Smirnov, Ex parte- Re Min for Immig & Multicultural Affairs

[1997] HCATrans 233

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M66 of 1997

In the matter of -

An application for Writs of Prohibition, Mandamus, Certiorari and Habeas Corpus and injunctions against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte -

YEVGENI PAVLOVICH SMIRNOV

Prosecutor/Applicant

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 20 AUGUST 1997, AT 10.17 AM

Copyright in the High Court of Australia

MR J.A.A. HORAK:   I appear on behalf of Mr Smirnov, the prosecutor.  (instructed by M.S.C. Legal Services)

MS R.M. HENDERSON:   I seek leave to appear for the Minister.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Mr Horak.

MR HORAK:   Does your Honour have the affidavit of Yevgeni Pavlovich Smirnov?

HIS HONOUR:   I have what is described as an affidavit. I must say I would not describe it as an affidavit myself, Mr Horak. It rather looks like a statutory declaration with assertions. The profession has got to understand that an affidavit merely puts on paper the evidence that would be given in a witness box. It contains assertions, it contains arguments and it is in a form ‑ yes, but I have read it. But, Mr Horak, what I want to suggest to you is why should I not remit this matter to the Federal Court under section 44 of the Judiciary Act?

MR HORAK:   Your Honour, in these proceedings it is difficult because what has actually happened is that there has not been a Merits Review and in that case it is difficult for you to do that, your Honour.  If there has not been a decision made, then it cannot be reviewed and it is in the original jurisdiction of this High Court - - -

HIS HONOUR:   I am afraid you are under some misconception as to what this Court's jurisdiction is.  If I understand your documentation, among other things you are seeking a writ of prohibition and mandamus in this Court.

MR HORAK:   Yes, your Honour.

HIS HONOUR:   Under section 39B(1) of the Judiciary Act the Federal Court has jurisdiction to hear such an application.  Subject to hearing what Ms Henderson says, it seems to me there is no reason why this matter cannot be remitted.  It is not a judicially reviewable decision, at least it does not appear to me to be at the moment, under Part 8 of the Migration Act and there is nothing - indeed, there seems to me to be significant advantages from your client's point of view in having the matter remitted, one of them being the issue of bail.  I do not know whether you are aware of my reasons for judgment in Lim's Case, but I expressed the view that there is no power to grant bail in this type of case unless there is some statutory authority for it. 

Seventeen years ago, Justice Stephen took the view in a case called Chan that section 31 of the Judiciary Act gave that power.  I have grave doubts about the correctness of that decision, but there are a series of cases in the Federal Court, Msilanga being one of them, in which the Federal Court has held that it has power to grant bail under section 19 to section 23 of the Federal Court Act.  So it seems to me that you are on far stronger grounds legally, perhaps subject to hearing what Ms Henderson says, in the Federal Court than you are in this Court, quite apart from the inconvenience of this Court to have to determine bail issues in what may well be a contested hearing.

Now, having said that to you, is there anything further you want to say?

MR HORAK:   There is, your Honour, because my client has a prima facie right to bail.

HIS HONOUR:   That is completely incorrect.  He has no prima facie right to bail at all.  He is liable to be deported under the legislation and it has been said in a series of cases in the Federal Court that a person in your client's position has no prima facie right to bail.  In fact, quite the contrary.  You have to make a positive case.  Justice Lockhart has laid down the principles in one of the cases in the Federal Court and if I recollect correctly he laid down three conditions which would have to be met before a person in your client's position could get bail.  So it is just completely wrong to say he has got a prima facie right to bail.  He is liable to be deported and there is an order against him.  As the Act makes clear, the fact that an order has been made under section 41(2) of the AD(JR) Act does not affect the validity of that order in any way.

MR HORAK:   My argument would be that the fettering by the statute ‑ ‑ ‑

HIS HONOUR:   The what?

MR HORAK:   The Migration Act does not allow Mr Smirnov to apply for bail at first instance, therefore it is ultra vires ‑ ‑ ‑

HIS HONOUR:   What is ultra vires?

MR HORAK:   The Act.

HIS HONOUR:   How can the Act be ultra vires because it does not allow him to apply for bail?

MR HORAK:   It stops him or prevents him bringing any application to either the Immigration Review Tribunal and he is not entitled, under the bail provisions of section 253(9) because he is not a - ‑ ‑

HIS HONOUR:   That is true, but where does it lead you?  It does not lead anywhere.  The mere fact that the legislation is so framed does not mean that it is invalid.  The Parliament has very large powers in relation to immigration and emigration and they have elected to enact this.  Now, you may criticise it on policy grounds, but in terms of its constitutionality it would be a difficult argument to mount to say that the legislation is invalid.

MR HORAK:   Your Honour, I would submit that the Act then purports to fetter this Court's jurisdiction with allowing Mr Smirnov to bring an application for bail and therefore it is unconstitutional.

HIS HONOUR:   It does not fetter this Court's jurisdiction at all and there is another question whether this Court has any power.  Where does the Court have a power to grant bail?  Where does it get its power from?

