there is a question of statutory construction which depends significantly on the word “accordingly” and how that informs on subsection (2) of section 206. But, more importantly, your Honour, we say irrespective of whether or not there is any constitutional bar, the point must be that Mr Luu was deprived of natural justice before the AAT because there was material he was not alerted to which could have turned the decision his way.
HIS HONOUR: Can I put the difficulty as succinctly as I may. It seems to me that the argument amounts to this. Detention is unlawful if the Minister cannot effect deportation quickly. Step two of the argument seems to be deportation is now imminent - quarter past midnight tonight. Step three seems to be therefore, which seems to cover the difficulties in the argument, the deportation decision is bad. Why is the deportation decision bad if intermediate detention were later to be established, as you would say it should be, to be unlawful?
MR KUEK: Because, your Honour, we rely upon step one, step one being that the deportation order was bad because it could not be effected within a reasonable period of time. We say, your Honour, that it must be implicit from the provision of section 51 of the Constitution that such legislation must be applied for the ‑ ‑ ‑
HIS HONOUR: “[P]eace, order, and good government”, yes.
MR KUEK: Yes, and we say it cannot be for the order and good government of the Commonwealth for a person to be detained whilst the Minister at his leisure negotiates entitlements to return to Vietnam.
HIS HONOUR: That seems to be an argument about detention, not an argument about the decision to remove someone from this country.
MR KUEK: It affects both, your Honour, particularly in circumstances where it is now plain the Minister was never going to release this man. At every step of the way, your Honour, when we applied to be released, the Minister refused. He came up with the same arguments again and again. There was nothing new ‑ ‑ ‑
HIS HONOUR: Which were upheld in the courts.
MR KUEK: Yes, your Honour, and we say wrongly too, with respect. I might be right, I might be wrong, but we say that it is not unarguable. These are matters that require and deserve further examination in the way that the Chief Justice in Tait’s Case considered appropriate. I do not say, your Honour, that my case as it presently stands is unarguable. I say this
case was prepared at haste and that necessarily because I am arguing this case as solicitor, not as counsel, and I do not have the benefit of assistance from others, I do not put the case which might seem to be perhaps a model case for such an exercise of discretion to occur. I say, your Honour, with respect, this is not a case which is hopeless. This is a case which might succeed.
HIS HONOUR: Do you accept that Mr Luu has been on notice since 3 April that it was anticipated that he would be deported at the end of April 2003? I am referring to paragraph 6 of Ms Davis’s affidavit.
MR KUEK: Certainly, your Honour, in terms of discussions between the AGS and myself and the Department and myself, the end of April was mooted as the likely date for him to be removed. It certainly was a way off but it was not until he received a letter from Stefan Mirenda which is exhibit 2, 15 April, that there was confirmation of his removal from Australia tonight. I say that should not be an obstacle to our application.
I say it in this way, your Honour. Whether Mr Luu had made this application a week and a half ago or today, the merits of the case would have remained the same. For that reason, your Honour, if Mr Luu’s application was to have failed a week and a half ago, it would fail today. If it is to be successful today, then it should have been successful a week and a half ago and that should not be a reason to dismiss his application. If your Honour pleases.
HIS HONOUR: Yes. Yes, Mr Horan.
MR HORAN: Your Honour, the applicant has not raised a serious issue as to the lawfulness of his deportation and, accordingly, the Court should refuse the application for an interim injunction restraining that deportation. Insofar as the draft order nisi challenges the deportation order, the first issue is that the applicant will require an extension of time to seek certiorari and the respondent submits now and would submit in opposition to the grant of the order nisi that the Court should not exercise its discretion to extend time. It is almost six years since the Minister made the deportation order on 9 May 1997 and approximately five and a half years since the Administrative Appeals Tribunal gave its decision affirming that order.
As your Honour has already noted, the applicant brought judicial review proceedings challenging the AAT’s decision and those proceedings were dismissed. For the past two years the applicant has been pursuing proceedings challenging decisions made by the Minister not to revoke the deportation order in conjunction with the proceedings challenging his decision not to release the applicant. As your Honour will know, those proceedings have been dismissed by the Federal Court and the Full Federal Court, although an application for special leave is pending from the Full Court’s decision.
