Min & Anor - Ex parte MIMA

[2001] HCATrans 107

Office of the Registry
  Sydney  No S48 of 2001

In the matter of -

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

First Respondent

DAVID McINTYRE in his capacity as a delegate of the First Respondent

Second Respondent

MICHAEL FERGUSON in his capacity as a delegate of the First Respondent

Third Respondent

Ex parte -

SOON-YOUNG MIN

First Applicant

CHA-SOEK LEE

Second Applicant

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 12 APRIL 2001, AT 9.36 AM

Copyright in the High Court of Australia

__________________

MR T. REILLY:   If the Court pleases, I appear for the prosecutors.  (instructed by Christopher Levingston and Associates)

MR R.T. BEECH-JONES:   If it pleases, I appear on behalf of the three respondents.  (instructed by Blake Dawson Waldron)

HER HONOUR:   Yes, Mr Reilly.

MR REILLY:   Your Honour, there is an affidavit in the usual form by Mr Levingston which attaches affidavits of the prosecutors and some other documents and I have put in written submissions.

HER HONOUR:   Yes.  Now, you move on those affidavits, do you?

MR REILLY:   I move on the affidavits, your Honour, and if I can just say ‑ ‑ ‑

HER HONOUR:   Well, let us see if there is any objection to any parts of the affidavit.

MR REILLY:   Yes.

MR BEECH‑JONES:   No, not for the purposes of this application, no, your Honour.  I have not seen my friend’s written submissions though.  I am sure that was some misunderstanding.

HER HONOUR:   Yes, when you say “not for the purposes of this application” ‑ ‑ ‑

MR BEECH‑JONES:   Being an interlocutory application.

HER HONOUR:   Yes.  I am just wondering how satisfactory a procedure that is.  Just assume for the moment that the prosecutors were successful, the matter would go forward on the basis of these affidavits.

MR BEECH‑JONES:   And subject to the respondents’ affidavits in reply - in response.

HER HONOUR:   Yes.

MR BEECH‑JONES:   If I am not making myself clear, your Honour, if I could come at it this way.  My friend and I had a discussion before he come on where I informed him that there is a great deal of contest on the facts ‑ ‑ ‑

HER HONOUR:   Exactly.  So ‑ ‑ ‑

MR BEECH‑JONES:   ‑ ‑ ‑ and I anticipated that that was something your Honour might want to have ironed out before it goes anywhere.  The other thing is your Honour may not be aware that they are not in custody, the prosecutors.  They are in the community on bridging visas.  I may have completely jumped the gun, but I just thought your Honour may want to be aware of those two matters.

HER HONOUR:   Yes.  Well, I can take it that the affidavits are not objected to for the purposes of these proceedings and you file no material in reply at this stage.

MR BEECH‑JONES:   At this stage, no.

HER HONOUR:   Yes.  Yes, thank you, Mr Beech‑Jones.

MR REILLY:   Your Honour, the arguable case is developed in my submissions.  Has your Honour had an opportunity to read those?

HER HONOUR:   Yes, I have.

MR REILLY:   There is four breaches of natural justice alleged and a jurisdictional error of law.  Does your Honour wish me to go ‑ ‑ ‑

HER HONOUR:   Yes.  I have only read it quickly, so perhaps you should.

MR REILLY:   Yes.  Your Honour, I attach after the submissions some extracts from the Migration Act and the Migration Regulations.

HER HONOUR:   It was a cancellation under 116(1)(a), was it?

MR REILLY:   It was under 116(1)(g), your Honour, in that ‑ ‑ ‑

HER HONOUR:   I see, yes.

MR REILLY:   ‑ ‑ ‑ at least condition 8202 - and I have noticed there is a recent amendment which may ‑ ‑ ‑

HER HONOUR:   Why is it not with 116(1)(b)?  I do not know.

MR REILLY:   It is in the sense that that was found, but your Honour will see that section 116(1) provides a discretion to cancel, whereas section 116(3) provides for mandatory cancellation.  Now, that is what we ‑ ‑ ‑

HER HONOUR:   I see.  So, as you understand it, it comes into 116(1)(g)?

MR REILLY:   Yes, and 116(3), and that is because at least in the case of condition 8202, which concerns being enrolled in a registered course, cancellation is mandatory.

HER HONOUR:   Where do I find that?

MR REILLY:   Where does your Honour find condition 8202 or the mandatory cancellation ‑ ‑ ‑

HER HONOUR:   Yes.  Well, where do I find the prescription?

