Plaintiff M83-2009 v The Honourable Justice Ryan & Anor

[2010] HCATrans 117

[2010] HCATrans 117

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M83 of 2009

B e t w e e n -

PLAINTIFF M83/2009

Plaintiff

and

THE HONOURABLE JUSTICE RYAN OF THE FEDERAL COURT OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 29 APRIL 2010, AT 9.28 AM

Copyright in the High Court of Australia

PLAINTIFF M83/2009 appeared in person.

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

HIS HONOUR:   Yes.  There is a submitting appearance on behalf of the first defendant, I believe.  Is that right, Mr Knowles?

MR KNOWLES:   That is as I understand it, yes, your Honour.

HIS HONOUR:   Yes.  Now, the applicant is present in person and has the assistance of an interpreter?

THE INTERPRETER:   That is correct, your Honour.

MANOJ DANDENIYA ARACHCHI, affirmed as interpreter.

HIS HONOUR:   Now, Mr Interpreter, would you be good enough to say to the plaintiff, as I have said to him on earlier occasions, that the law requires that I not use his proper name during these proceedings.

THE INTERPRETER:   Yes, your Honour.

HIS HONOUR:   The fact that I do not address him by name is not intended to be discourteous.  It is simply that the law requires that.  Now, the Minister has applied for an order that his proceedings in this Court be dismissed.  Would you explain that to him, please?  Is there any reason why I should not proceed to hear first from the Minister and then hear what he wishes to say in answer?

PLAINTIFF M83/2009 (through interpreter):   I wanted to let you know – just let you know, your Honour, that I have requested for legal representation through the Bar Association of Australia and they have refused my application.  That is all I wanted to let you know.

HIS HONOUR:   Yes, thank you very much.

PLAINTIFF M83/2009 (through interpreter):   I have a document.

THE INTERPRETER:   He is showing me a document, your Honour.

HIS HONOUR:   I think it is enough that he has told me that fact.  I do not think I need to see the document.  As I understand it, he applied and they have refused.  Is that right?

PLAINTIFF M83/2009 (through interpreter):   Yes, your Honour, that is correct.

HIS HONOUR:   Yes, thank you.  Perhaps if you would be good enough to have a seat and I will hear what Mr Knowles has to say.

THE INTERPRETER:   Thank you, your Honour.

HIS HONOUR:   Yes, Mr Knowles.

MR KNOWLES:   Thank you, your Honour.  Your Honour will recall that the matter previously came before this Court on 17 March this year and at that time the matter was adjourned off to today for the plaintiff to endeavour to obtain representation.

HIS HONOUR:   Yes, I should say in that regard, Mr Knowles, and I should say to both sides, that yesterday the Deputy Registrar received from Victoria Legal Aid a letter which acknowledged receipt of the transcript of the hearing on 17 March and advised the Court that the plaintiff had sought legal advice, was asked to complete an application for legal assistance, but that Legal Aid had no record of receiving such an application.

MR KNOWLES:   Yes, your Honour.  I should indicate to the Court ‑ ‑ ‑

HIS HONOUR:   Just a moment, Mr Knowles, while the interpreter translates that to the plaintiff.

MR KNOWLES:   Yes, your Honour. 

HIS HONOUR:   Yes, do go on, Mr Knowles.

MR KNOWLES: Thank you, your Honour. I should indicate to the Court that a copy of that correspondence has kindly been provided to my instructors as well. Your Honour will recall that in this matter the second defendant has filed a summons dated 10 February 2010. In that summons orders are sought for summary judgment pursuant to section 25A of the Judiciary Act 1903 on the basis that this present application has no reasonable prospects of success. In support of the summons, your Honour, there is an affidavit of Ms Katie Miller dated 9 February 2010. Can I take that affidavit as read, your Honour?

HIS HONOUR:   Yes, you read that affidavit.  Perhaps, Mr Interpreter, would you ask the plaintiff is there any reason why I should not receive, or does he object to my receiving the affidavit of Ms Miller?