MR HORAK:   By bringing an application for habeas corpus before your Honour then ‑ ‑ ‑

HIS HONOUR:   Where does the Court get jurisdiction to grant habeas corpus?

MR HORAK:   In its original jurisdiction and through the Judiciary Act in section 75, your Honour, section 75(5)(f).

HIS HONOUR:   You have got an application under 75(v) for mandamus or prohibition but where does the Court get power to grant bail?

MR HORAK:   It protects a common law provision, your Honour.

HIS HONOUR:   What do you mean by "protects a common law provision"?

MR HORAK:   Your Honour, it would be a ludicrous position, with respect, if a non-eligible non-citizen, who is able to bring an application for a bridging visa and, concurrently with that - ‑ ‑

HIS HONOUR:   But your client has got a visa.

MR HORAK:   He is a permanent resident, yes, your Honour.

HIS HONOUR:   He has a visa.  It has not been cancelled, so far as I can see from the materials before me.

MR HORAK:   But he is prohibited from bringing an application for bail to the Immigration Review Tribunal because he is ‑ ‑ ‑

HIS HONOUR:   But that is because he has been subjected to an order under section 200 of the Act.  Courts do not have general power to just make orders.  We are not a legislature.  As Justices Issacs and Rich pointed out in this Court some 60 odd years ago, a court of law has no power to give effect to any but rights recognised by law, and under the Migration Act your client is both liable to be deported and liable to be detained pending, and that is the law, and unless you can point to some other power such as the Federal Court has under section 23 of its legislation, then I cannot see any power.

But whether or not a matter is remitted under section 44(1) is a matter for this Court. It seems to me that there is just no advantage at all in this Court entertaining the matter.

MR HORAK:   If your Honour is so minded then, will you remit the matter to the Federal Court in Melbourne.

HIS HONOUR:   Certainly, yes.  But first of all, before I make any such orders, I would want to hear from Ms Henderson to see what she has to say about the matter.

MS HENDERSON:   Your Honour, as your Honour already apprehends, the prosecutor in this case is a person who is liable to be the subject of a deportation order.  The relevant provisions in the Migration Act are in a relatively small compass and if I may hand up a list to your Honour.  Section 253 of the legislation provides for the arrest of deportees by persons described as "officers", presumably being officers of the Department of Immigration in that context, but of importance and a matter unfortunately which seems to have escaped the consideration of those advising the prosecutor in this matter, is subsection (9) which reads:

In spite of anything else in this section, the Minister or the secretary may at any time order the release, either unconditionally or subject to specified conditions, of a person who is in detention under this section.

Your Honour, as the matter was originally pleaded, the Minister apprehended that what was actually challenged in this case was the decision of the officer under section 253(1) to arrest the person without warrant.  We have only come to appreciate, since submissions were served on us late yesterday, that apparently my learned friend perceives himself as dealing with a refusal by the Minister to exercise powers under subsection (9).  Your Honour, there is no evidence before you that the Minister has been asked to exercise those powers.  And we would say, really, there is no efficacy in this matter in sending it to the Federal Court.  My learned friend ought to deal with his client's case under subsection (9), make the relevant application, put forward the relevant material for consideration.

HIS HONOUR:   That may be, but still it does not seem to me to be a reason why I should not remit the matter to the Federal Court.  He is seeking prohibition and mandamus.  It is not easy to determine, with great respect, just what is the precise basis of this claim.  There are claims of denial of natural justice and failure to take into account relevant factors and res judicata and double jeopardy.  But I might find out from Mr Horak what exactly is the basis of his claim.  Just excuse me, please, Ms Henderson.  Mr Horak, what is the  ‑ ‑ ‑

MR HORAK:   If I may just reply to that. 

HIS HONOUR:   You will get your opportunity to reply at the end.  I just wanted to know at this stage just what is the basis of your claim in this particular case.  What is the act that you are seeking to prohibit or injunct or order to be fulfilled?

MR HORAK:   That he be released from detention, your Honour.  The deportation order has been stayed.

HIS HONOUR:   Yes, I know, but what is the basis - I know that is what you are seeking, but what is the basis that he be released from detention?

MR HORAK:   Surely the Bail Act itself applies, your Honour.

HIS HONOUR:   What, the Bail Act?

MR HORAK:   Yes, your Honour.  He has a right to be released to prepare his case.

HIS HONOUR:   Where does he get this right from the Bail Act?  What Bail Act are we talking about?

MR HORAK:   The Victorian Bail Act 1977 it would be, your Honour.

HIS HONOUR:   The Victorian Bail Act deals with criminal cases.  This has nothing to do with a criminal case.

MR HORAK:   Your Honour, in so far as it has not, the Minister made a decision to deport on the basis of his criminal behaviour.

HIS HONOUR:   That is on one view open to the Minister under the Act, not only on one view.  If your client comes within 201 of the Migration Act the Minister may order the deportation.  Now, are you challenging the deportation order?

MR HORAK:   We are also challenging, your Honour - my learned friend made submissions here with respect to section 253(9) saying that the Minister had made that order and that we were challenging ‑ ‑ ‑

HIS HONOUR:   I do not think she said that the Minister has made an order.  She said the Minister has not been asked to make an order.