Finally, the applicant does not have any prospect of success in challenging the deportation order. In that regard I would just address some brief points about the prospects of success but before doing so if I could just perhaps, without taking your Honour through the decision – I do not believe that your Honour would have a copy available, but I would rely upon, in relation to the extension of time issues, a decision of Justice McHugh in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491. At paragraphs [13] to [17] his Honour discusses the considerations that arise when considering an application for an extension of time and many of those relate to the concerns that your Honour has mentioned about finality, in particular finality of public acts and decisions. His Honour Justice McHugh firstly accepts that:
it is always necessary to consider the prospects of the applicant succeeding in the appeal.
He states that:
A “case would need to be exceptional” before the time for commencing proceedings was enlarged by many months. The explanation for such a delay is also a relevant consideration.
At paragraph [15] his Honour outlines the particular considerations that arise in relation to constitutional or prerogative writs which:
Are directed at the acts of decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts of decisions.
Now, that case related to a decision of the Australian Industrial Relations Commission and there was a delay of 17 months and his Honour observed that:
Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay.
To some extent that does raise for consideration the contentions made by the applicant about whether or not there was any failure to disclose relevant information which the applicant now relies upon to challenge the deportation order.
HIS HONOUR: What obligation of disclosure was there?
MR HORAN: The primary point is that the factual assertions that are made about the failure are incorrect in that there was no – the information that the applicant says he became aware of in 2001 relating to the intergovernmental arrangements for deportation were not an issue in relation to the making of the deportation order in 1997 and there is no evidence before your Honour today. To the contrary, the evidence before the Federal Court in the proceedings before Justice Marshall and before the Full Court established that the Vietnamese authorities only adopted the position that an intergovernmental arrangement was required before deportations would be effected. That position was only adopted in December 1999. The whole premise of the applicant’s case falls down if that factual assertion is not made out.
If I could refer your Honour to paragraph 23 of the applicant’s submissions. There the applicant sets out the four facts that are now said to give rise to the failure to accord natural justice in that the applicant was not made aware of those facts at the time of the AAT proceedings so that he could have relied upon those factors as militating against the affirmation of the deportation order. As I have said before, your Honour, the evidence is that those facts were not relevant issues at the time of the original deportation order or the time of the AAT decision, which was in September 1997, and it was only at that time – the principal reason why the deportation order was not carried out in the period between September 1997 and mid‑1999 was that the applicant had commenced a range of proceedings to challenge the deportation order and also lodged an application seeking the grant of a protection visa. So that it was not until February 2000 that the applicant made a written request to have his removal effected and it was only by that time that the problems had arisen as of December 1999 with the bilateral arrangements between the governments of Australia and Vietnam.
Now, your Honour, in the time available it has not been possible to put on a further affidavit concerning these matters but the evidence before the Federal Court clearly established that and if I could just, with your Honour’s permission, read the paragraph from the respondent’s contentions of fact of law filed before Justice Marshall ‑ ‑ ‑
HIS HONOUR: What assistance do I get from you embarking on that, Mr Horan? There is this exquisite dilemma. You are given short notice of these proceedings. The applicant mounts such case as he mounts. If I embark upon receiving assertions from your end of the Bar table, it may later be suggested that there was some disputable element in what is put and that, for that reason, whatever decision I may make founded on the applicant’s version of events is seen as tainted in that way.
At least for the moment, without shutting you out finally from seeking to advance some further factual material which might entail your solicitor or others leaping into the witness box, it may be better, I think, were you to confine your submissions to the factual foundation which the applicant’s material provides, recognising, as I do, that there may well be parts of that which, were the matter to go further, your side would seek to controvert. Does that leave you in a particular difficulty, Mr Horan?
MR HORAN: It does not because, putting to one side whether or not there is evidence to the contrary and the submission that there was evidence to the contrary put before the Federal Court, there is simply no evidence that the applicant puts before this Court to say that those facts were relevant or applicable at the time that the initial decision was made. The application for interim relief cannot succeed unless the applicant raises an arguable case that the deportation order was invalid. In order to do that, he has to show that he has prospects of succeeding in an application to extend time to challenge that decision, notwithstanding the delay and notwithstanding the dismissal of the earlier proceedings.