PLAINTIFF M83/2009 (through interpreter):   There is no objection, your Honour.

HIS HONOUR:   Thank you.  Yes, you may take that affidavit as read, Mr Knowles.

MR KNOWLES:   Thank you, your Honour.  In addition to the affidavit, there have also been submissions and a list of authorities both dated 15 March this year which have been filed and served.  Has your Honour had an opportunity to consider those submissions?

HIS HONOUR: Yes. Can I just understand whether it comes to this, Mr Knowles? First dealing with the position of the Minister, do I understand your submissions to amount or to include the proposition that even if prohibition and certiorari were for some reason thought to be available in connection with what happened with the last application for consideration of exercise of power under section 417, this Court’s decision in S134 211 CLR 441, particularly what is said at paragraphs 44 to 48 in the plurality reasons and 98 to 100 in the reasons of Justices Gaudron and Kirby, show that mandamus would not go and that, therefore, even if a case were to be made out that there was some jurisdictional error, there would be no point in granting relief to quash the decision because section 417(7) makes plain that there is no duty on the Minister to consider exercise of the powers under that section?

MR KNOWLES:   Your Honour, that is precisely the position of the second defendant in this proceeding. 

HIS HONOUR:   Is there any aspect of the Court’s decisions after S134 that bears upon what I have just said?

MR KNOWLES:   The only decision that I am aware of, your Honour, is the decision in Appellant M70/2006 v Minister for Immigration and Citizenship, and a copy of that decision, your Honour, is at tab 8 of the folder of authorities.

HIS HONOUR:   Yes.  Have I the folder of authorities?  I think not.

MR KNOWLES:   I can provide a copy.

HIS HONOUR:   Thank you.

MR KNOWLES:   I will just check with my instructor, your Honour, to ascertain whether or not the folder was provided to the plaintiff on the last occasion.

HIS HONOUR:   I think the answer may be no, Mr Knowles.

MR KNOWLES:   As do I, your Honour, on the basis of what my instructor tells me.  I am content to provide a copy of the case to the plaintiff, as I have a spare copy of this case.  Your Honour will see it is a decision of her Honour Justice Bell.

HIS HONOUR:   It is another single Justice decision and does it give effect to what was decided in S134?

MR KNOWLES:   It does, your Honour.  If I could take your Honour to page 14 of the transcript and particularly lines 585 to 590 your Honour will see there that the decision in – it is described as Plaintiff S134, I understand it to be Applicant S134 – was followed and it was noted that “the Minister is not under a duty to consider a request that he exercise his power under ss 48B and 417” of the Act.  There was some consideration given to an issue raised in that case as to whether or not there had been a denial of procedural fairness in terms of whether or not the matter was to be referred, but ultimately the plaintiff in that case ran up against the same problem that arises in this case, which is the utility point.

HIS HONOUR:   Yes.  The bottom line is one of utility, is it not?

MR KNOWLES:   It is.

HIS HONOUR: Even if it is possible to demonstrate that there is jurisdictional error committed in dealing with – I use as all embracing a terms as I can – a section 417 request, section 417(7) presents a question of utility.

MR KNOWLES:   Yes, your Honour.  I should just make it clear, as your Honour will have seen from the submissions filed by the second defendant, it is not conceded that there was any jurisdictional error in the way that the matter was dealt with, to use that expression.

HIS HONOUR:   I understand.  There is a very real and lively controversy, yes.

MR KNOWLES:   But having said that, it really comes back to that underlying issue of the utility and it is submitted that mandamus could not go in this case and, as such, there is no utility in the matter proceeding further.

HIS HONOUR:   Yes.  Then, although you appear only for the Minister and there is a submitting appearance on behalf of the judge, if proceedings were dismissed as against the Minister, is there anything from your particular and necessarily partisan point of view which would support continuation of the balance of the proceeding as against the judge?