MR HORAK:   The argument runs, your Honour, that the Minister by way of his servants or agents, which are officers of the Crown, and a decision was made on 14 July 1997 - and that document is exhibited as YPS9, referred to in the affidavit of Smirnov sworn on 29 July, and the final paragraph reads, your Honour:

I would again reiterate that Mr Smirnov will not be released pending the outcome of his Administrative Appeal Tribunal Review application.

Now, that may be a year away, your Honour.

HIS HONOUR:   That may well be.  That may be the case, but you are dealing there at an administrative level.  Have you put in an application to the Minister as such?

MR HORAK:   No, we have not, your Honour.

HIS HONOUR:   That being so, it does not seem to me that it can be fairly said that the Minister has refused to order the release.  But even if he did refuse to order the release, what relief would you be seeking?  Would you be seeking an order against that refusal?

MR HORAK:   Yes, your Honour. 

HIS HONOUR:   Well, you certainly do not ask for it in the present proceedings and you have a number of problems about it at any event.  After all, it is an unfettered discretion, no doubt fettered only by the objects of the Act, but ‑ ‑ ‑

MR HORAK:   Your Honour, in so far as it may be an unfettered discretion, it still has to be exercised within the bounds of the rules of natural justice and if it is not done so, then decision is ‑ ‑ ‑

HIS HONOUR:   If he has not been asked, it is another question.  It is another question altogether.  But look, it is not before me at the moment.  There has been no request of the Minister and - I have interrupted Ms Henderson's submissions.  She is seeking to persuade me that I should hold my hand at this stage and do nothing.  I am not inclined at the moment, but you will get your opportunity to reply to whatever she further has to say.

MR HORAK:   Thank you, your Honour.

MS HENDERSON:   Your Honour, what I was actually leading to was that there really is no efficacy in the proceedings at the moment.  There is no decision to be dealt with.

HIS HONOUR:   It is difficult even now, after that interlude, to find out exactly what they are after. On one view of their papers they are seeking prohibition on the basis that the order itself was bad because he was not given a hearing before the Minister exercised his power or, on another view, that the Minister has failed to take into account matters. Sooner or later they are going to have to make up their mind what they are going to do: are they going for a Merits review or are they seeking an exercise of this Court's jurisdiction under 75(v) of the Constitution. But it seems plain to me that the Federal Court has got jurisdiction if we remit the matter. Section 39B of the Judiciary Act gives it jurisdiction in respect of matters in which prohibition or mandamus is sought.  According to their jurisprudence they have power to allow bail.  Whether that would apply to this remitter type matter is another argument which will have to be dealt with at some stage or other.  But my inclination is to remit the matter.  It does not seem to me that this Court should really be dealing with or hearing applications for bail in respect of these matters, Ms Henderson.  Unless you can see some jurisdictional reason, I intend to send it down.

MS HENDERSON:   Your Honour, the only matter I wanted to raise was at the moment I think the proceedings are, with respect to my friend,

misconceived.  They are challenging an apparent alleged failure on the part of the Minister to do something when in fact the Minister has unquestionably made a deportation order against this individual, that is before the AAT right now for Merits review ‑ ‑ ‑

HIS HONOUR:   Yes, the way I read the material was that they were seeking to attack the validity of the order on administrative law review grounds.  Either it was made beyond power or improperly or without hearing the applicant.  It is all very vague.  It will have to be sorted out, but it does not seem to me that this is the place to sort it out.

MS HENDERSON:   If your Honour pleases.  May I simply add that I think the decision of Justice Lockhart which your Honour referred to was probably Unlugnc.

HIS HONOUR:   Yes.

MS HENDERSON:   That may be of some assistance to my learned friend.  Your Honour, unless I can persuade your Honour to actually strike this matter out, then there is nothing further I think I can assist with.

HIS HONOUR:   Yes, thank you very much, Ms Henderson. 

You have heard what Ms Henderson has just said, Mr Horak.  Is there anything you want to say in reply?

MR HORAK:   No, your Honour. I believe that pursuant to section 44(1), if you are mindful to remit the matter to the Federal Court Registry in Melbourne, then that should be the place to adjudicate.

HIS HONOUR:   Yes, that is it.

In this matter I direct, pursuant to section 44(1) of the Judiciary Act 1903, that this matter be remitted to the Melbourne Registry of the Federal Court of Australia. The costs - is there anything you want to say about costs, either party?

MS HENDERSON:   Your Honour, I submit the Minister should not be put to the task of paying for the costs of this remarkable pleadings and affidavits which have been put before ‑ ‑ ‑

HIS HONOUR:   That is a matter that can be dealt with in the Federal Court.  There may well be a strike-out application down there.

MR HORAK::   Perhaps they could be reserved, your Honour.

HIS HONOUR:   I do not want to reserve them here.  I think I will leave them for the Federal Court. 

I will add to the order that the question of the costs in this Court be dealt with by the Federal Court.

There being nothing further, adjourn the Court.

AT 10.40 AM THE MATTER WAS CONCLUDED