Insofar as he complains of a denial of procedural fairness by the Minister in making the original order on 9 May 1997, that decision has effectively been superseded by the consideration given by the Administrative Appeals Tribunal before which the applicant was given a full hearing. So that unless the applicant can establish an arguable case on material properly put before this Court that there was some aspect of the proceedings before the Administrative Appeals Tribunal which involved a denial of procedural fairness, he has not satisfied the burden of showing that he has an arguable case to challenge the validity of his deportation.
Insofar as he complains of the failure to alert him to the alleged fact that his deportation at the time that the order was made and affirmed in 1997 could not be carried out within a reasonable period, that is simply no more than an assertion on the material before this Court. In his submissions it is stated that it is evident that:
the applicant could not . . . be deported unless and until agreement was reached –
and so on, but it is not evident from anything other than that statement in the submissions. There is simply no evidence that at the time the original deportation order was made, there was anything preventing its implementation other than the fact that the applicant then took steps to appeal that decision to the AAT, then took steps to challenge it in the Federal Court, lodged a protection visa application, ultimately lodged proceedings challenging decisions to refuse his relief and not to revoke the deportation order, proceedings which, might I add, even if the applicant could establish – let us assume that the facts are the case, that those facts in paragraph 23 were shown by information that became available in the proceedings before Justice Marshall to have been applicable at the time of the original deportation order, it is now almost two years since that information was made available to the applicant and, as your Honour has pointed out, there was no issue raised in the Federal Court proceedings about the validity of the deportation order.
The challenge there was to a refusal to exercise a discretion to revoke the deportation order, which decision is premised on the validity of the deportation order. Despite the fact that the entire factual premise that is now relied upon was available before the Federal Court in those proceedings, it was never sought to rely upon that factual material to challenge the deportation order itself. Instead, the applicant has waited until the very last minute to bring these proceedings and does it on no material, on simply an assertion, and in circumstances where the applicant should not be entitled to the benefit of any doubt.
It is simply an attempt to frustrate the process at the last minute, which is particularly unusual in circumstances where the applicant has been complaining before the Federal Court for two years about delay in implementing his deportation and about uncertainty as to the date on which he could be deported. As soon as a definite date is fixed and he is told that he can be deported and he is given a date and a time, he then brings these proceedings at the last minute to attempt to frustrate that process, but he has not put any material which raises an arguable case concerning the deportation and your Honour should not be troubled at all in refusing an application for interim relief. Any issue which might be raised akin to the arguments raised in the Meng Kok Te Case would at most go to the validity of his detention in the intervening period and that would be a matter that could be addressed notwithstanding the applicant’s removal from Australia.
HIS HONOUR: Now, you have mentioned various features of the sequence of events as going to the discretion to extend time. Is there any question of preclusion?
MR HORAN: As your Honour has noted on previous occasions, there is a preliminary issue about whether or not such principles would apply in their strict terms to applications for prerogative or constitutional relief.
HIS HONOUR: Certainly where there are questions of validity at issue but, to the extent to which the proceedings do not raise questions of validity, other considerations may intrude.
MR HORAN: Yes. Even where constitutional challenges are raised to legislation, this Court has held on previous occasions that those constitutional arguments can be precluded by the principles of issue estoppel. In the University of Wollongong v Metwally litigation that occurred, the Federal Court, I think, adopted a similar approach in the case of Multicon Engineering. So there are reasonable arguments to suggest that it is open to the respondent to rely upon issue estoppel or Anshun estoppel to preclude the applicant from raising any further ground of review to the deportation order.
Of course, those principles are subject to some exceptions and presumably the matters that the applicant relies upon relating to the unavailability of information at the time that those earlier proceedings were brought might be relied upon in order to bring himself within an exception to the principles of Anshun estoppel.
