Shahi v Minister for Immigration and Citizenship

[2011] HCATrans 105

[2011] HCATrans 105

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M10 of 2011

B e t w e e n -

SAYED ABDUL RAHMAN SHAHI

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Application for order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 13 APRIL 2011, AT 10.36 AM

Copyright in the High Court of Australia

MS L.G. DE FERRARI:   Your Honour, if the Court pleases, I appear for the plaintiff.  (instructed by Victoria Legal Aid (Civil Law Section))

MR W.S. MOSLEY:   If the Court pleases, I appear for the defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes, Ms De Ferrari.

MS DE FERRARI:   Your Honour, this is the hearing on the summons which was filed in respect of an application for an order to show cause.

HER HONOUR:   That is the summons for directions dated 27 January 2011?

MS DE FERRARI:   That is so, your Honour.  Now, that summons simply sought directions for the conduct of the proceeding.  Some proposed orders were set out in the submissions that were filed pursuant to rule 25.03.2.

HER HONOUR:   Yes, I have read those.

MS DE FERRARI:   Can I explain why it was done that way, your Honour?  The application had to be filed on that date to be within the 35‑day time limit in respect of the refusal decision for the plaintiff’s mother.  However, at that point, when it was filed my instructors had made two requests under freedom of information legislation which sought documents on a range of topics but relevant to today, and to completing the record, documents relating to the plaintiff’s process by which he got his protection visa.  I will come to that ‑ ‑ ‑

HER HONOUR:   You have no action in relation to that, have you?

MS DE FERRARI:   No, your Honour, we do not, but the regulations make the status of the plaintiff as a proposer and his having an 866 visa and other aspects of that - for example, that at the time he was granted that visa the relationship of the applicants for the two visas was declared to immigration makes a lot of things about the plaintiff as proposer relevant to this case.

HER HONOUR:   What do you say is relevant about his status as proposer?  You have a statutory construction issue, have you not, which is about whether or not the proposer must be 18 at the time of the application made on behalf of relatives, or 18 at the time of the decision in relation to the visa for relatives as proposed.

MS DE FERRARI:   That is right.

HER HONOUR:   How would I have any jurisdiction to deal with freedom of information application in respect of the proposer’s visa?

MS DE FERRARI:   Your Honour does not.  I was explaining that at the time we were seeking to complete the evidentiary record ‑ ‑ ‑

HER HONOUR:   Are you moving in the direction of saying you do not have an issue about this now?

MS DE FERRARI:   No, we do because the documents still have not been provided.  Your Honour, taking what I was saying about the plaintiff’s process by which he got a visa and, as I say, that is relevant to how the regulations work, your Honour will have seen that all we have is what is annexed to his affidavit.  So we have his request for RSA – and your Honour would know about the RSA from the case of Plaintiff M61 – and then we have a document evidencing the grant of an 866 visa.  We simply do not have any document between those two.  We had asked them, but we do not have them. 

So we are now proposing an order that bypassing the freedom of information – we had thought that by the time this matter came before your Honour we would have received them as part of the request that we had made.  So I am not seeking any review about those freedom of information requests.  I am laying the background as to why the record is, we say, still incomplete.

That is one category of documents.  The other ones, your Honour would have seen that the issue of the plaintiff’s date of birth is something of a problem and there are a number of inconsistent policies that we have given the evidence that we could about that in the affidavit of Krystyna Grinberg.

HER HONOUR:   May I just indicate now, because it may be of assistance for me to do so now, in the circumstance where you wish to raise an issue of statutory construction, as identified by you in the outline of your submissions, one way in which that might proceed before this Court would be on a special case.  That has been done before, as you would know.

MS DE FERRARI:   Yes.

HER HONOUR:   So a level of co‑operation in relation to the preparation of the special case may obviate what might be called a lot of interlocutory skirmishing in relation to a matter of this kind.

MS DE FERRARI:   I accept what your Honour says.

