Ms (By Her Litigation Guardian, Ms) v Minister for Immigration and Citizenship

[2012] HCATrans 143

[2012] HCATrans 143

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B16 of 2012

B e t w e e n -

MS (BY HER LITIGATION GUARDIAN, MS)

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Directions

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 15 JUNE 2012, AT 9.29 AM

Copyright in the High Court of Australia

MR D.C. RANGIAH, SC:   Your Honour, I appear for the plaintiff with MS N. KIDSON.  (instructed by Refugee and Immigration Legal Service Inc)

MR S.B. LLOYD, SC:   I appear with MS A.L. WHEATLEY for the Minister.  (instructed by Sparke Helmore)

HER HONOUR:   Ladies and gentlemen, I note that there is no dispute that only this Court has jurisdiction regarding the application, at least by this plaintiff.

MR RANGIAH:   Yes, your Honour.

HER HONOUR:   I think it has been confirmed in MZXOT 233 CLR 601 that this Court does not have power to remit despite the provisions of the Judiciary Act, so that definitely leads us here.

MR RANGIAH:   Yes, your Honour.  The Minister has raised another possibility yesterday which ‑ ‑ ‑

HER HONOUR:   With an alternative plaintiff.

MR RANGIAH:   Yes.  The possible difficulty with that is that my instructing solicitors have never acted for the mother, I do not think have had any direct communication with her also, but it is certainly an issue that I think ought to be explored, that is, to see whether instructions might be able to be obtained from the mother to act – or sorry, to be a party to this proceeding.

HER HONOUR:   I see.  How long is that going to take?

MR RANGIAH:   Well, I am not sure, your Honour, but what I proposed was that in the meantime your Honour might make directions as if the matter is proceeding in the High Court.  If it is the case that there is a new plaintiff and the matter can be remitted then the steps that will have been taken here will not be wasted because the grounds will be the same, and the material will be the same, it is just that the ‑ ‑ ‑

HER HONOUR:   Yes.  I suppose except for one step that there is a possibility.  In Shahi, to which you referred in your outline, 283 ALR 448 there was a case stated for a Full Court. That often, of course, overcomes problems with any outstanding facts necessary for the determination of a matter.

MR RANGIAH:   Yes, your Honour.

HER HONOUR:   It is not immediately apparent to me whether there are facts here which would require to be determined.  Could we just discuss what the argument is going to be, in any event, regardless of who is the plaintiff?

MR RANGIAH:   Yes, your Honour.  Perhaps I could give you a brief summary of really the substance of the case.  The plaintiff arrived in Australia in 2006 at the age of 11 on what is called a Refugee Humanitarian Visa and she arrived with her two younger brothers.  The mother was missing at the time, but they discovered that she was in Guinea, and an application was then made for what is called a Subclass 200 Visa for the mother.  In the course of the processing of that application it turned out that DNA tests showed that the mother was not in fact the biological mother of the plaintiff but she was the biological mother of the two younger brothers, and the only explanation that can really be offered is that there might have been a mix‑up at the hospital.

HER HONOUR:   That is at the refugee camp?

MR RANGIAH:   Yes.  But the material – or the statutory declarations and so forth and the other evidence that has been provided will show that the mother believed that the daughter was her daughter, and the daughter believed and she continues to believe that the mother is her mother.  So part of the argument here is that the delegate only considered whether the mother was the biological mother of the child when ‑ ‑ ‑

HER HONOUR:   When you say part of, I had understood your sole ground to be a failure to consider whether or not the primary applicant was an adoptable step‑parent.

MR RANGIAH:   There are other grounds as well.  Another important feature of the case is that the application took a very long time to decide - it took about three and a quarter years to decide.

HER HONOUR:   Yes.

MR RANGIAH:   The relevance of that is that there is a five‑year window from when the children arrived in Australia – sorry, when the children were granted a visa to enter Australia - for the application to be made in respect of the mother.  That window closed in August 2011 but the decision was not made until February 2012.  The practical effect of that was that if it had been known that the decision was going to be made in this way one of the younger siblings could have been substituted as the proposer, or there could have been another application made with one of the younger siblings as the proposer.

HER HONOUR:   What ground of jurisdictional error do you derive from that?