HIS HONOUR: Can I just go back a moment to procedural fairness. As I understand it, a point you seek to make is that at the time of the Minister’s delegate’s decision or, if that were superseded by the AAT, as well may be the case, at the time of the AAT’s decision, there was no live issue raised between the parties about how or when deportation could be effected; is that right?
MR HORAN: Yes. I am told that there was an affidavit from the Federal Court proceedings which may have been faxed to your Honour. It is an affidavit of John Okely sworn on 27 April 2001 which ‑ ‑ ‑
HIS HONOUR: Yes, I have seen that.
MR HORAN: Unless it is exhibited to one of the affidavits in this proceedings, I am not sure that it is before the Court in formal terms. But, your Honour, the paragraph that I was alluding to earlier is paragraph 4 where Mr Okely says that in December 1999, discussions between the Department of Foreign Affairs with the Vietnamese embassy gave rise to, on the following page at paragraph 5, the indication that a formal return arrangement between governments was essential.
HIS HONOUR: Yes, I have read that.
MR HORAN: But there was not any evidence in the Federal Court proceedings that the problem was applicable at any stage earlier than December 1999. Of course, the applicant was rather unlucky in that it was
only in February 2000 that he purported to drop his opposition to his deportation being carried out and gave a written request for his return to Vietnam. At that stage, of course, the problems between governments had arisen which gave rise to the issues which were litigated in the Federal Court proceedings. Again, I repeat that at no stage during those proceedings was any attempt made to rely upon the facts which were revealed in those proceedings to mount any challenge to the deportation order. I think, your Honour, that is all I can say in opposition to the application.
HIS HONOUR: Yes, thank you, Mr Horan. Yes, Mr Kuek.
MR KUEK: Your Honour, Mr Horan made a number of assertions of fact without support of affidavit material. May I refer your Honour to a number of documents which are in front of you. The first is my affidavit. If I may refer your Honour to paragraph 7 of my affidavit, that refers to draft affidavits by Mr Luu. That is exhibited as GK‑3. Now, GK‑3 says this, amongst others, at paragraph 14:
On 20 April 2001, by facsimile, the Department provided to Mr Kuek a statement of the Minister’s reasons for his decisions.
That is a proposed exhibit to his affidavit, your Honour, MDL‑14. Now, MDL‑14 is one of the three documents that was faxed to your Honour today.
If I may now turn to the reasons for decision, your Honour. At the third page at paragraph h) the Minister said:
I noted the previous attempts made by my Department to obtain a travel document for Mr Luu to effect his deportation, and the Vietnam Government’s request in December 1999 for a Memorandum of Understanding (MOU) between the two countries to be concluded before attempting the resolution of any individual cases.
The rest of paragraph h) deserves reading, your Honour. Then at the bottom of that page under j) and then (i) “Request for revocation of deportation order under s 200” the Minister said:
I noted that it is likely that a MOU will be concluded with Vietnam later in the current year in relation to the return to Vietnam of criminal deportees.
Then the next page, (ii):
Bearing in mind the progress made towards the establishment of an MOU with the Vietnamese Government –
and he then explains why he refuses to release Mr Luu.
The question might be asked, your Honour, why has it taken the Minister so long to realise that the Vietnamese Government require an MOU before it will accept people back to Vietnam? At the time the Minister made his decision it was almost four years since Mr Luu was taken into detention. At the very least, your Honour, it must be supposed the Minister was very inactive in securing Mr Luu’s return to Vietnam. That speaks about the validity of the deportation order. I then refer your Honour to paragraph 19 of Mr Luu’s draft affidavit:
The Minister resisted my application. An affidavit sworn by [John Cameron Okely] –
I apologise, your Honour, the draft had “James Robert Williams” and that is wrong.
HIS HONOUR: That correction was made on the copy I saw.
MR KUEK: Thank you. Now, that document is MDL‑16. In fact, here were two affidavits and they were also sent to your Honour. Paragraph 1 of the affidavit of 22 April says this:
I am responsible for, among other things, the conduct of negotiations between the Australian Government and the Government of the Socialist Republic of Vietnam on the conclusion of a Memorandum Of Understanding (MOU) between the two governments on the matter of the removal from Australia of persons who are Vietnamese Citizens and who no longer have a right to remain in Australia.
