MZYED v Minister for Immigration and Citizenship

[2012] HCATrans 270

[2012] HCATrans 270

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M132 of 2011

B e t w e e n -

MZYED

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 30 OCTOBER 2012, AT 10.27 AM

Copyright in the High Court of Australia

MR R.C. KNOWLES:   May it please the Court, I appear for the Minister.  (instructed by Australian Government Solicitor)

HIS HONOUR:   You are here to interpret for the plaintiff, is that right, Sir?

THE INTERPRETER:   Yes, your Honour.

HIS HONOUR:   Could we perhaps have you affirmed or sworn as the case requires?

PALLEMULLE BANDARA, affirmed as interpreter.

HIS HONOUR:   Thank you, Mr Interpreter.  First, would you be good enough to tell the plaintiff that I am not permitted to use his name.  I intend him no disrespect by not calling him by his name, I am forbidden from doing so.  But I do so not to disrespect him.  Now again, Mr Interpreter, would you say to the plaintiff that the Minister seeks to have the plaintiff’s proceeding dismissed? 

I anticipate that the Minister will say that the Court’s decision in September this year about requests to the Minister requires the conclusion that the plaintiff’s action must fail.  I will hear first from the Minister, then the plaintiff will have his chance to say what he wishes to say, in answer.  Mr Knowles, you move do you on the summons of 19 October this year?

MR KNOWLES:   Yes I do, your Honour.

HIS HONOUR:   With the affidavit of Ms Ngo, sworn on 19 October?

MR KNOWLES:   Yes that is correct, your Honour.

HIS HONOUR:   Those documents have been served on the plaintiff, have they?

MR KNOWLES:   Yes, your Honour.  There is an affidavit of service in which for the sake of completeness I would seek leave to file with the Court.

HIS HONOUR:   Yes.  You have filed an outline of submissions?

MR KNOWLES:   Yes, your Honour, and again as with the last matter, the outline of submissions is dated 25 October 2012.  I am instructed that it was sent to the plaintiff by express post on that date.  Your Honour, it may be appropriate to check with the plaintiff to see that that document has actually been received.

HIS HONOUR:   Has the plaintiff received the outline of submissions?

THE INTERPRETER:   We received it on 26 October.

HIS HONOUR:   Yes thank you.  This document records the arguments that the Minister wants to tell me.  Yes.

MR KNOWLES:   Your Honour will have seen that ‑ ‑ ‑

HIS HONOUR:   Now, you have set out the history of the matter in paragraphs 5 to 13, is that right?

MR KNOWLES:   Yes, your Honour.

HIS HONOUR:  A request was made for exercise of powers under section48B or section 417?

MR KNOWLES:  That is correct, your Honour. In fact, there were a number of requests apparently made by both the plaintiff and his wife. None of those requests were actually acceded to by the Minister. In each case the Minister either decided that the power – the relevant power – would not be exercised, or there were guidelines that provided for the matter not to be referred to the Minister for personal consideration. Whether it be in respect of the power in section 48B or a repeat request, in respect of the power in section 417. Your Honour, I do make similar submissions to those that were made in the matter that has come before your Honour immediately before this one today, in respect of the application of Plaintiff S10.

The only other matter that I would submit, in respect of this matter, your Honour, is that in addition to those submissions about the prospects of success in the present proceeding there is also an issue as to whether or not the application for an order to show cause was made out of time and ‑ ‑ ‑

HIS HONOUR:   I would leave the question of time aside, Mr Knowles.

MR KNOWLES:   I am perfectly content to do that, your Honour.  I just noted it is something that is put in the outline of submissions, but I do not dispute in any way, your Honour, that underlying all of that is a more fundamental submission as to prospects, which is made by the Minister. 

Unless I can assist your Honour with anything further really the submissions that are made are in large part similar to those which were made in the preceding matter, as to firstly whether or not there is any argument of substance disclosed, having regard to what was said by this Court in Plaintiff S10.  Secondly the matter that I also raised, which is adverted to in Plaintiff S10 as to the powers being non‑compellable in sections 417 and 48B and, as such, there being a real question as to the utility of any relief, which has been sought by the plaintiff in this proceeding, particularly insofar as it concerns the issue of a writ of mandamus 

HIS HONOUR:   Yes, thank you.

MR KNOWLES:   Thank you, your Honour.

HIS HONOUR:   Now, Mr Interpreter, would you say to the plaintiff that the Minister’s counsel says the case must lose because of the decision this Court made in September this year in other similar cases?

THE INTERPRETER:   Injustice was caused to them because therefore they would prefer the time to file some papers, he says.

HIS HONOUR:   Yes, perhaps could you tell me what papers or kinds of paper you would want time to file?

THE INTERPRETER:   I want to give reasons for this because I had no time to respond.  I got it only on 26 October.

HIS HONOUR:   He wants to have further time to consider the submissions the Minister has made, is that right?

THE INTERPRETER:   Yes, your Honour.  Your Honour, she asks can she address the Court, she is asking me?

HIS HONOUR:   Can she address the Court as well or instead of?

THE INTERPRETER:   Yes, your Honour.