MR REILLY:   Well, your Honour, as often happens in these matters, it has since been amended, so I cannot take your Honour to the loose‑leaf service but ‑ ‑ ‑

HER HONOUR:   Well, this Court does not operate on loose‑leaf services in this area.  They are too dangerous.

MR REILLY:   I am pleased to hear that, your Honour.  If your Honour turns to Schedule 8 to the Migration Regulations ‑ ‑ ‑

HER HONOUR:   Yes.  Have you annexed them to your submissions?

MR REILLY:   What I have done, your Honour, is in the affidavit of Mr Levingston ‑ ‑ ‑

HER HONOUR:   We have not the Regulations.  There may not be any dispute about this.

MR REILLY:   I do not think there is, your Honour.

MR BEECH‑JONES:   About what condition 8202 says?

MR REILLY:   Said.

HER HONOUR:   Well, where I find it and what it said at the relevant time.

MR REILLY:   Paragraph 5 of my written submissions quotes it at the end, your Honour.  The relevant words are “The holder must: (a)  be enrolled in a registered course”.

MR BEECH‑JONES:   Yes, there is no issue about that, your Honour.

HER HONOUR:   No, there was another condition.

MR REILLY:   Yes, there is, your Honour.

HER HONOUR:   That is a prescribed condition.

MR REILLY:   That is a prescribed ground.  Now, your Honour, I am a little embarrassed.  Condition 8105 was also mentioned, at least in the notices of cancellation, as a potential ground.  My impression was that that was not a prescribed ground of cancellation.  Certainly it was not until very recently, but I notice that regulation 2.43 has now been amended to include it as a prescribed ground of cancellation, in which case cancellation would be mandatory for a breach of condition 8105 as well, and that is really something I need to check.  If your Honour turns to ‑ ‑ ‑

HER HONOUR:   Well, I am not blessed with a set of the Regulations at the relevant date.

MR REILLY:   No.  Your Honour, that is something we will check, but at least in terms of our ‑ ‑ ‑

HER HONOUR:   Well, you should have checked it before.

MR REILLY:   Well, your Honour, I did.  The loose‑leaf service has now changed since when I looked at it last time.  If I can say the ‑ ‑ ‑

HER HONOUR:   At the relevant time.

MR REILLY:   At the relevant time, your Honour, it is something I need to do some research on.  If your Honour turns to page 18 of the affidavit of Mr Levingston - page 17 is the first page of the cancellation form.  Page 18 is the back page of that page.

MR BEECH‑JONES:   I am happy to lend your Honour my loose‑leaf service, if that is of any assistance.

HER HONOUR:   I do not think so.  One of these days somebody is going to ‑ I know it is the day before Easter and one should not quibble about these things, but since when does an affidavit start up, “I am solicitor for the Prosecutors”, without saying, “I so‑and‑so am the solicitor for the respondents”?  Since when has that little practice crept into the law?

MR REILLY:   My solicitor is here and I am sure he is taking careful note of what your Honour was saying.

HER HONOUR:   Yes.  Well, I have now found the affidavit, which, on the face of it, is by an anonymous person.

MR REILLY:   Yes.  My apologies for that, your Honour.  Your Honour, page 18 - does your Honour have that, 18 circled down the bottom right‑hand corner?

HER HONOUR:   Yes.

MR REILLY:   That is a reverse page of the cancellation document which was used.  Your Honour will see that quotes regulation 2.43 and if your Honour looks at subregulation (2) ‑ ‑ ‑

HER HONOUR:   I am sorry.  I have not got a page 18.  You want me to look at page 18?

MR REILLY:   Yes, your Honour.

HER HONOUR:   Am I looking for handwriting?

MR REILLY:   No, your Honour.  It is bottom right‑hand corner circled page 18 of the affidavit.

HER HONOUR:   Yes.  Now, what I am looking for on that page?

MR REILLY:   It quotes regulation 2.43.  Does your Honour see that?

HER HONOUR:   Yes, thank you.

MR REILLY:   Then subregulation (2) reads:

For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:

. . .

(b)  in the case of a Student (Temporary) (Class TU) visa - that the Minister is satisfied that the visa holder has not complied with condition 8202.

Does your Honour see that?

HER HONOUR:   Yes.

MR REILLY:   That is how condition 8202 becomes a prescribed and, therefore, mandatory ground for cancellation.  What I was getting at before, your Honour, is that ‑ ‑ ‑

HER HONOUR:   And condition 8105 is not?

MR REILLY:   Condition 8105 now in the loose‑leaf form is also a mandatory ground.

