Mam v Minister for Immigration and Citizenship

[2009] HCATrans 306

[2009] HCATrans 306

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M68 of 2009

B e t w e e n -

SOKUNTHY MAM

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Application for an order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 24 NOVEMBER 2009, AT 9.29 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the plaintiff with MR N.C. POYNDER.  (instructed by Clothier Anderson & Associates)

MR R.C. KNOWLES:   Your Honour, if it pleases the Court, I appear for the defendant in this matter.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Game.  Mr Game, your client’s proper family name - how should I refer to him, as Mr Mam or Mr Sokunthy?

MR GAME:   Mr Mam.

HIS HONOUR:   Mr Mam.

MR GAME:   We discovered that at the same moment.

HIS HONOUR:   Well, it would be unfortunate not to – formally not to refer to him appropriately.  Mr Game, before you begin, I have looked at the papers.  I do not profess to have yet the familiarity with them that I should.  Can I tell you where I am going at the moment and then fill in some intermediate steps?  The immediate question that confronts me is, one, to put it bluntly, about efficient use of Court time.  Is it in the long run more efficient, is the question for me, for me to refer the hearing of the application for relief immediately into a Full Court, that is, the question for me will be whether it would be more efficient to have the matter tried once without possibility of appeal by a Full Court?

Now, there are some intermediate steps that would need to be considered in connection with that issue.  First, on the face of it that would seem to be not appropriate, probably not efficient, if there were to be some disputed issue of fact between the parties requiring trial and findings of fact.  Trial and findings of fact are, I suspect, better done before a single Justice than committed for trial before a multiple court.  Two, if I were to be considering these questions there are several possible ways in which it might be done:  one, simply make the proceedings returnable before a Full Court; two, formulate some section 18 case if some question could be conveniently segregated as dispositive of the whole matter, or have the parties create some special case or myself to state a case.

My present uninformed and extraordinarily tentative view is that if I were to consider this, the most efficient way would be simply to refer the matter in for trial before a Full Court as it now stands, but that assumes there is no lively, or live rather, question of fact requiring trial and determination.  Now, that is a very long and windy introduction, Mr Game.

MR GAME:   It occurred to me that your Honour might raise the question of referring it into a Full Court.  Nine years ago, it does not seem like that, but I did a case before Chief Justice Gleeson which was a bias case in the bifurcated relief circumstances where the man’s case had already been rejected in the Federal Court.  His Honour sat, as your Honour is sitting, but referred it into a Full Court by the process of the consent of the parties that the transcript be put before Justices – it may have been yourself, Justices Gummow and Gaudron, or yourself and Justice Gaudron, and then the decision was a decision of the Court although two of the Judges never physically sat but read the transcript.  I would imagine that if that slightly unusual course was – but that was in a different situation because the Rules had not been amended, and I am not sure once an order nisi had been granted that order could have been made by a single Judge.  It certainly was not the practice for single Justices to determine such cases to finality before Part 25 ‑ ‑ ‑

HIS HONOUR:   Rule 25.03.3(b) would be the power to put it into a Full Court.  I must confess a degree of reluctance about simply, in effect, requiring others of the Court to determine the matter on the papers without the opportunity to engage in that debate which counsel so much enjoy.

MR GAME:   This was a very different situation because there was a transcript of his evidence before the Tribunal and it was just a question of whether or not the Tribunal had demonstrated bias, whereas this case by some extraordinary circumstance, we have only got the primary decision‑maker and we are here.

HIS HONOUR:   Yes.  Step one is, is it plain that this matter cannot be remitted?  I understand both parties contend that this is a case of a kind which the Court dealt with in MZXOT and it cannot be remitted.

MR GAME:   It is an MZXOT case, your Honour.

HIS HONOUR:   Yes.

MR GAME:   So it cannot be remitted.  Now, in terms of questions of fact, there are questions of construing what the decision‑maker did, but that is an ordinary practice for a court and there are no witnesses.  In our case there are just the 16 exhibits to the affidavit of the instructing solicitor.  The affidavit does no more than explain the provenance of those documents, and I think that the Minister wishes to put before you a guideline, and I think that is about the evidence in the case.

HIS HONOUR:   The determinative question as I presently understand it revolves around the notion of acceptable business practice.  It may involve a question about acceptable according to whose standards, Australian or Cambodian standards, and it may involve a question about acceptability of business practices of not registering as a business and not paying tax.