HIS HONOUR:   I take it this is the plaintiff’s wife?

THE INTERPRETER:   Yes, your Honour.

HIS HONOUR:   Yes, Madam, of course you may, but can I first finish this, then I will hear you and then we will proceed in a, I hope, orderly way. 

So the plaintiff wants more time to consider whether there is any answer to these arguments the Minister makes, is that right?

THE INTERPRETER:   Yes, your Honour.

HIS HONOUR:   Is there anything else that he would wish to say before I hear his wife?

THE INTERPRETER:   No, your Honour, my wife will talk.

HIS HONOUR:   Perhaps, Ma’am, if you would be good enough to come to a microphone we can then record what you have to say.  What is it you wish to tell me?

MZYEE:   Thank you, your Honour.  I want to tell I got a call on Wednesday from Minister’s lawyer and they asked me these things – submission – I will file before Friday.  There is no time for us because we have to find ‑ ‑ ‑

HIS HONOUR:   Just take one moment, take a big breath, stop and we will go on when you are ready and not before you are ready, okay.  So you take your time. Now, when you are ready start.  Now, the Minister’s lawyers asked you do you want to put on any submissions.  You said to them there is no time?

MZYEE:   Yes, I said I have only two days and I have to find a lawyer and I could not find a lawyer before Friday and I am really cross, I need more time for the submission.

HIS HONOUR:   Yes, is there anything else you want to tell me?

MZYEE:   Yes, your Honour, I ‑ ‑ ‑

HIS HONOUR:   Just slow down take your time.  There is no rush.  I know it is hard, just slow down, okay.  Now go on.

MZYEE:   Your Honour, also we did not give a good answer for our case so we want to add more documents.  Recently only there is something happened to experience from those people and they have sent the police report.  They have sent it to us by post, this translated one.  So those are the documents we want to submit so, your Honour, we need more time.

HIS HONOUR:   Yes, thank you.  Perhaps if you sit down.  Now, Mr Knowles, what do you say I should do?

MR KNOWLES:   Well, your Honour, I have sought some confirmation from my instructor, in relation to whether or not there was phone contact earlier this week, and it does certainly seem that that was the case.  As I understand it, it was to assess whether or not there had been receipt of the summons and supporting affidavit.  In relation to the time, it is certainly acknowledged that the submissions were received late last week.  There is no doubt about that, but otherwise there are two points that I would make, your Honour.

HIS HONOUR:   When was the summons served?

MR KNOWLES:   The summons was served, it was posted on 19 October and according to paragraph 3 of the affidavit of service it was collected – and this is according to the receipt, the postal receipt for registered post – it was delivered on 23 October, so it was received at that time.  Does your Honour see that is exhibit PP2 at the end of the ‑ ‑ ‑

HIS HONOUR:   No, I am simply working out dates, so a week ago?

MR KNOWLES:   That is right, your Honour.  The next point that I would make though, your Honour, is that if your Honour goes to Ms Ngo’s affidavit of 19 October this year, at paragraph 16 Ms Ngo refers to correspondence sent on 13 September this year from my instructing solicitors to the plaintiff at which point they were advised of the reasons for judgment in Plaintiff S10/2011. 

That is at paragraph 16, and at that point it was put, having regard to that case, that the Minister submitted that the proceeding did not disclose any arguable basis.  So, there was some forewarning of the position, in my submission, that the Minister proposed to take and your Honour will see that is at exhibit MN6 ‑ ‑ ‑

HIS HONOUR:   Yes, I have that.

MR KNOWLES:   ‑ ‑ ‑ to the affidavit of Ms Ngo.  In fact, attached to the correspondence dated 13 September were proposed consent orders providing for the matter to be dismissed with costs at that juncture, on the basis of what was set out in the letter.  So all I would say, your Honour, there are two points; one is that there has been notice given of what has eventually occurred, with respect to the summons and affidavit, firstly. 

Secondly, in my submission, having regard to what is said in Plaintiff S10 and what is also put by the plaintiff and his wife, in terms of their arguments in this case, it cannot be said that those arguments have any prospect of success, in my submission.  So in those circumstances to

adjourn the matter would ultimately not serve any useful purpose.  So beyond that, your Honour, though I have nothing further to add.

HIS HONOUR:   Mr Interpreter, is there anything else the plaintiff wishes to say about the case generally, any other aspect of the case?

THE INTERPRETER:   He says, your Honour, different people have different problems, but my case is different.  I want at least two weeks time to meet my lawyer.

HIS HONOUR:   I understand that is what he wants, yes.

THE INTERPRETER:   I am scared to go to Sri Lanka with the people who have gone has taken into custody at the airport and they are in jail, so I cannot go there and I want to meet my lawyer and discuss this matter.

HIS HONOUR:   Yes, anything else?

THE INTERPRETER:   Your Honour, my workplace was cancelled earlier and given again very recently so I have some financial problems.  We approached a barrister also they want $5,000.  So those are my reasons.

HIS HONOUR:   Yes, thank you very much.