HER HONOUR:   But at the relevant time it was not?

MR REILLY:   Well, I was under the impression it was not and I am afraid I need to check now ‑ ‑ ‑

MR BEECH‑JONES:   I was under the impression it was, actually, your Honour.

MR REILLY:   Yes.  It certainly was not in the sense that it was quoted on the form used by the Minister.  In any event, your Honour, condition 8105 may or may not also be a prescribed ground.  It does not affect my arguments on the natural justice points at all, but it may require an additional argument if your Honour was satisfied that there was an error in anything but the construction of condition 8105.  Your Honour will see that we have pleaded this construction of condition 8202 on the basis that that was the basis for the cancellation.  If the cancellation was made on the basis of breaches of both, then we would need to take that into account, but nevertheless, your Honour, it does not affect the main thrust of the argument, which is simply the breaches of natural justice that I develop in paragraph 7 and following of my submissions.

Now, if I can just explain how those follow.  Attached to the submissions are relevant extracts from the Migration Act and Regulations.  The cancellation procedure to be followed in this case is in subdivision E of Division 3 of the Act, and that is sections 119 to 127, and I extract those in an attachment to my submissions.

HER HONOUR:   If I am operating on the reprint as in force on 1 September 1999, am I safe?

MR REILLY:   I think your Honour will be all right, if your Honour does that.

HER HONOUR:   Subdivision E of Division 3 of Part 2?

MR REILLY:   Well, no.  Just looking at 119 to 127, I think they have not been amended since, your Honour, according to the loose leaf, so for those sections your Honour will be safe, but I have annexed them to my submissions in any event.

HER HONOUR:   Yes.

MR REILLY:   Your Honour, that subdivision sets out the cancellation procedure and, in particular, section 119 requires a certain procedure to be followed.  Most importantly, the start of the cancellation procedure is that the Minister notifies the visa holder “that there appear to be grounds for cancelling” the visa - I am reading from 119(1):

give particulars of those grounds and of the information (not being non‑disclosable information) because of which the grounds appear to exist; and

(b)  invite the holder to show within a specified time that:

(i)  those grounds do not exist; or

(ii)  there is a reason why it should not be cancelled.

Now, there is no prescribed time, so it is simply - well, your Honour, I will get to that.  That is the next stage.  The first stage is simply notification of particulars.

HER HONOUR:   Yes.  Now, is there a prescribed way?  We come to subsection (2)?

MR REILLY:   No, I do not believe so, your Honour.  No, there is not.  So it is simply the way the Minister considers appropriate.  Now, this is a matter that is commented on, I think, in the extract from a decision of the Full Federal Court in Zhao, which I have also attached to my submissions.  I have quoted the relevant extract from Zhao at paragraph 8 of my submissions.  Can I simply quote a subset of what I have set out in writing there.  This is the Full Federal Court at paragraph 25:

Section 119 requires particulars of the grounds relied upon to be included in the notice.  The level of particularity is not specified.  It must serve the statutory purpose.  That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open.  The supporting information will include a description of any evidence upon which the grounds are based.  The grounds, as particularly, may be inferences from the evidence and in that sense conclusionary.

I will not read on, but the point there made is that there has to be a fair attempt at least to inform the visa holder of what the problem is and why his or her visa is being considered for cancellation.

HER HONOUR:   The material would support an inference that the prosecutors were informed as to the problem but they ‑ ‑ ‑

MR REILLY:   No, your Honour, it would not.  There is two stages, your Honour.  There is this stage of notification and then there is the interview stage and that is under ‑ ‑ ‑

HER HONOUR:   Well, is there any reason why the interview stage cannot also be the notification stage?

MR REILLY:   Yes, there is, your Honour, because when your Honour sees the procedure, they are quite distinct.  They are treated as distinct in the legislation and in the forms and procedures used by the Department and also, certainly on my reading, your Honour, by what the Full Federal Court said in Zhao.  Now, this first point about notification of the particulars upon which it is thought that it might be possible grounds to cancel, those occur on page 17 and page 33 of Mr Levingston’s affidavit.

HER HONOUR:   Sorry, 17?

MR REILLY:   Yes.  It is the front page of a form headed “Cancellation of a temporary visa”.  There is two of them because there are two prosecutors.

HER HONOUR:   Sorry, say that again?

MR REILLY:   Pages 17 and 33 of Mr Levingston’s affidavit.  Again, I am referring to the circled bottom right‑hand page.

HER HONOUR:   The form.  Yes, they are the notices of cancellation.