MR RANGIAH:   Well, in this case we say that there was, firstly, a denial of natural justice in the sense that there is apprehended bias created by the delay, and particularly in circumstances where the issue had previously been raised by the solicitors and the issue of substituting proposers had been raised, and secondly, another potential natural justice issue that has arisen from documents we have seen yesterday concerning whether the proposed decision should have been communicated to the solicitors beforehand.  It is an associated ground with just a slightly different basis.

HER HONOUR:   I am sorry, I do not quite follow that.

MR RANGIAH:   Well, there is a file note that has been disclosed of a discussion between a solicitor who formerly worked for RAILS and an officer from the Department ‑ ‑ ‑

HER HONOUR:   You mean a decision was made but not informed within time?

MR RANGIAH:   Well, the solicitor asked for RAILS to be notified before the decision was made so that there could be a new proposer if it became necessary ‑ ‑ ‑

HER HONOUR:   Within time?

MR RANGIAH:   Well, the note does not refer to “within time” but presumably that is the implication.

HER HONOUR:   Where does that lead to a bad faith argument?

MR RANGIAH:   No – again to potentially denial of natural justice - that there might be an implied representation from silence ‑ ‑ ‑

HER HONOUR:   How does the denial of natural justice in those last two respects stand in relation to relief by way of mandamus, given the statutory provisions.

MR RANGIAH:   I think we have sought certiorari, your Honour.

HER HONOUR:   To quash the decision?

MR RANGIAH:   Yes.

HER HONOUR:   But you have statutory time limits within the Act itself which still operate?

MR RANGIAH:   Yes, they do.

HER HONOUR:   So you would need mandamus ‑ ‑ ‑

MR RANGIAH:   Yes.  Your Honour is - I think might be referring to well, if the new decision is made now ‑ ‑ ‑

HER HONOUR:   Yes, is it not subject to the time limits?

MR RANGIAH:   Well, it depends really, I suspect, on the ground that we might succeed on, but yes, in relation to natural justice I suppose – I think your Honour’s point might be that even if we had a new proposer now then that might create a difficulty, but, at the very least, I suppose, what it would mean is that a new decision would have to be made and it might mean that other provisions of other visas which have been rejected here would have to be reconsidered as well.

HER HONOUR:   Where does the obligation to consider the adoptive or step‑parent possibility arise from?

MR RANGIAH:   Your Honour, under the regulations – I will just hand you a copy of the relevant regulations.  Your Honour will see that this is the part of Schedule 2 that reversed the Subclass 200 visas and just at the bottom of that page there is clause 200.211 which says:

The applicant:

(a)is subject to persecution . . . 

(b)meets the requirement of subclause (2).

Then in subclause (2)(b):

on the date of grant of that visa, the applicant was a member of the immediate family of the proposer –

Then the definition of “immediate family of the proposer” appears in – it is page 59 of the bundle that you should have in the bottom right‑hand corner.  It is regulation 1.12AA.  I think it is about the fifth or sixth page in the bundle and you will see that in subregulation (1):

person A is a member of the immediate family of another person B if:

. . . 

(c)A is a parent of B, and B is not 18 years or more.

HER HONOUR:   It comes under the definition then of “parent”.

MR RANGIAH:   Yes, which refers to an adoptive parent and a step‑parent.  The expression “adoptive parent” was not defined – these are the regulations as they were at the time of the decision – but “adoption” was and then regulation 1.04 – so in subregulation (1) it refers to the adopter assuming a “parental role in relation to the adoptee under”, and then paragraph (c):

other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption. 

So then (2)(a):

the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter –

Part of the argument here is well, in any culture if someone thinks that this is their child then it is a part of the adoption process.

HER HONOUR:   But you are saying you would not need to go into the facts in relation to that?  Your point would be that not directing attention to the question is sufficient for jurisdictional error?

MR RANGIAH:   That is so, your Honour.  Another issue that arises potentially in terms of the construction of the Act is that “parent” is – it is an inclusive definition.  It includes adoptive parent and step‑parent as defined, so the ordinary meaning of “parent” might extend beyond merely a biological parent.

HER HONOUR:   How does the finding of the decision‑maker about the claimed connection bear upon the issue?  There was a finding that the claimed connection was non‑genuine.

MR RANGIAH:   Your Honour, the reasons are a little bit confusing but the way the ‑ ‑ ‑

HER HONOUR:   Yes, they are a bit spare.