On 21 September 2011, the plaintiff filed an application for an order to show cause directed to the Minister for Immigration and Citizenship by which the plaintiff challenged the Minister’s refusal to exercise powers given to the Minister by section 48B of the Migration Act 1958 (Cth). The plaintiff and his wife are citizens of Sri Lanka. They entered Australia in 2008 and very soon after arrival in Australia sought a protection visa. In December 2008, a delegate of the Minister refused to grant the visas that were sought.

In January 2009, the plaintiff and his wife applied to the Refugee Review Tribunal for review of the delegate’s decision, but in April the Tribunal affirmed the delegate’s decision.  The plaintiff and his wife sought judicial review of the Tribunal’s decision in the Federal Magistrates Court but that application was dismissed in September 2009.  In December 2009, the Federal Court of Australia dismissed an appeal against the orders of the Federal Magistrates Court.  In April 2010, their application for special leave to appeal to this Court was dismissed. 

Thereafter, the plaintiff and his wife made a number of requests to the Minister that he exercise the power given by section 48B of the Migration Act or the power given by section 417 of that Act to grant them the visas that they sought, but on each occasion the Minister either decided not to exercise the power or a departmental official determined that the request that was made had not met guidelines which the Minister had provided for when applications of this kind were to be referred to the Minister.

In February 2011, the plaintiff made a further application to the Minister, but again without success, and it is the lack of success of that application which grounds the present proceedings in this Court.  Following this Court’s decision in Plaintiff S10/2011 v Minister for Immigration and Citizenship and Anor (2012) 290 ALR 616; 2012 HCA 31, which was published on 7 September 2012, the solicitor for the Minister wrote to the plaintiff by letter dated 13 September 2012, saying that in light of the decision in Plaintiff S10 the Minister maintained that the plaintiff’s application in this matter does not disclose an arguable case and proposing to the plaintiff that the proceeding be dismissed by consent with costs. 

The Minister’s solicitor’s letter told the plaintiff that if the plaintiff did not agree with the proposed orders and return a signed consent to the making of those orders the Minister proposed to apply to the Court to have the matter listed and to then seek to have the proceeding dismissed. 

On 19 October 2012, the Minister issued a summons seeking summary termination of the present proceedings.  That summons was served on the plaintiff and received by the plaintiff on 23 October.  An outline of the Minister’s submissions was not made available to the plaintiff until one or two days before the return of the summons this morning.  In these circumstances, the plaintiff, supported by his wife, applied for an adjournment of the present application, submitting that they had not had time sufficient to consider the application that the Minister now advanced.

The plaintiff pointed out that having received the written submissions so recently, he had not had any opportunity to obtain any legal advice about the merits of the arguments there advanced and he sought at least an adjournment of two weeks to enable him to obtain that advice.  Ordinarily one would be very slow indeed to refuse an adjournment of proceedings in the circumstances that I have described.  There are, however, in this particular set of circumstances unusual features which, in my opinion, make it right to determine that the application for adjournment should be refused.

First, there is the fact that the Minister put the plaintiff on notice of the course which the Minister proposed by the letter which the Minister’s solicitor sent as long ago as 13 September 2012.  The Minister’s application does not, therefore, come to the plaintiffs without a deal of prior warning.  The second and, in my opinion, the determinative consideration which militates against granting the injunction sought is that the Minister seeks summary determination of the proceedings on the basis that they are wholly governed by the Court’s recent decision in Plaintiff S10. 

The Court’s decision in Plaintiff S10 was given in four associated matters which considered the application of a number of provisions of the Act, all in substantially common form, including sections 48B and section 417, to a variety of circumstances of a kind not distinguishable from those that arise in the present matter. The Court’s conclusions in the decision of Plaintiff S10 are fatal to any chance of success by the plaintiff in the present proceedings in this Court.

As was said in Plaintiff S10, the personal circumstances of an individual may be taken into account in exercising the powers given by either section 48B or section 417 of the Act or equivalent provisions. But those personal circumstances of an individual, and thus the personal circumstances of the plaintiff and his wife, are not considerations which the Minister is bound by law to take into account. As was said in Plaintiff S10/2012 290 ALR 616 at 641, paragraph [99]:

(viii)The premise for the operation of s 48B is that there has been the refusal of a protection visa (with attendant RRT engagement) which will be final unless the minister lifts the bar upon further applications which is lowered by s 48A; . . .

(ix)Against that background, it is not surprising that the focus of the four dispensation sections is upon the minister’s view of the public interest rather than upon the satisfaction of conditions for the issue of visas.

Accordingly, so the plurality held in Plaintiff S10, upon their proper construction and in their application to the cases then under consideration, and I would add to the present, the dispensing provisions of section 48B and section 417 are not conditioned on observance of the principles of procedural fairness. Rather, the powers given to the Minister in this respect are personal non-compellable public interest powers.

In those circumstances, I am of the opinion that the plaintiff’s action must fail.  That being so, there is no advantage to be gained in granting the adjournment that was sought.  The application for adjournment is refused.  The proceeding must be dismissed.  With costs, Mr Knowles?  It must be dismissed with costs.

MR KNOWLES:   Yes, the Minister would seek the usual order, your Honour.

AT 10.59 AM THE MATTER WAS CONCLUDED