HER HONOUR:   What I am having trouble understanding is how I would have jurisdiction to order the defendant to provide to you the documents you describe in paragraph 3 in your minutes of proposed orders, a copy of which I am assuming Mr Mosley has.

MS DE FERRARI:   Yes.  Your Honour, I can perhaps ‑ ‑ ‑

HER HONOUR:   Because I am having trouble seeing how that relates to the limited issue of statutory construction.

MS DE FERRARI:   Yes.  Does your Honour have a copy of the regulations in question?

HER HONOUR:   I have just asked my associate to bring them into Court.  I do have copies of 202.21.

MS DE FERRARI:   If I can hand to your Honour an extract from the Migration Regulations as they were at the relevant time.  I do not believe anything has changed.

HER HONOUR:   Which ones do you want to rely on?

MS DE FERRARI:   I just wanted to show your Honour the regulations in regard to 202, but I am also providing definitions of “member of immediate family” and “member of the family” in case that is of assistance to your Honour.

HER HONOUR:   Yes, thank you.  So I have 202.21.

MS DE FERRARI:   Yes.

HER HONOUR:   You want to look at ‑ ‑ ‑

MS DE FERRARI:   If it is 202.211 and then subsection (2) and then your Honour will see that in paragraph (a) there is a requirement to be proposed.

HER HONOUR:   Yes.

MS DE FERRARI:   Then in (b) there are a number of requirements that link to the status of the proposer so, for example, in (b)(ii):

the proposer is, or has been, the holder of a Subclass 866 (Protection) visa ‑ ‑ ‑

HER HONOUR:   Yes, and we know that the proposer is a holder of a Subclass 866 visa.

MS DE FERRARI:   Well, we do, yes.  Then if your Honour goes to (ba): 

the application-

this is the application by the mother –

is made within 5 years –

and that is so –

(c)      the applicant continues to be a member of the immediate family of the proposer –

at the date of the application by the mother, and –

(d)      before the grant of that visa, that relationship was declared to Immigration.

Now, in the usual case, one would just look at an application under the Act for a Subclass 866 visa and see what the declarations are there in terms of who are the other members of the family.  We do not have that.

HER HONOUR:   There is no contest, is there, that this proposer has brothers and sisters and one sister has a young daughter.  She is a divorcee.  None of that is in contest, is it?

MS DE FERRARI:   I do not know, your Honour.

MR MOSLEY:   I would not have thought so, your Honour.

HER HONOUR:   No.  In terms of the special case, if that is the direction in which this matter goes ‑ ‑ ‑

MS DE FERRARI:   Then if it goes by special case – and there is no contest about any of those paragraphs ‑ ‑ ‑

HER HONOUR:   Well, Mr Mosley just indicated he would not anticipate any.

MS DE FERRARI:   Yes, then we would not need those other documents.  No, your Honour, that is so.

HER HONOUR:   No.  This has all the hallmarks of a matter which should proceed, possibly, by special case and both yourself and Mr Mosley have experience in a level of co‑operation which allows a point like the one you wish to agitate to be brought forward for efficient disposition by this Court.

MS DE FERRARI:   Yes, your Honour.  Co‑operation – we would certainly deal with what is in the proposed minutes at paragraph 3.  That, in a sense, assumes that the defendant accepts that the case stated in this Court – and at this moment we have not really had an indication about that, your Honour ‑ ‑ ‑

HER HONOUR:   I know that in your outline of submissions you have, in great detail, identified your conclusions that the matter is not capable of remission.

MS DE FERRARI:   Yes.

HER HONOUR:   I have not, of course, heard a contrary argument in relation to that.  Mr Mosley, are you of a mind to give some indication about that, or have you not received any instructions in relation to that? 

MR MOSLEY:   No, if I can just ‑ ‑ ‑

HER HONOUR:   For the purposes of today’s summons.

MR MOSLEY:   Yes.  If I could just say simply, I have no instructions about that at the present time and I apologise for that.