MR REILLY:   Yes.  Now, according to the evidence given by the prosecutors, they were not told anything.  They were simply handed these forms completed and told to sign them.  That was the extent of the notification and the giving of particulars of information.  They were not even provided with interpretation at this stage, despite asking for it and despite not being able to speak English or read English effectively.  So in one case, that is, Ms Min, the possible grounds of cancellation are given as - it is not an answer, this is filled in by the departmental officer:

You have failed to meet condition 8201 (Not met course requirements Not enrolled in a registered course)  You are working in breach of work limitation 8105

So that is the full extent of notification in that case.  In Mr Lee’s case on page 33 it is even worse.  All it says:

BREACH OF 8202 CONDITION
BREACH OF 8105 CONDITION

Now, on their evidence they are not told anything orally; they are not provided with an interpreter; they are simply handed these forms.  The question, we say, is whether that fulfils the statutory requirements in section 119(1).

HER HONOUR:   I would have thought your better arguments were:

You will need to provide your comments within 10 minutes of the start of the interview.

MR REILLY:   Well, that is the next breach, your Honour.  I am going through them one by one.  Certainly, your Honour, in terms of what the Full Court said in Zhao and, in my submission, in terms of the statutory language of section 119(1)(a), they have not been given particulars.  They have not been given information because of which the grounds appear to exist.  They have not been given anything.  They have not been fairly notified.  The statutory intention that - they are put in a position whereby they understand what the difficulty is and they know what is going on has simply not been achieved.  That is partly because they were not sent these notices in the mail or given any prior warning.

They had turned up at an office of the Department to assist a friend and, at the end of the day, they found themselves in Villawood with two days to appeal and in between, the first thing that happened was they were given these notices of cancellation, with nothing explained, no interpretation or elaboration of the problem and just told to sign them.  That is their evidence.  Now, I understand my friend’s evidence may be different, but that is the prosecutors’ evidence and it is set out in affidavits.  That is the first breach, your Honour.

The second breach is developed in paragraph 10 of my written submissions and I think your Honour intimated it to me earlier.  After the notice of cancellation is given to a person under section 119, the next stage is an invitation to give comments, et cetera, under section 121 of the Act.  Your Honour, before I get on to that, I should note section 120 is also relevant to my previous argument.

HER HONOUR:   Sorry?

MR REILLY:   I should note section 120 is also relevant to my previous argument about notification.  It is sections 119 and 120, but the short point is as I have developed:  they were not informed in a way that led to their effective understanding of what was going on at all. 

The next stage, after giving the forms headed “Notice of intention to cancel visa”, which is itself - that form is itself criticised in the Full Court’s decision in Zhao, the next stage is to give an invitation to comment under section 121.  Now, your Honour will see in section 121(1) the invitation specifies:

whether the response to the invitation may be given:

(a)  in writing; or

(b)  at an interview between the holder and an officer; or

(c)  by telephone.

Now, in this case it was by interview.  It was not by writing or by telephone.  They were told, “Your interview is going to happen in 10, 20 minutes.”  Section 121(3) says:

if the invitation is to respond at an interview, the interview is to take place:

(a)  at a place specified in the invitation, being a prescribed place or, if no place is prescribed, a reasonable place ‑

well, we do not say that the place in itself is unreasonable; it was the office of DIMA Rockdale ‑

(b)  at a time specified in the invitation, being a time within a prescribed period ‑

now, there is no prescribed period ‑

or, if no period is prescribed, within a reasonable period.

Now, the short point is that they were given at most 15 to 20 minutes before the interview was to take place.  They had been taken by surprise.  They had not ‑ ‑ ‑

HER HONOUR:   They had been given these forms, I take it, before the interview took place?

MR REILLY:   Yes.  As I said, your Honour, they were presented with these forms and told to sign them and your Honour will see that ‑ ‑ ‑

HER HONOUR:   They refused to sign.

MR REILLY:   ‑ ‑ ‑ one of them refused to sign.  Your Honour can see from the times given in the forms, so there can be no factual contest about this, I think, that the period allowed in each case was somewhere between 10 and 20 minutes before the interview was to take place.  Does your Honour have, for example, the first form?

HER HONOUR:   Yes.  Well, one interview is to be at 2.35, the other is to be at 3.00, and they each have 10 minutes.

MR REILLY:   Well, your Honour, there is two aspects.  They need to provide ‑ ‑ ‑

HER HONOUR:   And one was given the document at 2.15, it is said, and one at 2.45.