MR KNOWLES:   No, your Honour.  I should just point out one other matter.  It has not been highlighted in the proceedings below and it was not alluded to in the written submissions by the Minister, and that is simply by oversight in terms of dealing with the matters that were raised by the plaintiff, but in terms of the jurisdiction of the Federal Magistrates Court at the outset, there is a question as to whether or not the Federal Magistrates Court even had jurisdiction to deal with this matter. 

In that regard, if I could briefly take your Honour, under tab 1 of the folder of authorities, to section 476 of the Migration Act 1958, your Honour will see subsection (2) sets out circumstances in which the Federal Magistrates Court has no jurisdiction in relation to matters and one of those circumstances is:

a privative clause decision or purported privative clause decision mentioned in subsection 474(7).

If your Honour turns back to that provision ‑ ‑ ‑

HIS HONOUR:   It includes a decision not to exercise or not to consider exercise of power under 417.

MR KNOWLES:   That is correct, your Honour, and again, in my submission, that merely bolsters the issue of utility and it particularly ‑ ‑ ‑

HIS HONOUR:   Well, it does rather invite attention to whether the decision which is impugned is a decision of the Minister not to consider or a decision of some other officer of the Department not to refer.  Those are waters that may or may not have their own share of shoals and rocks in them.  As I understand it, you are saying we never get there?

MR KNOWLES:   We never get there, your Honour.  Just on the point of not to consider whether or not that was actually decided by the Minister, in my submission, the chronology of this matter did involve such a decision in advance by the Minister.  After the first request was made, the Minister indicated that no further requests would be considered unless they fell within the guidelines as assessed by an officer of the Department.  So that, in my submission, was the decision not to consider made in advance at that

time.  In any event, as your Honour has indicated, it still runs up against the issue of utility at the end of the day.

HIS HONOUR:   Yes, thank you, Mr Knowles.

MR KNOWLES:   I do not know if there is anything I can further assist your Honour with.

HIS HONOUR:   No, thank you, Mr Knowles.  Now, Mr Interpreter, would you explain to the plaintiff, please, the following steps.  One, the Minister wants to bring his proceedings to an end today.  The second thing to explain is that there are many legal questions that we could look at and consider but there is one which seems to me to present a very serious difficulty in the plaintiff’s way.  The central difficulty, I think, is this.  The plaintiff asked the Minister to make a decision to allow him to stay in Australia and the Minister or the Department said that they would not consider that request.

The Act which deals with these questions says that the Minister does not have to consider a request of this kind and the difficulty the plaintiff has, I think, in the present application is that even if he shows that what has been done so far is wrong, he cannot force the Minister to consider his request and he cannot force the Minister and the Court cannot order the Minister to consider the request because the Act says that the Minister does not have a duty to consider the request.  That is the first and most important question I have to look at today.  The second question I have to look at today is whether it is arguable that Justice Ryan made a mistake in his decision.  Now is the chance the plaintiff has to say whatever he wants to say about those two questions.

PLAINTIFF M83/2009 (through interpreter):   I accept your comments, your Honour.  There is nothing further to say.

HIS HONOUR:   There is nothing he wishes to say by way of argument?

PLAINTIFF M83/2009 (through interpreter):   What I wanted to say, your Honour, I would like to let you know, because I cannot get any legal representation, your Honour, so I cannot take this any further, so I would like to request to withdraw the matter without cost, your Honour.

HIS HONOUR:   Yes, thank you.  Perhaps if you could sit down.  Mr Knowles, you have heard what has last been said, the request to withdraw the matter without any order as to costs.  What do you say?

MR KNOWLES:   Your Honour, in my submission, and I can indicate these are my instructions as well, the matter ought to be summarily dismissed and a costs order should follow the event.

HIS HONOUR:   Yes, I will not trouble you further.  Thank you, Mr Knowles.