HIS HONOUR: Yes, I have read that. What is the point you seek to get from those affidavits?
MR KUEK: The point, your Honour, is that it was not until these documents were shown to us in April that we became aware of the difficulties of deportation to Vietnam.
HIS HONOUR: And that is in April of what year?
MR KUEK: 2001.
HIS HONOUR: And if then the clock were to properly be regarded as commencing then, why are you not too late?
MR KUEK: We need leave of the Court, your Honour. We say leave is warranted in this case because of the fact that there was in fact a Full Federal Court decision at the time, a matter of Vo, which held that the length of detention of itself does not undermine the legal validity of the deportation order. We were confronted with that, your Honour, and the wisdom of counsel was that that point was not to be argued.
We were also confronted, your Honour, with section 206(2) which preserved the legality of a deportation order, notwithstanding an inability or delay in effecting it. Now, your Honour, it was not until 16 April that the view – that we had changed somewhat. I wrote to Mr Luu on 17 April informing him of what had happened in Meng Kok Te. He did not receive my letter until last Thursday and it was when he received my letter that he telephoned me to instruct me to proceed with this application.
I did not receive that information until about 5 pm and I telephoned Ms Davis because of that. In this respect, may I refer your Honour to paragraph 30 of the draft affidavit of Mr Luu and also to my affidavit at paragraphs 5 and 6. So Mr Luu could not be said to have sat on his rights. He was awaiting legal advice. He was mindful not to commence an application that might not have merit. In those circumstances, particularly in view of the fact that there is certain finality in a deportation order - he cannot be returned to Australia again - your Honour ought to be slow to refuse his application for a stay. Your Honour should give him the opportunity of arguing this application for an order nisi more fully and with the assistance of counsel. Those are my submissions, your Honour.
HIS HONOUR: Yes, thank you.
Minh Dang Luu seeks interim relief directed to preventing his deportation from Australia which is to occur at quarter past midnight tonight. He seeks that interim relief pending the hearing and determination of an application he proposes to make to this Court for habeas corpus, mandamus, certiorari, prohibition, injunction and declarations.
The principal relief which Mr Luu would seek in this Court is framed as being, first, habeas corpus or an order in the nature of mandamus requiring Mr Luu’s release from immigration detention; secondly, certiorari to quash either a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs made under section 200 of the Migration Act 1958 (Cth) ordering the deportation of Mr Luu, or quashing the decision of the Administrative Appeals Tribunal made on 5 September 1997 affirming the delegate’s decision to order deportation; thirdly, he would seek prohibition or injunction precluding the Minister from taking any step to detain Mr Luu or otherwise to implement or give effect to the decision to detain Mr Luu in immigration detention; finally, any other declaratory, injunctive or other equitable relief as may appear appropriate is claimed.
Central to the claims which Mr Luu would make is the contention that the order for his deportation is legally infirm because it was made without according him procedural fairness. In order to understand the way in which the present application for interim relief and the proposed principal application arise it is necessary to describe a number of other proceedings which Mr Luu has brought in connection with the order for his deportation.
As long ago as 9 May 1997 a delegate of the Minister administering the Migration Act ordered Mr Luu’s deportation. That order was made, as I have indicated, under section 200 of the Migration Act as it then stood. Mr Luu had in the previous year been convicted of two counts of intentionally causing serious injury to another person and one count of intentionally causing injury to another and on 3 July 1996 he had been sentenced to three years six months imprisonment. A non‑parole period of two years and three months was fixed.
On 16 June 1997 Mr Luu was granted parole, but in consequence of the order that had been made for his deportation he was placed in immigration detention under section 253 of the Migration Act. Mr Luu challenged the deportation order by bringing proceedings in the Administrative Appeals Tribunal. On 5 September 1997 that Tribunal affirmed the decision of the delegate of the Minister ordering Mr Luu’s deportation.
Mr Luu then sought to appeal pursuant to section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) to the Federal Court of Australia. In that appeal he contended, among other things, that there had been a breach of the rules of natural justice in that the Tribunal had denied to him an opportunity to lead evidence and make submissions with respect to the circumstances surrounding the commission of the offences for which he had been ordered to be imprisoned. On 25 August 1998 Justice Weinberg dismissed the appeal. See Minh v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 304.