MR REILLY:   Yes, that is what I am relying on.  It is a period before the interview commences.  Now, it is one thing to say that within 10 minutes of the interview starting you have to give your comments, but to say that you only have 15 or 20 minutes before your interview, when you have been taken by surprise ‑ ‑ ‑

HER HONOUR:   Were the prosecutors free to leave at this stage?

MR REILLY:   Well, I do not believe so, your Honour, no.  Certainly from - well, your Honour, I think legally they were in the sense that - well, your Honour, they were and they were not because this was a cancellation process and once the visas are cancelled, they become unlawful non‑citizens and are subject to mandatory detention, and that is what happened later in the day.  So if they left, one cannot help thinking that they would not have been able to go very far before their visas were cancelled and so on.

My instructing solicitor tells me that the door was locked in the room they were in anyway.  They were not in a real sense able to leave, your Honour.  What they did want is they have both said in their affidavits is an opportunity to consult legal advice and to get an interpreter, and no interpreter was provided at the notification stage.  An interpreter was provided for the interview, but no legal assistance was ‑ ‑ ‑

HER HONOUR:   A telephone interpreter.

MR REILLY:   Telephone interpretation was made available to both of them, yes, but only at the interview stage, not at the notification stage.  The interview stage, 15 to 20 minutes later.  Despite their request, they are not allowed to seek legal advice or medical assistance, which they also asked for, and the question again is, firstly, “Is the 15 to 20 minutes allowed a reasonable period as required by section 121(3)(b)?”  We say in the circumstances it is not, particularly because these people, the prosecutors, had been taken by surprise.  When they attended the office of DIMA, they had not received any notice of intention to cancel or any request to attend.  They had gone there to assist a friend and then they found themselves in this cancellation process.  Now, there was no need whatsoever for the haste with which the Department undertook this task.  It could have simply - and I understand this is the normal process - sent them the notice ‑ ‑ ‑

HER HONOUR:   Well, it does not matter whether there was any need for it.  The question is whether it was reasonable in the circumstances.

MR REILLY:   Quite, your Honour.  I guess all I was trying to say is it is not required under the legislation that things proceed in this very quick fashion.  The more normal procedure, I am instructed, is simply that a notice is sent in the mail requesting that people attend ‑ ‑ ‑

HER HONOUR:   Well, it does not matter what the ‑ ‑ ‑

MR REILLY:   I will not labour the point, your Honour.

HER HONOUR:   I do not think you should give evidence from the Bar table.  The question is whether it was reasonable in the circumstances.

MR REILLY:   Yes.  The question is whether it was a reasonable period.  We say it was not in the circumstances and the circumstances were, as I have said, they did not have prior notification that there was any difficulty with their visas at all and they had not been given any opportunity to have the notices of intention to cancel forms translated or to seek legal advice upon them, despite their requests.  Now, that, in my submission, is clearly a breach.  That is the second and third breach, your Honour, that I develop at paragraphs 10 and 11 of the written submissions.  The second breach being the time not being a reasonable time as required by the Act.  The third breach being denial of ‑ ‑ ‑

HER HONOUR:   What is this question - I am looking at section 126.  What is “questioning detention”?

MR REILLY:   Your Honour, I do not think they were in questioning detention.

HER HONOUR:   Is that what was happening?

MR REILLY:   I do not believe so, your Honour.

HER HONOUR:   Is that defined anywhere?

MR REILLY:   Yes, it is.  It is detention under section 192 of the Act.

HER HONOUR:   It looks as though that is what has happened.

MR REILLY:   Well, it is hard to know, your Honour.  They have not been given any form that indicates that they were in questioning detention and it may be my friend has some knowledge about this, but as far as I can see ‑ ‑ ‑

HER HONOUR:   We are under subdivision E, are we not?  And it applies only to C, D or G.

MR BEECH‑JONES:   It may be under D, your Honour.

HER HONOUR:   D?

MR BEECH‑JONES:   D is the cancellation ‑ ‑ ‑

HER HONOUR:   Is it? 

MR REILLY:   Yes, it is under D; there is no doubt about that.  That is section 116.

HER HONOUR:   Well, it looks as though that is what was going on.

MR REILLY:   Well, it could be, your Honour, but they certainly will not told that they were detained in questioning detention.  I must say my impression is that the Department was not seeking to invoke those powers.

HER HONOUR:   Well, no, no, because there are some conditions on them.

MR REILLY:   Yes.  Well, your Honour, our position is that they were not in questioning detention.  What was happening was simply the purported compliance with the procedures in subdivision E, at the end of which, because of the ‑ ‑ ‑

HER HONOUR:   If the doors were locked, they were in detention.  Is that not right?