On 11 September 2009 the plaintiff filed in the Court an application for an order to show cause directed to the honourable Justice Ryan of the Federal Court of Australia and the Minister for Immigration and Citizenship.  The relief claimed in the application was described as being:

i)Issue of a Writ of Prohibition against the 2^nd Defendant –

I interpolate, the Minister –

prohibiting him from taking any steps to remove the plaintiff from Australia.

ii)Issue of a Writ of Certiorari to quash the order of the 1^st Defendant –

I interpolate, Justice Ryan –

dated 21/08/2009.

iii)The issue of a Writ of Mandamus to compel the 1^st Defendant to perform a proper adjudication on the plaintiff’s case.

iv)Cost.

The grounds on which that relief was claimed were described in four paragraphs and again it is desirable that I set those paragraphs out in full.  They read:

i)The Plaintiff wrote to the 2^nd Defendant, three occasions requesting the 2^nd Defendant to exercise his power under section 417 of the Migration Act. On each occasion an official from the Department of Immigration & Citizenship wrote to the plaintiff saying that the request did not come within the guidelines, ie‑ Migration Series Instructions 386 & 387 and therefore will not be brought to the attention of the 2^nd Defendant.

ii)The Plaintiff challenged this decision in the Federal Magistrates Court on the ground that if the request under section 417 of the Migration Act is not brought to the attention of the 2^nd Defendant then the power to do so is ultra‑ vires that section.  The Federal Magistrate did not answer the plaintiff’s question and so also the 1^st Defendant.  The plaintiff files documents in this court that were filed before the Federal Magistrates Court and the Federal Court [to] explain his case.

iii)Therefore if there exists guidelines made under section 417 of the Migration Act that permits the discretion of the 2^nd Defendant’s power being exercised by the departmental officials, then such guidelines are outside the guidelines making authority under section 417 of the Migration Act.

iv)Secondly, the Plaintiff refers to his written submission made in the appeal as specially the last paragraph to which the 1^st Defendant says that “ there is no evidence to rebut the presumption of regularity or any evidence of lack of good faith in the relevant administrative officer”.

The first defendant, Justice Ryan, filed a submitting appearance in this Court. The Minister appeared and now applies, by summons dated 10 February 2010 for orders that the application for an order to show cause filed on 11 September 2009 be dismissed pursuant to section 25A of the Judiciary Act 1903 (Cth) on the ground that the plaintiff has no reasonable prospect of successfully prosecuting the proceedings. The Minister seeks costs.

As may be apparent from what is said in the initiating application in this Court, there is a considerable history which lies behind the application.  It is convenient to take a description of the principal events constituting that history from the affidavit of Kathryn Elizabeth Miller sworn on 9 February 2010 and received in support of the application for summary dismissal of the proceedings against the Minister.

In that affidavit, it is shown that the plaintiff, a Sri Lankan national, arrived in Australia on 5 May 2001 on a Sub‑class 420 Entertainment Visa. On 16 May 2001, the plaintiff applied for a protection visa, but on 12 June 2001 a delegate of the Minister refused that application. The plaintiff applied for review of the refusal of the application for a protection visa by the Refugee Review Tribunal. On 4 April 2003, that Tribunal handed down a decision affirming the decision of the delegate. On 12 May 2003, the plaintiff, through an agent, asked the then Minister for Immigration and Multicultural and Indigenous Affairs to exercise his discretion under section 417 of the Migration Act. 

Section 417(1) of the Act provides, and has provided at all relevant times, that:

If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

As will later be emphasised, it is important also to notice that section 417(7) of the Act provided then, and provides now, that:

The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

On 7 February 2004, the then Minister declined to consider exercising the power under section 417 of the Act. On 25 February 2004, the plaintiff brought proceedings in this Court seeking relief under section 75(v) of the Constitution and associated relief in respect of the decision that had been made by the Refugee Review Tribunal. On 23 July 2004, this Court remitted that matter to the Federal Magistrates Court.