HER HONOUR:   You have had the opportunity to see submissions advanced.

MR MOSLEY:   Yes, it is being considered, as I understand it, but we do not have specific instructions about that at the moment.

HER HONOUR:   Once again, a level of co‑operation may resolve that without – I mean, it may be there has to be an argument before me, and a ruling, but it may also be that upon consideration, that matter is resolved one way or the other, that is to say either the Minister draws to your attention some possibility of remitter, which could then be the subject of a consent order, or the Minister accepts the arguments contained in your submission and the matter proceeds on the basis that it is then an appropriate matter to be dealt with in this Court.

MS DE FERRARI:   Yes, your Honour.  The logical order then, your Honour, if I can summarise, appears to the plaintiff to be that first there is an indication from the defendant either that he accepts that remitter is not possible, or ‑ ‑ ‑

HER HONOUR:   It does not sound like that is going to happen today.

MS DE FERRARI:   No.

HER HONOUR:   Obviously it is a matter under consideration.

MS DE FERRARI:   I understand that -or, whether or not remitter is possible, the defendant accepts that the matter, in any event, has the level of importance that justifies staying in this Court and that would bypass the arguments about the ability of remitter.  There might be some interest in having, at some point, a ruling on whether remitter is possible or, put another way, whether the Federal Magistrates Court has jurisdiction because to my knowledge there are other people in similar situations to the plaintiff and, of course, if there is nowhere else to go, then those applications would be coming – if there are any, but if the federal magistrate had jurisdiction that would be another place where future applications could be lodged.  So there might be some interest in that, but for the purpose of this ‑ ‑ ‑

HER HONOUR:   Well, the benefit of a remitter, if it is possible, is that this Court then has the benefit of conclusions formed by courts below.

MS DE FERRARI:   Yes.

HER HONOUR:   But I do understand that there are limited circumstances in which a remitter of certain decisions is not possible.  There was a case not so long ago – I do not have the citation with me, but it was Berenguel and it involved – and both yourself and Mr Mosley would be familiar with it – a limited statutory point which proceeded by way of special case.

MS DE FERRARI:   Yes.  This is, in a sense, quite similar to Berenguel.

HER HONOUR:   It struck me as having some similarities.

MS DE FERRARI:   Yes.  It has a couple of complications from the other two decisions, as your Honour would be aware but, by and large, the main issue is again one that requires some elucidation about how the so‑called criteria at the time of decision and criteria at the time of application interact in this particular context. 

HER HONOUR:   I would have thought it would not be difficult for the parties here to formulate a question or a series of questions in respect of that.

MS DE FERRARI:   It would not, your Honour.  I accept that.  In that case, your Honour, the plaintiff does then make the submission that the case is one suitable for a special case and that the parties should endeavour to bring that before your Honour at the earliest opportunity.  The other orders, including the extension of time, can probably be dealt with at that later time as well, your Honour.

HER HONOUR:   If they are not opposed they can be made today.

MS DE FERRARI:   They may not be opposed and that would clear the decks of those two problems as well.

HER HONOUR:   Yes.  We will hear from Mr Mosley, but it may be the extensions of time as required should be granted today and possibly the summons for directions be adjourned for not too long a period to allow some discussions to take place about how the matter might best proceed.

MS DE FERRARI:   The plaintiff would be content with that and a short adjournment to just after Easter would seem appropriate.

HER HONOUR:   Yes, thank you.

MS DE FERRARI:   If your Honour please.

HER HONOUR:   Yes, Mr Mosley.

MR MOSLEY:   Your Honour, I have no instructions in respect of the issue of the special case and they would have to be sought.

HER HONOUR:   Yes.  It is just the resonance with Berenguel suggests that that is one possibility.  Of course, it is not the only possibility.

MR MOSLEY:   No, I follow that, your Honour.  This, of course, is the first return of the summons for directions and the plaintiff was only seeking, as they say in the outline of submissions, certain orders regarding documents under FOI and further directions regarding affidavit material.