MR REILLY:   Well, yes.  Yes, your Honour.  I am not sure if my friend is suggesting that they were in questioning detention.

HER HONOUR:   No, but it is something that may bear on the reasonableness of the times.  However.

MR REILLY:   Yes.  Your Honour, as I say, that is ‑ ‑ ‑

HER HONOUR:   I should have thought if the doors are locked, you are in detention.

MR REILLY:   Yes.

MR BEECH‑JONES:   I hope the door to the Court is not accidentally locked while I am in here.

HER HONOUR:   No, it is only this one that gets locked and only when I am outside.

MR REILLY:   Your Honour, that is the second and third breaches we allege.  The fourth breach in paragraph 12 is a form of apprehended bias.  Now, I hope I am not one of those applicant barristers who alleges bias in every migration case.  This one is different, and I am relying specifically on what is said by the Full Court in Zhao.  If I can quote again from paragraph ‑ ‑ ‑

HER HONOUR:   Well, has this Court not had something to say about that in ‑ ‑ ‑

MR REILLY:   In Jia, yes, but, your Honour, this is a specific form.  I do not think Jia is going to be that relevant.  If your Honour turns back to paragraph 8 of my written submissions, I quote a slab from the Full Court in Zhao.

HER HONOUR:   Yes, I have read that passage.  Yes, I see what that is getting at.

MR REILLY:   At paragraph 24, as they say, it is an appropriate to head the document “Notice of intention to cancel” because that might mislead an officer into having made up his mind already at the notice stage that

cancellation will occur regardless.  Now, on the evidence of at least Ms Min, that is exactly what was said.

HER HONOUR:   Well, that may go – although it is called “apprehended bias”, that may really go almost directly to natural justice opportunity to be heard, in a sense.  Is there any point saying anything, as it were.

MR REILLY:   Yes.  Your Honour, I just refer to – this is page 12 of Mr Levingston’s affidavit – paragraph 21 from Ms Min’s affidavit.  She deposes that she was told by Mr McIntyre, at the notice stage:

I am going to cancel your visa, it doesn’t matter whether you sign it or not –

she refused to sign, as your Honour will recall –

I will interview you in ten minutes.

I said:   Can you contact a –

I am sorry, paragraph 21 on page 12 of Mr Levingston’s affidavit was what I was reading from, your Honour.  So certainly in Mr McIntyre’s case, on Ms Min’s evidence, he has done exactly what the Full Court suggested was the danger in heading the form “Notice of intention to cancel”, that he has made up his mind already, in a way that he must not do, certainly according to the Full Court.  Your Honour, those are the four breaches of natural justice that we allege.

HER HONOUR:   Yes.  Well, I think I have heard sufficient from you, Mr Reilly.  Yes, Mr Beech‑Jones.

MR BEECH-JONES:   Your Honour, I must confess to some embarrassment, by no doubt some confusion, I did not get my friend’s submissions and when I did mine I worked off the grounds – my friend has not had mine either, so there we go – in the solicitor’s affidavit.  Can I just say, the first thing, I perhaps clumsily talked about the state of the evidence earlier.  What I meant to convey by what I was saying is there is a factual contest but there is no fact I can overwhelmingly or demonstrably prove at an order nisi stage that would bear upon whether it would be granted.  It would be a credit contest and, as I understand it, credit contests would not be entertained at this stage of the proceedings.

Your Honour, the short point really for, in effect, the breach of the hearing rules, other than perhaps that last question, is simply this, that although they had ample opportunity to do so, the prosecutors do not actually say – we do not know why and if we ‑ ‑ ‑

HER HONOUR:   We do not know now why, or we did not know why?

MR BEECH-JONES:   We did not know why, and they do not say, “The opportunity that was denied to us was the following”.  What is it that they – were they cut off ‑ ‑ ‑

HER HONOUR:   Well, first of all, there is the letter about the enrolment dates, the enrolment period, that has come subsequently, that they have now been able to produce.

MR BEECH-JONES:   Your Honour, I understand that letter was sent on the day.

HER HONOUR:   No, no, there is a second one – there is an affidavit, I am sorry.  There is a subsequent affidavit from the Korean student adviser which gives details about the extended enrolment period, a staggered enrolment period, which, as I understand it, is a fairly common procedure in tertiary institutions, for obvious reasons.

MR BEECH-JONES:   Yes, your Honour.  It was my understanding that that person said that they told the officers that on the day.