On 25 May 2006, the Federal Magistrates Court, in the proceeding that had been remitted, ordered that a writ of certiorari issue quashing the decision of the Tribunal and further ordered that mandamus issue requiring the Tribunal to hear and determine the plaintiff’s application for review of the refusal of the Minister’s delegate according to law.

The Tribunal undertook a second review and on 8 November 2006 the Tribunal handed down its decision on that further review affirming the delegate’s decision not to grant the plaintiff a protection visa.  On 5 December 2006, the plaintiff applied to the Federal Magistrates Court for review of the second decision of the Tribunal, but on 19 June 2007 the Federal Magistrates Court ordered that the application for review be dismissed.

In July 2007, the plaintiff appealed to the Federal Court of Australia against the orders of the Federal Magistrates Court dismissing his application for judicial review and on 9 August 2007, the Federal Court dismissed that appeal.  The plaintiff applied to this Court for special leave to appeal against the orders of the Federal Court dismissing the appeal, but on 27 March 2008 this Court refused special leave. 

On 23 April 2008, the plaintiff, again through an agent, made a second request of the Minister that the Minister exercise power under section 417 of the Act. In September 2008, an officer of the Department considered the request and, not being satisfied that the request met requirements for referral to the Minister that the Minister had laid down when determining not to consider exercise of power in February 2004, determined not to refer the plaintiff’s request to the Minister.

On 12 October 2008, the plaintiff, again through an agent, made a third request that the Minister exercise power under section 417. In December 2008 an officer of the Department assessed the request and, not being satisfied that the request met the requirements for referral to the Minister that had been established in February 2004, told the plaintiff that the request would not be referred to the Minister.

In February 2009, the plaintiff made a fourth request that the Minister exercise his power under section 417 but again, on 17 February 2009, an officer of the Department, having assessed the request, determined that the requirements for referral to the Minister were not met. The matter was not referred to the Minister.

On 24 February 2009, the plaintiff applied to the Federal Magistrates Court for review of the decision of the officer of the Department that had been made in February 2009 not to refer to the Minister the request that had been made for exercise of powers under section 417. On 15 April 2009, the Minister applied to the Federal Magistrates Court for an order summarily dismissing the proceedings in that court on the footing that no reasonable cause of action was disclosed. On 22 May 2009, the Federal Magistrates Court made an order summarily dismissing the application.

On 29 May 2009, the plaintiff filed, in the Federal Court of Australia, an application for leave to appeal from the orders of the Federal Magistrates Court summarily dismissing the application for review of the officer’s decision not to refer the fourth request for consideration of the Minister’s exercise of powers under section 417. The application for leave to appeal came on for hearing before Justice Ryan and, on 21 August 2009, Justice Ryan ordered that the application for leave be refused.

It is the decision of Justice Ryan to refuse leave to appeal that is the decision or order which is the subject of the second form of relief claimed in this Court by the plaintiff, namely certiorari to quash the order of Justice Ryan made on 21 August 2009.

As already noted, on 11 September 2009, the plaintiff commenced the present proceeding in this Court.  On 10 February 2010, the Minister filed his summons seeking summary dismissal of the application.  When the application for summary termination of the proceedings in this Court first came on for hearing before me on 17 March 2010, the applicant had filed an affidavit in which he swore, amongst other things, that he could not undertake this case himself without legal assistance and that he had applied for legal aid.  It appearing that an application for legal aid had not been determined, the Minister’s application for summary dismissal was adjourned to today.

When the matter was called on for hearing today, the plaintiff told me that he had since applied for pro bono legal assistance from the Bar Associations, but that that application for pro bono legal assistance had been refused.  In accordance with what had been agreed in the course of proceedings on 17 March 2010, the transcript of the proceedings of that day were made available to Victoria Legal Aid who were good enough to write to the Deputy Registrar yesterday acknowledging receipt of that transcript and advising the Court that, although the plaintiff had sought legal advice from Victoria Legal Aid’s Human Rights and Civil Law Directorate, and had been advised to complete an application for legal assistance, to that date Victoria Legal Aid had no record of having received an application for legal assistance from him for the matter pending in this Court.