HER HONOUR:   I think it is now accepted that paragraph 3 is not pressed.

MR MOSLEY:   No.  If that is the case, your Honour, I will not pursue that.  I was going to make submissions with respect to the fact that there had been three requests and two have been, in our submission, fully complied with and there is one other request which even the plaintiff said that it is a crossover, if I can put it that way, or “there is some overlap with an earlier request anyway”.

HER HONOUR:   Of course, with a special case there can be an agreement about a particular fact, in any event, which obviates the need for all of this.

MR MOSLEY:   There could be, your Honour, yes.

HER HONOUR:   Which may obviate it.

MR MOSLEY:   We would be content to consider that issue and seek instructions regarding that together with the extension of time issue and the issue concerning – well, anything else, I suppose, that may come out of that.  At this stage it would take, in our submission, some time.  We have Easter next week.  No doubt that will complicate matters in terms of timeframes and getting specific instructions regarding this and regarding the special case issue and extension of time issue, et cetera.  So I do not have any particular thoughts with respect to that, save that we would seek some reasonable time to be able to consider those matters and, of course, the remittal matter as well.

HER HONOUR:   Yes.  I will ask Ms De Ferrari, but one possibility would be Wednesday, 18 May, when I will be back from Canberra and in Melbourne.  The other possibility would be Wednesday, 27 April, but from what you say, that might just be a little soon given the multiplicity of the issues.

MR MOSLEY:   I would think – there are a number of issues.

HER HONOUR:   I am not perfectly sure, and perhaps I will make an inquiry about whether the statutory construction issue is to be distinguished from issues in relation to the divorced sister and her daughter.

MR MOSLEY:   Yes, well there are three ‑ ‑ ‑

HER HONOUR:   It was not perfectly clear to me that, having regard to the fact that the plaintiff accepts no challenge on the merits is available in relation to the relevant decisions, but wishes to pursue a jurisdictional error type challenge, it was not clear to me whether it was the same one in relation to all of the relatives or whether there were some distinctions to be made.  So that is probably a matter that needs to be sorted out.

MR MOSLEY:   Right.  As I understand it, there are three so‑called decisions they seek to challenge.

HER HONOUR:   Yes.

MR MOSLEY:   There was the decision of 28 December, which was the primary decision, if I can put it that way, I think, and then there is another decision that was made to refuse to one of the applicants and then there is another related one.

HER HONOUR:   There seem to be two decisions, one to separate it out ‑ ‑ ‑

MR MOSLEY:   Yes, on 10 June, I think.

HER HONOUR:   Then a decision to refuse which predated the adverse decision in respect of the mother.

MR MOSLEY:   That is right.

HER HONOUR:   I think it was 8 July 2010.

MR MOSLEY:   Yes, that is the decision to refuse.

HER HONOUR:   That is the decision to refuse.

MR MOSLEY:   On 12 May there was some other decision taking out the sister and daughter and determining to assess those separately, I think.

HER HONOUR:   Until it is clarified precisely what the contentions are in relation to those earlier decisions, it seems to me you need that clarification to then move on to the “remitter or not" argument.

MR MOSLEY:   Yes, I think that is right, your Honour.  There would be some confusion about that.

HER HONOUR:   Do you want to say something, Ms De Ferrari?

MS DE FERRARI:   I can assist, your Honour.

HER HONOUR:   Yes.

MS DE FERRARI:   Your Honour, the decision to remove the sister and her daughter, or the separate assessment decision, involves a small issue of construction from the same regulations but in a different part of the regulations and ‑ ‑ ‑

HER HONOUR:   This is about being a dependant.

MS DE FERRARI:   This is about being a secondary applicant.

HER HONOUR:   A secondary applicant.

MS DE FERRARI:   The decision, the letter that says “We have removed you and we’re going to assess you separately” then shows that that is done, we say, on the basis of wrongly construing those regulations to say “You” – the sister – “have to be a member of the immediate family of the proposer” and the regulations do not ask that.  They ask that she be a member of the immediate family of the mother, who is the primary applicant.  So it is a very small issue of construction.