HER HONOUR:   Yes, they certainly told them that, but obviously that made no impact, did it?

MR BEECH-JONES:   No, your Honour.  I am sorry, your Honour, the ‑ ‑ ‑

HER HONOUR:   Now, my understanding is there is an affidavit there and one can readily imagine that there might be – and perhaps I imagined it – was it part of the solicitor’s affidavit?  Page 41.

MR BEECH-JONES:   And she says on page 43:

She has not re enrolled for Semester 1, 2001.

HER HONOUR:   No, no, but if you look at page 42:

It is the usual practice of Southern Cross College to permit students to enrol during an enrolment period which in the current case was between 29 January 2001 to 16 February 2001 which permits a staggered enrolment of students ‑ ‑ ‑

MR BEECH-JONES:   Yes, and on page 49 she wrote a similar letter to the Migration Review Tribunal.

HER HONOUR:   But not at the time.

MR BEECH-JONES:   Yes, but if I could take your Honour to page 49, in the fourth paragraph, which is, of course, now in evidence, she states:

On 8 February 2001 I was contacted by Officers of the DIMA in relation to these candidates and enquiries were made of me as to their attendance and academic performance.  I sent to DIMA the attached information and I informed the Officers that these students were allowed to re‑enrol before Monday 16 February 2001 –

so that they were told that on that day.

HER HONOUR:   I see, yes.

MR BEECH-JONES:   Yes.  So, again, your Honour, the short answer – or the point we make on ‑ ‑ ‑

HER HONOUR:   Well, the point is, but there may have been a possibility of the students or the prosecutors calling somebody from the college to verify that.  I mean, it is a question of who was going to be believed in these circumstances, in fairly dramatic circumstances, if the prosecutors are to be believed.

MR BEECH-JONES:   I accept that, your Honour, but, with respect, there is no reason to believe there is any – I go back.  The student co‑ordinator said she told them that on the day.  I mean, all that has happened is she has just sent a letter confirming what she told them on the day.  There is no reason, in my submission, to believe that that was not accepted, so that ‑ ‑ ‑

HER HONOUR:   Well, it was treated as irrelevant.  It must have been treated as irrelevant.

MR BEECH-JONES:   Yes, your Honour, and perhaps ‑ ‑ ‑

HER HONOUR:   Well, then that raises a question too, does it not?

MR BEECH-JONES:   Yes, your Honour.  That is not a question that has been raised and ‑ ‑ ‑

HER HONOUR:   Well, I think it is raised in the error of law ground.

MR BEECH-JONES:   Well, that may be, what, a failure to take into account a relevant consideration, or something along those lines.

HER HONOUR:   And it may have been in circumstances like this, may it not, have impinged upon the reasonableness of the notice, so that they say, “We will see you in two days time.  Go and get re‑enrolled”?

MR BEECH-JONES:   That would be a great case, if they had mounted that case, your Honour.

HER HONOUR:   Well, you say that.  The case is just beginning.

MR BEECH-JONES:   Perhaps one might have thought just an inkling of what one might say, if I had my ‑ ‑ ‑

HER HONOUR:   You say what “one might say”, but if the prosecutors are to be believed, this was a fairly dramatic event in which they did not have much opportunity to say anything.

MR BEECH-JONES:   At the time they went to Mr Levingston, the anonymous author of that affidavit’s, office weeks later, they were ‑ ‑ ‑

HER HONOUR:   Well, they say it is not reasonable and I am saying one of the reasons why it may not be reasonable ‑ ‑ ‑

MR BEECH-JONES:   Is that they were perhaps cut off and on an order nisi basis I accept that that is arguable, but my point being, your Honour, that that might get somewhere if someone said, “And I would have gone and done these things.  The opportunity I was denied, as Mr Aala’s opportunity was, was to do this”, and that is what, with respect, they do not do because, in fact, all the matters they have really pointed to, for better or for worse, were before the decision‑maker.

HER HONOUR:   Yes.  Well, perhaps at an order nisi basis they do not have to go much – I mean, it may not ‑ ‑ ‑

MR BEECH-JONES:   I have always taken an arguable case, but, your Honour, that is the submission on the natural justice point.  That addresses the first three matters.  The question of bias ‑ ‑ ‑

HER HONOUR:   I wonder why that rule has developed that you should say, “What I would have done if”.  It must only be a rule of convenience and perhaps of going to credit, but it could not be the absolute answer, could it?

