Singh, Ex Parte - Re Minister for Immigration and Multicultural Affairs of the C of a S257/2000

[2000] HCATrans 789

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S257 of 2000

In the matter of –

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

Respondent

Ex parte -

JAMES SINGH

Applicant

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 18 DECEMBER 2000, AT 9.49 AM

Copyright in the High Court of Australia

MR N.J. WILLIAMS:   I appear for the prosecutor, your Honour.  (instructed by Ron Kessels)

MR R.T. BEECH‑JONES:   If the Court pleases, I appear for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Now, I am not quite sure I understand the legislative framework for all of this.  Is it the Minister’s position, Mr Beech‑Jones, that the document supplied on 14 December ‑ ‑ ‑

MR BEECH‑JONES:   That which was required under 501G.

HIS HONOUR:   ‑ ‑ ‑ is that which is required under 501G?

MR BEECH‑JONES:   Yes, your Honour, notwithstanding the earlier letter we wrote.

HIS HONOUR:   Would that trigger an application for review by the AAT?

MR BEECH‑JONES:   No, your Honour.

HIS HONOUR:   Why not?

MR BEECH‑JONES:   Because the decision was made by the Minister personally and the AAT does not have jurisdiction where the Minister made the decision personally.

HIS HONOUR:   Where do we get that from?

MR BEECH‑JONES:   If your Honour will excuse me, I will just turn up the provision.  If I take your Honour to section 500 of the Act.

HIS HONOUR:   Yes.

MR BEECH‑JONES:   Section 500(1)(a), that is the criminal deportation power.  It is not relevant.  Section 500(1)(b) the AAT is only conferred with ‑ ‑ ‑

HIS HONOUR:   Just a minute, 501?

MR BEECH‑JONES:   Section 500(1), I am sorry, your Honour.

HIS HONOUR:   Just a minute.  Yes, 500(1)(b)?

MR BEECH‑JONES:   Yes, and this is not that kind.

HIS HONOUR:   Because he is not “a delegate”?

MR BEECH‑JONES:   Yes.

HIS HONOUR:   Yes, I follow.  Do you agree with that, Mr Williams?

MR WILLIAMS:   Yes, your Honour.

HIS HONOUR:   It seems so.  Now, does the decision nevertheless attract 475(1)(c)?

MR BEECH‑JONES:   Yes, your Honour, and the grounds set out in 476(1).

HIS HONOUR:   Yes, all right.  I had better ask Mr Williams some more questions ‑ ‑ ‑

MR BEECH‑JONES:   If they are made out, I should add.

HIS HONOUR:   Now, one of your complaints is, is it not, that section 50 ‑ ‑ ‑

MR WILLIAMS:   Section 54, your Honour?

HIS HONOUR:   Yes, that 54(1) was not observed.  Is that right?

MR WILLIAMS:   That is so, your Honour.

HIS HONOUR:   And how does that find its way, if at all, into 476(1), into a ground ‑ is it (1)(a)?

MR WILLIAMS:   It may not find itself into 476 at all, your Honour.  It would appear not to find its way into 476 and, therefore, to be a matter in which relief is only available in this Court because, of course, under 476(3) the grounds of “improper exercise of a power” as set out in 476(1)(d) is to be construed not as including a reference to, in paragraph (d), 476(3)(d).

HIS HONOUR:   Wait a minute.  You have gone ahead of me.  Let us start again.

MR WILLIAMS:   I am sorry.  If your Honour were to start in 476(1)(d):

the decision was an improper exercise of the power ‑ ‑ ‑

HIS HONOUR:   Yes, and then go to (3).

MR WILLIAMS:   Subsection (3), that:

is to be construed as being a reference to:

and then there is (a), (b) and (c) that are included and then:

but not as including a reference to:

.....

(e)  failing to take a relevant consideration into account ‑ ‑ ‑

HIS HONOUR:   Yes.  So?

MR WILLIAMS:   Section 476(3)(e) appears to be a ground which is not available in the Federal Court under 476.

HIS HONOUR:   That is a relevant consideration to the exercise of a discretion in some way is it?   What does the phrase “relevant consideration” mean in (d) and (e)?

MR WILLIAMS:   A mandatory consideration in the way in which it has been construed in previous authority.

HIS HONOUR:   Now, what other grounds have you in terms of 476?  I know you have natural justice.  What else?

MR WILLIAMS:   Grounds that may be fitted within 476, your Honour ‑ it may be arguable that a failure to comply with section 54(1) constitutes a failure to comply with procedures that were required by the Act to be observed.

HIS HONOUR:   Yes, that is right.

MR WILLIAMS:   But we perceive the overlap between that and the exclusion or the potential overlap ‑ of course, all of this is open at this point ‑ between that and the exclusion in 476(3)(e) to be sufficiently problematic to justify starting in this Court and asking that the Court determine the matter.  If it were to go back to the Full Court, we would have a single judge, a Full Court.  The potential costs of the litigation could be very large.