HER HONOUR:   A very narrow question.

MS DE FERRARI:   Very narrow question.

HER HONOUR:   Once again, if you had a question on a special case about the age, it would not seem greatly complicated to have a narrow question in relation to the same regulations affecting the divorced sister.

MS DE FERRARI:   Not at all, and if we are right about that construction issue, then the separate decision in respect of her would go because she would have to have been considered with the mother and then we are back in the camp of dealing with the primary decision and the primary construction issue.

HER HONOUR:   The primary decision and the issue about the age of the proposer.

MS DE FERRARI:   That is so.

HER HONOUR:   Yes.

MS DE FERRARI:   So, in my submission, it can all be dealt with by way of the special case.  As your Honour has indicated it will be another small ‑ ‑ ‑

HER HONOUR:   Subject to the argument about whether it should be remitted or not.

MS DE FERRARI:   If it can.

HER HONOUR:   Yes.  Thank you for that clarification.  Yes, Mr Mosley.

MR MOSLEY:   I do not know whether any other matters, save for when the matter should be brought back then, that require ‑ ‑ ‑

HER HONOUR:   Well, then, looking at the minutes of proposed order, you are content that paragraphs 1 and 2 of the proposed order be made?

MR MOSLEY:   Yes, well, as I submit to your Honour that can be dealt with at a later date and we have no instructions regarding that at the present time.

HER HONOUR:   Are you foreshadowing some debate about consenting to the extensions?

MR MOSLEY:   I am not in a position to say.

HER HONOUR:   Right.

MR MOSLEY:   As I understand it, and my learned friend will correct me if I am wrong, I think it is only in respect of the sister ‑ ‑ ‑

HER HONOUR:   I think that is right.

MR MOSLEY:   The other subsidiary matters - I think that there is an issue about time.  I could be wrong about that.  My learned friend says I am correct about that, so it is ‑ ‑ ‑

HER HONOUR:   If there is going to be a possible issue about that, perhaps the best course – and I think your learned friend accepts this – is to postpone dealing with paragraphs 1 and 2 as long as the adjournment in relation to the summons for directions is not too long.

MR MOSLEY:   No, but long enough to enable us to get instructions.

HER HONOUR:   Long enough to enable you to deal with ‑ ‑ ‑

MR MOSLEY:   I just know with these things the date creeps up ‑ ‑ ‑

HER HONOUR:   Well, I want it to be long enough so that if this matter is a suitable matter to proceed by way of special case, that progress will have been made by the next return date. 

MR MOSLEY:   Yes.

HER HONOUR:   It seems to be that 9.30 on Wednesday,18 May is probably a reasonable time.  Does that suit the convenience of counsel?

MR MOSLEY:   Your Honour, perhaps if your Honour could give liberty to apply in case there is some difficulty with respect to that.

HER HONOUR:   Yes, all right.

MR MOSLEY:   Obviously we do not need to deal with the issue about referral to a Full Court or any of those other matters.

HER HONOUR:   No, that is really all to be dealt with later.

MR MOSLEY:   And reserve costs – I think they probably ‑ ‑ ‑

HER HONOUR:   Yes, anything further?

MR MOSLEY:   I do not think so, your Honour.

HER HONOUR:   Anything further?

MS DE FERRARI:   No, your Honour, and 18 May would suit.

HER HONOUR:   Thank you. 

The orders I now make in relation to the plaintiff’s summons for directions dated 27 January 2001 are:

1.Further hearing of the summons adjourned until 9.30 on Wednesday, 18 May 2011.

2.There be liberty to either party to apply on three days’ notice.

3.Costs reserved.

MR MOSLEY:   If the Court pleases.

HER HONOUR:   The Court will now adjourn.

AT 11.03 AM THE MATTER WAS ADJOURNED