MR BEECH-JONES:   It might depend on the case, but you do have to show that you were denied some opportunity.  I think that would ‑ ‑ ‑

HER HONOUR:   Well, we are talking here in a statutory context by just saying it is not reasonable in the circumstances.  That seems to be arguable, does it not, presumably held in detention?

MR BEECH-JONES:   Well, your Honour, that may be a question, but we are not undertaking the Federal Court review ground that procedures required by the Act; we are doing natural justice.

HER HONOUR:   No, no – but that is – yes.

MR BEECH-JONES:   I mean, I know it informs natural justice.  There is no doubt about that.  It has to.

HER HONOUR:   Were they in detention?

MR BEECH-JONES:   I can honestly say I have not sought instructions on that, but that might be a matter to be ascertained objectively, not what my officers would tell me, if I could put it that way.

HER HONOUR:   Yes.  Well, I can understand that.

MR BEECH-JONES:   But, your Honour, at the risk of repetition, my submission is that without having evidence, with some degree of precision but not on a final basis, of what is the opportunity that has been denied ‑ ‑ ‑

HER HONOUR:   Well, there is an inference that they were denied the opportunity to get their enrolments in order.  I mean, that is the first thing that struck me as a natural inference.

MR BEECH-JONES:   Well, the only answer that I have to that is to perhaps tell your Honour the facts that from the Bar table it would be our case and it would not really get me anywhere on ‑ ‑ ‑

HER HONOUR:   Yes, but it would seem to me that that is an inference that appears on the ‑ ‑ ‑

MR BEECH-JONES:   The bias question is perhaps slightly different because you might say, look, if there is an arguable case of actual bias – I think my friend puts it that highly – then the fact you were denied an opportunity, you might say, “Well, why would I bother saying anything?  It was already decided against me”.  It does not apply to the second prosecutor though.  There is no suggestion that the statements alleged in relation to the first prosecutor, similar ones were made by the second prosecutor, and they were separate decisions.

On the enrol point, I have put the submission in the written submissions that ultimately that is just a question of fact what the meaning of the word “enrol” is.

HER HONOUR:   Well, yes, I know it is put on the ground of error of law, but I would have thought it really tracked back into the reasonableness of the notice.

MR BEECH-JONES:   So that that perhaps rolled back into a natural justice ground at this very early stage of my friend’s proceedings.  Your Honour, those are the matters I wanted to raise by way of order nisi.  Can I just say this:  if your Honour was against us on that, we would be in a position to put on our affidavits in about three weeks.

HER HONOUR:   Yes.  Mr Beech‑Jones, I think there should be an order nisi in this case, but what is going to happen about the factual contest?

MR BEECH-JONES:   That is a matter that is being ‑ ‑ ‑

HER HONOUR:   I think perhaps I had better list the matter in a month’s time to see how matters are going and what is emerging.  I will list the matter for directions.

MR BEECH-JONES:   Perhaps from our experience last year I indicated to my friend that your Honour would be anxious to iron out as many factual issues that would be ‑ ‑ ‑

HER HONOUR:   Yes.

MR BEECH-JONES:   I would have to say that there will be a credit contest and it makes it difficult for one Judge to decide, but it is obviously a matter for your Honour.  If we are to have three weeks, your Honour, my friend may want to put ones in reply, so if we can back maybe in five weeks time.

HER HONOUR:   Yes.  I will simply make the order nisi.  Now, I do not have to make any consequential ‑ ‑ ‑

MR BEECH-JONES:   Consequential orders?

HER HONOUR:   Other than certify for the attendance of counsel.

MR REILLY:   Yes.  Well, there is a draft order nisi, your Honour.  Your Honour may wish to use that as ‑ ‑ ‑

HER HONOUR:   Yes.  I will make an order in terms of the draft and I will certify for the attendance of counsel and I will list the matter – would 16 May – I will not make any formal order about affidavits either.  I if I list it on 16 May at 9.30 to seek progress.  Is that suitable, Mr Reilly?

MR REILLY:   Yes, thank you, your Honour.  I think my friend and I can have some discussions and hopefully get the evidence on, or pretty well on by that time.

HER HONOUR:   Yes, very well.

MR BEECH-JONES:   I mean, my friend might put any further affidavits in‑chief, maybe, before my people go if he wants to.

HER HONOUR:   Yes, and if it turns out that that date is not suitable, there is leave to approach the Registrar to change it for another day during that week but not thereafter.  Very well, at this stage I will simply adjourn until 16 May in Sydney at 9.30 am.

AT 10.20 AM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 16 MAY 2001