MR RANGIAH:   Yes, and inaccurate on the objective facts in some respects as well.  So there were the three children who were in Australia.  Two of them are the biological children - shown by DNA sampling to be so - of the mother; one is not.  In addition, on the first page – if your Honour goes to the reasons exhibited to the affidavit of Mr Lachowicz, there is a letter from the Immigration Department ‑ ‑ ‑

HER HONOUR:   Yes.

MR RANGIAH:   ‑ ‑ ‑ dated 22 February and there is a reference to ‑ ‑ ‑

HER HONOUR:   I was really referring to the finding.  It is in relation to the question of whether or not special consideration may be given and it arises under (b), the connection with Australia, and it says:

The claimed connection between the primary applicant and the proposer was established as non‑genuine -

You say that that finding only touches the question of the biological status of the mother?

MR RANGIAH:   Yes, your Honour, because on the first page, just towards the top in the first paragraph: 

I also note the outcome of DNA sampling of the claimed dependent applicants, established that no biological connection existed.

Then later on, under degree of persecution or discrimination, she said:

I consider the outcome of the DNA sampling –

et cetera.  But the references throughout seem to be to biological connection through DNA sampling.

HER HONOUR:   What about the finding of non‑acceptance of a claimed fear of persecution, inability to return?  How does that affect the ‑ ‑ ‑

MR RANGIAH:   Well, in two ways, your Honour, but if I could perhaps just explain one part of the confusing aspect of the reasons here.  If your Honour goes back two pages - so there is the letter from the Department of Immigration and Citizenship and you will see that the:

visa has been refused for the following applicant(s) –

and then it has “Mawata Sesay”, who is the mother, and then a number of other people listed and some are listed as “Child” and some are listed as “Other”.  In fact “Child” should be stepchild because part of the application here was that Ms Sesay sought to bring other dependant minors with her

and a number of them were stepchildren, not children - she has never claimed that they were her children, but they were the children from a previous marriage of her former husband who had disappeared in 1993, and then others were – I think one of them is her brother and one is a niece.

Now, there was a second set of DNA sampling that was done between the stepchildren.  I think there were five of them, and the DNA sampling of those showed that three of them were siblings but two of them were not.  So what was said by Ms Sesay is, “Well, when I married my husband they were presented to me as his children and I have regarded them as his children and I looked after them and they are my stepchildren”.  So the references to DNA sampling are two references - one is the DNA between the plaintiff and the mother and the other is whether the others are siblings. 

The delegate’s conclusion, which we cannot attack on a judicial review, but we would submit, if it were remitted, was misplaced anyway, was that there was an indication of a systematic attempt to mislead the decision‑maker without consideration of the alternative explanations which had been offered and given. 

In particular we do have, as a specific ground, a ground of illogicality in relation to the primary applicant because why would there be an attempt to mislead or deceive if they knew, by having the plaintiff as the proposer – if they knew that that was not the biological daughter when it is clear that the two younger siblings were.  It is much more consistent with a mistake.  But that is a separate ground as well.  Your Honour, I think that is about as much as I can say for the moment about the grounds.

HER HONOUR:   What directions do you propose at this stage?

MR RANGIAH:   We have agreed a set of directions and I will hand up a copy.  I should just say that I think my learned friend just wants to make some submissions though about – they are not quite agreed in the sense that my learned friend proposes an alternative direction or an alternative possibility in relation to paragraph 10 or order 10 that is proposed.

HER HONOUR:   Yes, Mr Lloyd.

MR LLOYD:   Your Honour, we apprehend there is some scope in this matter for there to be a factual dispute.

HER HONOUR:   That is what I am worried about.

MR LLOYD:   In particular in relation to the delay issue and any explanation that might be offered for the delay.  What we had in mind – I know the Court generally prefers to have a special case.  It seems to us that there is an issue which is whether or not this is a matter which, of the substance of the matter, is appropriate to be dealt with by a single Judge as opposed to the Full Bench.  If your Honour is minded to think it is appropriate to go to the Full Bench then what we had in mind was we go through this process ‑ ‑ ‑

HER HONOUR:   Well, perhaps that might be best reviewed after I see the affidavit material and we can actually determine what the scope of the dispute really is.