In December 1997, that is before the appeal to the Federal Court of Australia, the applicant had sought release from immigration detention under section 253(9) of the Migration Act, but that request had been refused. In July 1998, again before the hearing and determination of the appeal to the Federal Court of Australia against the Administrative Appeals Tribunal’s decision, Mr Luu applied for a protection visa under the Migration Act. That application was refused in June 1999 and that refusal was affirmed by the Refugee Review Tribunal in October of that year.
In February 2000, when Mr Luu had been in immigration detention for 31 months, he sought his immediate removal to Vietnam. That did not come about. In July 2000 he again sought release from immigration detention and in August 2000 he asked the Minister to revoke the deportation order. In March 2001 the Minister decided not to release Mr Luu from immigration detention and decided not to revoke the deportation order. Notwithstanding the fact that in February 2000 he had sought his immediate removal to Vietnam, Mr Luu made application under the Administrative Decisions (Judicial Review) Act for judicial review of the Minister’s decisions of March 2001.
On 17 August 2001 Justice Marshall of the Federal Court ordered that the application for review be dismissed. See Luu v Minister for Immigration and Multicultural Affairs [2001] FCA 1136. Mr Luu appealed to the Full Court of the Federal Court of Australia against the orders made by Justice Marshall. On 27 November 2002 the Full Court of the Federal Court dismissed that appeal. See Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369. In March 2003 Mr Luu filed an application for special leave to appeal to this Court against the orders of the Full Court of the Federal Court which had been made on 27 November 2002.
Mr Luu would contend that it was not until some time in 2001 that he became aware that officials of the government of Vietnam had indicated in December 1999 that it would be necessary for a memorandum of understanding between the government of Australia and the government of Vietnam to be concluded before individual cases of criminal deportation from this country to Vietnam could be resolved. Mr Luu would seek to contend that this information first came to his attention when he was provided, on 20 April 2001, with the Minister’s statement of reasons for his decisions of 12 March 2001 not to revoke the deportation order made under section 200 of the Migration Act and not to order the release from immigration detention, under section 253(9) of that Act, of Mr Luu.
At the core of the contentions which Mr Luu would seek to advance in this Court is the proposition that there was a want of procedural fairness in the decision to order his deportation constituted by the failure by the Minister to draw to Mr Luu’s attention the difficulties attendant upon effecting his deportation from Australia to Vietnam within a reasonable time. It is said that by not revealing this information there was a want of procedural fairness and that, for that reason, the decision to order deportation was made without jurisdiction and is not now effective.
It is evident from the statement of the course of the events following the first making of an order for deportation that the argument of want of procedural fairness is attended by considerable difficulty. Not least of those difficulties is that the basic requirements of procedural fairness are that the person to whom such fairness is to be accorded should have a reasonable opportunity to put the claim or case which he would seek to advance. Yet, in essence, what it is sought to contend in this matter is that the person to whom procedural fairness was owed should have been put in possession of material that would, had he been so advised, have permitted him to advance a case radically different from the case or claim which he in fact sought to make.
Secondly, it is also evident from the course of events that I have described that the argument which the applicant would seek to mount is one in which there is at least a very strong element of hindsight. Much of the argument amounts to the contention that, events having now revealed that deportation would take as long as it did, the Minister should at the outset have warned or informed Mr Luu of that possibility so that Mr Luu might have contended that deportation should not be ordered at all.
Thirdly, and more fundamentally, however, in his more recent proceedings in the Federal Court of Australia, Mr Luu sought to challenge the decision not to release him from immigration detention and the decision not to revoke the order for his deportation. Those proceedings in the Federal Court, as the Full Court noted, proceeded from the unchallenged premise that the deportation order that had been made was a valid order. Those proceedings in the Federal Court of Australia were, as Mr Luu now contends, conducted in full knowledge of what is now said to be critical information going to the validity of the deportation order that was made.