As I have indicated to the plaintiff, the relief which he seeks against the Minister is relief which would depend upon the Minister exercising powers under section 417 of the Act. That claim encounters as a difficulty, in my opinion fatal difficulty, the hurdle which is presented by section 417(7) of the Act as was explained by this Court in Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicants S134 of 2002 (2003) 211 CLR 441; [2003] HCA 1: see particularly at pages 460 to 461, paragraphs 44 to 48 in the reasons of Chief Justice Gleeson and Justices McHugh, Gummow, Callinan and myself and also at paragraphs 99 and 100 at page 474 in the reasons of Justices Gaudron and Kirby.

Even if it were to be shown that there had been some jurisdictional error committed in the course of events surrounding the fourth application made by the plaintiff for exercise of powers under section 417 of the Migration Act, the existence of any such jurisdictional error would give rise to what the plurality reasons in Applicants S134 of 2002 referred to as a “fatal conundrum”. As the plurality reasons went on to say - (2003) 211 CLR 441 at 461 paragraph 48:

In the express absence of a duty, mandamus would not issue without an order that the earlier decision of the Minister be set aside.  Further, in that regard there would be no utility in granting relief to set aside that earlier decision where mandamus could not then issue.

So much follows because section 417(7) states in terms that the Minister does not have a duty to consider whether to exercise the power conferred by section 417(1).

Absent the availability of any effective relief which would compel exercise of powers under section 417 of the Migration Act, no arguable basis is established for granting relief of the kind first claimed in the application for an order to show cause, namely prohibition directed to the Minister prohibiting him from taking any steps to remove the plaintiff from Australia.  An order of that kind would not go to intercept the ordinary operation of the Act absent some favourable determination which would entitle the applicant to the grant of a substantive visa permitting him to remain. 

For these reasons it follows that the claim made in the present proceedings against the Minister is doomed to fail and should be summarily terminated. 

Although Justice Ryan filed a submitting appearance and there is, therefore, no application to terminate the proceedings against the first defendant, this is, in my opinion, a case in which it is proper for the Court to act of its own motion in considering whether the proceeding should be permitted to continue as against the first defendant.  As will have been observed from the history of events that I have recorded the particular decision of Justice Ryan which is impugned is a decision refusing leave to the plaintiff to appeal against an interlocutory order made in the Federal Magistrates Court.

Power to grant leave to appeal to the Federal Court of Australia against such an order is a discretionary power and the principles informing the exercise of that discretion are well established.  Having regard to the reasons given by his Honour in support of the refusal of leave, there is, in my opinion, no arguable error which would affect the order which it is now sought to impugn.  In any event, it is open, at least, to very serious doubt whether proceedings by way of constitutional writ should be regarded as available to correct errors in the exercise of discretion to grant leave to appeal, at least where no constitutional or other jurisdictional error is asserted.  Those are not questions upon which I need to embark.  It is enough to say that in my opinion the claim against Justice Ryan should also stand dismissed, there being no arguable case made out. 

At the end of argument the plaintiff indicated that, having regard to the course argument had taken he would seek leave to withdraw the present proceedings on terms that there be no order as to costs.  It is, in my opinion, not appropriate to accede to that request.  The Minister presses the application for summary dismissal.  There is, in my opinion, no sufficient reason to not determine that application.  In my opinion, the proceedings should stand dismissed.  It follows that they must stand dismissed with costs.

The orders of the Court are:

1.        Application for an order to show cause dismissed.

2.        The applicant must pay the second defendant’s costs.

I will adjourn the Court.

AT 10.17 AM THE MATTER WAS CONCLUDED