MR LLOYD:   That is so.  So, really what we were going to suggest is that 10, rather than be set down for a final hearing just, in a sense, be set down for another directions and then once it is all clear we know if there is disputes or not, we know if there is going to be a change of the plaintiff ‑ ‑ ‑

HER HONOUR:   Well, the change of the plaintiff would overcome the question about any factual dispute.  If there is a remitter available it could be determined in the Federal Magistrates Court.

MR LLOYD:   I would apprehend that your Honour would be content that if there was a change in the plaintiff we could simply send up some consent orders to your Honour about the matter remitted.

HER HONOUR:   Yes, that would be appropriate.

MR LLOYD:   So, if that does not happen, and I understand there would be some difficulties in contacting the mother, et cetera, then what we would say is if these matters are pursued then at the next hearing your Honour will then have a pretty crystal clear idea as to where the disputes are, are they factual disputes, could it go as special case, could it just be referred.  I mean, if there is no dispute on any of the evidence it might be that the simplest course would be just to refer the application to the Full Court if your Honour thought that was appropriate or your Honour could deal with it in a final hearing.

HER HONOUR:   Yes.  Well, I just wonder whether the outline of submissions then at 7, 8 and 9 ought to include submissions which identify any disputed questions of fact which would draw to my attention more readily the question of whether or not it should be referred in or dealt with by a single Judge, assuming it is proceeding in this Court.

MR LLOYD:   Perhaps, your Honour, if I suggest that the submissions cover both an outline of the argument, the substantive arguments likely to be advanced and also an outline of the proposals that the parties have as to the form it should be advanced in the sense of – and that would include identifying factual disputes, if there are factual disputes.

HER HONOUR:   Do you agree with that, Mr Rangiah?

MR RANGIAH:   Yes, your Honour.

HER HONOUR:    So where we have the words “Outline of Submissions” in paragraphs 7, 8 and 9, substitute “Outline of Argument on the Substantial Questions” and also “Proposals as to the Form in which the Proceeding is to be Advanced”.

MR LLOYD:   Can I ask your Honour, in relation to that, under the old rule, or now quite old rules, I suppose, the order nisi process was that if an order nisi would have been made then that had to go I think to the Full Court.  Under the new rules it does not perhaps expressly say that.

HER HONOUR:   No.

MR LLOYD:   Under the old rules, as I understand it, if there was a factual dispute at the order nisi stage and there was cross‑examination at that stage, then that did not necessarily become evidence in the process, pursuant to the order nisi.  So there would be other evidence, potentially before a Full Bench.  I say that because in a matter called S154 Justice Kirby made observation of the fact that certain affidavits had not been the subject of cross‑examination in the order nisi process, or that they had been in the process leading to the grant of the order nisi.

So we apprehend that if there was to be a factual dispute with cross‑examination I am just asking if your Honour may not be in a position to give any guidance, but should we assume that the Court, your Honour, would not be inclined to have any process whereby there will be a cross‑examination before a Full Bench?

HER HONOUR:   I think you could take it that everyone would be disinclined towards that.

MR LLOYD:   Thank you, your Honour.

HER HONOUR:   I do not think the other Justices would be terribly impressed if I made directions on that basis.

MR LLOYD:   I am sure.

HER HONOUR:   If it is suitable then the further directions could be set for 27 September 2012.  Is that too close?

MR RANGIAH:   No, your Honour, it is suitable from my point of view.

HER HONOUR:   Is that suitable, Mr Lloyd?

MR LLOYD:   Could I briefly look at my diary?  I personally would not be available that day, your Honour.  Would the following week be possible?

HER HONOUR:   I think that is a sitting week.  Yes, it is.  That is a sitting week.  Is there any other day in the week commencing the 24th?

MR LLOYD:   That is a school holiday week, your Honour.

HER HONOUR:   Yes, these things do not concern me.  It would have to then go over ‑ ‑ ‑

MR LLOYD:   I could do the previous week?

HER HONOUR:   Yes, yes that will be fine; the 20th then.

MR LLOYD:   The 20th, thank you, your Honour.

HER HONOUR:   All right.  With the amendments I have indicated there will be orders in terms of the directions handed up as short minutes and initialled by me.  The parties will let me know whether or not there is a change of plaintiff and the matter can proceed by way of remitter.  Thank you.

AT 9.55 AM THE MATTER WAS ADJOURNED