The question which I must determine is whether interim relief should go in order to preserve the status quo pending the full presentation of argument in support of the claims which Mr Luu would seek to make. Ordinarily, the need to preserve the status quo in order that arguments may fully be developed in the ordinary way will be a powerful consideration in favour of the grant of interim relief. No starker example of that can be found than that provided by Tait v The Queen (1962) 108 CLR 620.
Ordinarily, then little need be advanced to demonstrate that a sufficiently arguable case is made out to warrant the grant of interim relief. So overwhelming is the balance of convenience in such cases that orders of the kind now sought are sometimes made on the most exiguous material.
In the present matter there are two particular considerations to which it is necessary to refer. First, the material now said to be critical has been in the possession of the applicant and his advisers since at least April 2001, yet only now, less than one working day before his deportation, is it said that relief should be granted to prevent the occurrence of that event. Second, the application which it is sought to mount in this Court is one in respect of which extension of time under the Rules of Court would be required to grant certiorari and, perhaps, mandamus. Order 55 rule 17(1) prescribes that:
An order nisi for writ of certiorari . . . shall not be granted unless the application for the order is made not later than six months after the date of the –
proceeding which it is sought to challenge. Order 55 rule 30 provides that:
An application for a writ of mandamus . . . to a judicial tribunal to hear and determine a matter shall be made within two months of the date of the refusal to hear or within such further time as is, under special circumstances, allowed by the Court or a Justice.
It is unnecessary to consider whether the two‑month rule prescribed by Order 55 rule 30 would find application in a case such as the present. It is clear, however, that insofar as the applicant would seek certiorari, Order 55 rule 17(1) would be engaged and that, accordingly, the applicant would require an extension of time within which to institute that aspect of the proceeding.
In Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 at 496 [16] Justice McHugh said that:
The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.
On one view, perhaps the better view, the time for applying for prohibition commenced to run with the decision of the Administrative Appeals Tribunal on 5 September 1997. Even on a view more favourable to the applicant, however, time began to run for him to seek to make the case which he now would wish to advance no later than the middle of 2001, by which time he was apprised of all of the facts which he would now seek to say are relevant to the application he would advance.
When proceedings have been taken at first instance in the Federal Court, on appeal to the Full Court of that court, and, indeed, application made for special leave to appeal to this Court, all of them founded on the proposition that the order for deportation is valid, when the time is so long past within which application for prohibition could properly be made, can it now be said that there is an arguable case sufficient to support interim relief of the kind sought by Mr Luu?
Given the course of events that I have described, I am not persuaded that it is arguable that relief by order nisi would be granted. That is to say I am not persuaded that it is arguable that order nisi seeking relief challenging the validity of the order for deportation would, in all the circumstances of this case, be granted.
Insofar as the proposed application would seek to challenge the legitimacy of detention pending deportation, it is important to recognise that that aspect of the application is intimately bound up with the application to challenge the validity of the order for deportation. If the decision to deport Mr Luu is not arguably infirm – and in my view it is not – even if the detention of Mr Luu could be said to have been so prolonged that it became unlawful at some point, his detention now, less than eight hours before his removal, would, on any view, not be unlawful.
In all these circumstances, I am of the opinion that the application for interim relief should be dismissed. The order is application dismissed.
Yes, Mr Horan.
MR HORAN: I know, your Honour, I am not strictly a party to the proposed – well, insofar as there is a proposed order nisi application, but I am instructed to seek the costs of today’s application.
HIS HONOUR: Yes. Yes, Mr Kuek.
MR KUEK: In my submission, your Honour, there should be no order as to costs. The respondent appears by reason of being notified of this application. He does not have to be here. Secondly, your Honour, you have dismissed the application on discretion. Your Honour has not dismissed the application on merit insofar as your Honour did not go into any detail concerning the arguments that were advanced on Mr Luu’s behalf. In those circumstances, your Honour, the appropriate order is not to make any order as to costs.
HIS HONOUR: This application being an application for interim relief directed to restraining the Minister from effecting deportation, I am of the opinion that costs should follow the event. The order is application dismissed with costs. I will certify for the attendance of counsel. Adjourn the Court.
AT 4.38 PM THE MATTER WAS CONCLUDED
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