MR GAME:   Yes, the question will ultimately be how you construe – or what you say about - what one says about the proposition that the criteria was not satisfied because the law was not complied with, it was said, even though the law was not enforced because that was not said to be relevant.  Now, I know there are a lot of other issues but ultimately it is something close to that question, which does raise – the nearest analogy I can think of is the complexities one gets into in double criminality in extradition, or that kind of thing, where you are talking about two different social circumstances, but, yes, that is the question, your Honour.

HIS HONOUR:   The analogy I fear I brought to mind, Mr Game, was an analogy with societies in which laws relating to not just taxation but, for example, use of certain substances, dealing in transactions involving human beings are not enforced, and that analogy is not one – or those analogies are not ones which might work to the advantage of your side of the argument.

MR GAME:   No, no, I understand, there is a hard end to this discussion, but whether the hard end is reached before your Honour or before a Full Court is a question of the Court’s time.  Obviously, my client is an individual, but the Minister’s ‑ ‑ ‑

HIS HONOUR:   Mr Mam is not in this country ‑ ‑ ‑

MR GAME:   He is not in this country, no.

HIS HONOUR:   Yes, of course, for Mr Mam this is a matter of urgency, but there is not the additional urgency presented by questions of detention.

MR GAME:   No, your Honour, not at all.

HIS HONOUR:   Yes.

MR GAME:   The case has been dealt with expeditiously to date so there is no problem of that kind.  In terms of costs, we have missed out on the Tribunal, the magistrate, the Federal Court, so costs have overall been somewhat less than they might have been.  I may have to take some instructions very briefly if I can, but obviously the Minister has an interest in putting its position on this, but we do not see that there are any factual issues.  We think there is a particular question that is ultimately a question of some substance.  There is this other question about – again, it is a question of construing the documentation – whether or not the decision‑maker got to the point where in that last letter he demonstrated

apprehended or actual bias, and that is another question, that is just a question of construing ‑ ‑ ‑

HIS HONOUR:   Yes.  Well, Mr Game, you may perhaps take the opportunity to seek whatever instructions you would need.  In the meantime, Mr Knowles, what is the position of the Minister in relation to the matters that I have raised?  First, from the Minister’s point of view is there any dispute of fact that would require trial in the ordinary fashion?

MR KNOWLES:   No, your Honour.  The affidavit material that is before the Court, as my learned friend has stated, is simply an affidavit of my learned friend’s instructor.  The defendant does not seek to put on any further affidavit material.  That is sufficient, and there is no dispute about the provenance of the documents either.

HIS HONOUR:   There is no objection to the receipt of any of the documents or to any part of the affidavit?

MR KNOWLES:   No, your Honour.

HIS HONOUR:   Do you then, on behalf of the Minister, seek to put any position about whether I should consider exercising the power under 25.03.3(b) to refer the application for further hearing by a Full Court?

MR KNOWLES:   The Minister does not have a position about that, your Honour.

HIS HONOUR:   No.

MR KNOWLES:   Essentially, the Minister is in the Court’s hands on that point.

HIS HONOUR:   Yes.  Thank you, Mr Knowles.  Mr Game.

MR GAME:   Well, your Honour, our position is pretty similar to the Minister, which is that if your Honour is of the view that it should go to a Full Court then we will not oppose such a course.

HIS HONOUR:   Yes.

MR GAME:   Mr Mam obviously wishes to have his case dealt with, but there is a certain short-sightedness in me saying it should go on today because even if we were successful there is no guarantee that the Minister would not appeal, or if the Minister was successful that we would not, so finality is preferable, I would have thought, your Honour.

HIS HONOUR:   Having regard to the circumstances that the material upon which the parties seek to rely in support of and in opposition to the application brought by Mr Mam is complete and undisputed, I am of the opinion that it would be the more efficient course to exercise the power under rule 25.03.3(b) of the High Court Rules and refer the application for further hearing by a Full Court.  The costs of today should be costs in the application.

I am not in a position to say to the parties when it is likely that the case will be fixed, but it is not beyond possibility that it would be fixed in the February or March sittings of the Court next year.  There is, I think, no occasion to give any further direction in relation to the matter, but against the possibility that some unexpected turn of events requires further direction by the Court, I will reserve liberty to either party to apply on not less than three days notice in writing to the opposite party.  Implicit in those directions is the assumption that the parties are content to rely upon the written arguments as they have thus far been filed as outlines of the arguments they would seek to advance in the Court.

Subject to anything that counsel may say as to the form of the orders, there will be orders in those terms.

MR GAME:   If the Court pleases.

AT 9.44 AM THE MATTER WAS ADJOURNED