HIS HONOUR:   Yes.  I am worried about the Court’s lists.

MR WILLIAMS:   Yes.

HIS HONOUR:   Now, the other point I wanted to ask about: 501G(4) - - -

MR WILLIAMS:   Yes, your Honour.

HIS HONOUR:   Does that mean that 476(1)(a) does not engage: “A failure to comply with” 501G?

MR WILLIAMS:   There is at least a substantial doubt as to that point, your Honour.

HIS HONOUR:   Have you a ground relying on the deficiency of 501G?

MR WILLIAMS:   No longer, your Honour, no.  We had that in the original application but at this point we have not pressed it.  I should say, your Honour, that neither senior counsel nor I have had the opportunity properly to consider the reasons that were supplied on Thursday and ‑ ‑ ‑

HIS HONOUR:   I think it might be best if I stood it over, but I am just a little worried - the tentative view is that was supplied is not a 501G notification anyway.

MR WILLIAMS:   What was supplied in August, yes.

HIS HONOUR:   What was supplied the other week is too late and what was supplied before was defective.

MR WILLIAMS:   Yes.

HIS HONOUR:   So there has been no compliance with 501G.

MR WILLIAMS:   That would be our contention, your Honour.

HIS HONOUR:   But Mr Beech‑Jones can say, well, so be it, 501G(4), and the significance of the document supplied recently then becomes evidentiary in a way, does it, to some of the other grounds?

MR WILLIAMS:   Yes, that argument is certainly available to him, your Honour, and we do not place primary reliance upon the failure to supply reasons because of that.

HIS HONOUR:   What is the current personal situation of your client?

MR WILLIAMS:   Our client is in Fiji.  He is the father of a 12‑month‑old daughter who is ‑ ‑ ‑

HIS HONOUR:   He is at present out of the country.

MR WILLIAMS:   He is out of the country.  His daughter and his wife are in the country.

HIS HONOUR:   Yes, I follow.

MR WILLIAMS:   Your Honour, our preferred course would be, if I might say, that if your Honour were satisfied that we have a prima facie case on either of the principal points that we put, failure to take account of relevant considerations or denial of natural justice on the Teoh basis, that your Honour grant an order and give us leave to amend so that we have the opportunity to consider and take such steps are as appropriate.

HIS HONOUR:   Yes.  Mr Beech ‑Jones may want to attack Teoh for all I know.

MR WILLIAMS:   I would not be surprised, your Honour.

HIS HONOUR:   I would not either.  Not that I am encouraging him.

MR BEECH‑JONES:   Can I just say something?  Can I just say, your Honour, I may have a problem with that because there is a letter saying we are do not comply with a direction and the direction says that children’s best interests are a primary consideration, so it really may be an Aala/Haoucher point that would be raised, even if there was an attack on Teoh.

HIS HONOUR:   Just explain that to me again.

MR BEECH‑JONES:   Yes.  There was a letter sent to the prosecutor saying that when the Minister considers the decision the Minister will take into account a direction is issued about these type of cases.  The direction says that in exercising the power the discretion the Minister will take into account the interests of the child as a primary consideration, so that on any view the foundation for the legitimate expectation in this case is not the treaty, it is the letter and the direction.  So if somebody wanted to do that ‑ I have no instructions ‑ this would not be the vehicle to do it.

HIS HONOUR:   Yes, I understand.  How long would you need to consider your position after the letter?  I was thinking of dealing with it some time late in January.

MR WILLIAMS:   Yes, we could be ready by then, your Honour.

HIS HONOUR:   Just to see whether, having reformulated what you may need to reformulate, I should give you an order nisi.

MR WILLIAMS:   We can certainly file by a date in ‑ it is possible that we can do it this week, your Honour, but it is not a particularly good week.

HIS HONOUR:   It would only have to be reserved perhaps and it is not the best way of doing it.

MR WILLIAMS:   Yes.  Your Honour, I apprehend both senior counsel and I will be back in chambers from 22 January.  We could file something by the 25th.

HIS HONOUR:   Of January?

MR WILLIAMS:   Yes.

HIS HONOUR:   I direct that any amended draft order nisi and supplementary submissions by the applicant be filed and served on or before 25 January 2001, any further submissions by the Minister be filed and served on or before 31 January 2001.  I will stand the matter over before me in Sydney on Friday 2 February 2001 at 9.30 am.

MR BEECH‑JONES:   Can I just assume that your Honour wants us both to address the extent to which any part of the proceedings can be remitted?

HIS HONOUR:   Yes, amongst other things.  Yes, that is right.  Costs of today will be costs of the application.  Anything else?

MR WILLIAMS:   No, thank you, your Honour.

HIS HONOUR:   Yes, thank you, gentlemen.  I will now adjourn.

AT 10.06 AM THE MATTER WAS ADJOURNED
UNTIL 2 FEBRUARY 2001