Tang v MIMIA

[2003] HCATrans 590

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B91 of 2002

B e t w e e n -

YUNCHANG TANG

Plaintiff

and

MINISTER FOR IMMIGRATON AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Defendant

Strike out application

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 20 FEBRUARY 2003, AT 11.05 AM

Copyright in the High Court of Australia

MR Y. TANG appeared in person.

MR P.G. BICKFORD:   Your Honour, I appear for the respondent.  (instructed by Blake Dawson Waldron)

HIS HONOUR:   Well, whose application ‑ ‑ ‑

MR BICKFORD:   Well, I actually appear for the applicant/defendant, I should say, your Honour, but there are applications and cross‑applications before your Honour.

HIS HONOUR:   But are yours first in point of time?

MR BICKFORD:   Yes, your Honour, my application to strike out – to permanently stay and strike out the pleadings is first in time.

HIS HONOUR:   And I think Mr Tang has then made an application to have your application dismissed, is that right?

MR BICKFORD:   That is right.

HIS HONOUR:   It is the same issue really.

MR BICKFORD:   Yes, and there was a notice requiring discovery and we made an application that consideration of that should be deferred until our application is dealt with.

HIS HONOUR:   Yes.

MR TANG:   Excuse me, your Honour.

HIS HONOUR:   Yes, Mr Tang.

MR TANG:   I have an interpreter here.  My English is not really good.  Would you mind to have her ‑ ‑ ‑

HIS HONOUR:   All right.  Well, I think we should swear the interpreter then, please.

MR TANG:   Thank you.

DEBORAH CAO, affirmed as interpreter:

HIS HONOUR:   Well, I think I will hear you first, Mr Tang, or perhaps – it is your application, Mr Bickford, is it not?

MR BICKFORD:   Yes, your Honour.  Mine was first in time, yes.

HIS HONOUR:   Yes, all right.  Ms Cao, I am going to hear Mr Bickford first because he has made the first application.  So if Mr Tang just sits and listens, he will be given an opportunity then to make submissions.

MR TANG:   I understand.

MR BICKFORD:   Your Honour, I will hand up a list of material which we are relying upon and I will also hand up a copy of the authorities referred to in our outline which has been filed. 

HIS HONOUR:   Ms Cao, you may translate anything I say to Mr Bickford, please.  Mr Bickford, what is Mr Tang’s status in the country at the moment?  Does he hold a visa or is there a deportation order?

MR BICKFORD:   He was granted a protection visa in 1997, your Honour.  I am not sure whether he has ever subsequently applied for citizenship, but he certainly has a protection visa.

HIS HONOUR:   It is a current protection visa?

MR BICKFORD:   Yes, your Honour.  I am instructed by my solicitor that he is now an Australian citizen, your Honour.

HIS HONOUR:   He is now an Australian citizen?

MR BICKFORD:   Yes.

HIS HONOUR:   So there is no current migration issue.  He may live in the country.  There is no suggestion he should be deported or anything?

MR BICKFORD:   No, none at all, your Honour.

HIS HONOUR:   Right.  Well, what is his loss?

MR BICKFORD:   Well, this is the difficulty we have, your Honour.  That is one of the difficulties, causation and damage, assuming that the cause of action could be found.  I think Mr Tang says that he lost opportunities ‑ ‑ ‑

HIS HONOUR:   Just wait a moment.  Do you want to say something, Ms Cao?

MR TANG:   Thank you.  I need translate.

HIS HONOUR:   I would ask you to speak slowly.

MR BICKFORD:   Yes.

MR TANG:   And also give time to Ms Cao.

HIS HONOUR:   I have just asked Mr Bickford to do that, yes.

MR BICKFORD:   Yes.

HIS HONOUR:   Have you been able to translate what has just been said?

THE INTERPRETER:   Not the last bit.

HIS HONOUR:   Well, you do that and tell me when you are ready.

THE INTERPRETER:   Could you please repeat the last thing you said?

MR BICKFORD:   We say that even if a cause of action could be identified, that there is no material to show that Mr Tang suffered any damages or that any breach of an obligation on the defendant’s part caused those damages.

HIS HONOUR:   Well, what he seems to be claiming is that there was some falsification of records by migration officers – you go ahead and translate this – and that in some way those officers abused their public office.

MR BICKFORD:   Yes.

HIS HONOUR:   Now, are you able to identify any claim for loss arising from those, assuming for the moment that they occurred?

MR BICKFORD:   Your Honour, it is difficult to work it out, but it seemed to me that Mr Tang was alleging that he lost opportunities in China because he could not go back, but exactly what they were is not clear.

HIS HONOUR:   Mr Bickford, would you look at the statement of claim, please?

MR BICKFORD:   Yes, your Honour.

HIS HONOUR:   Page 2, the first dot point and QDIMIA is an abbreviation, I take it, for Immigration Department or officers.

MR BICKFORD:   Yes, your Honour.

HIS HONOUR:   Sit down, Mr Tang –

QDIMIA had been holding my passport for an extremely unreasonable length of time since 1/10/92 –

which – I think it should be “which” –

I lodged along with my passport an application for a visa extension.

Assuming for present purposes that that is true, he wanted to stay in the country obviously in 1992.

MR BICKFORD:   Yes, your Honour.

HIS HONOUR:   What is the usual length of a protection visa, three years, five years?

MR BICKFORD:   They are permanent, your Honour.

HIS HONOUR:   Permanent.  So he made an application, in effect, to live permanently in Australia – if this is correct – in October 1992.

MR BICKFORD:   Your Honour, I think in October 1992 he was asking for an extension of a different type of visa.  I am trying to find out what it was, your Honour, but it was not a protection visa at that stage.

HIS HONOUR:   I would just be interested in the ordinary duration of such a visa.

MR BICKFORD:   It was a class 419 visa it was then described as and it was a visitor’s visa – visiting academic.  He was here from Wuhan University as a visiting ‑ ‑ ‑

HIS HONOUR:   How long does that last normally?

MR BICKFORD:   We do not know at the moment, your Honour.  We have not been able to find all the files unfortunately so we are at a bit of a disadvantage at the moment.  We do know from the latest affidavit of Mr Cramer that Mr Tang did apply for a protection visa, the affidavit of Mr Cramer filed today.  At the top of page 3 he made an:

application for a Protection Visa made on or about 23 May 1995 which was granted on 18 April 1997.

Exhibited to that affidavit is a bundle of documents which includes the decision on the application for a protection visa and the advice in relation to the results to Mr Tang and also the application form.

Mr Tang did apply on two bases.  One was that he had a religion on 25 April 1994 and that he would be persecuted if he practised that religion in China.  The other basis he applied was that he could be sentenced to death because he failed to return to China according to the arrangement he had with the Chinese Government, and that was the arrangement back in, I think, 1993, your Honour.  The visa was granted on the first basis, that he had a genuine fear of religious persecution if he returned to China.  No findings were made by the delegate on the other allegation.  He has been in Australia since then and subsequently taken out citizenship.

If some sort of cause of action could be identified, your Honour, it would be well outside the statutory time limits for commencing any such action.  Of course, in Queensland, at least, the Limitation of Actions Act, as your Honour knows, is only a defence which the defendant may or may not plead, but at the moment we cannot even find our file going back to what happened in 1993, so we probably have some prejudice at this stage of the game unless the file turns up and the officers who said things or did things back in 1993 I do not think have been identified by Mr Tang and they may or may not be able to be located after all these years.

HIS HONOUR:   I suppose once a protection visa, which you tell me is permanent ‑ ‑ ‑

MR BICKFORD:   Yes.

HIS HONOUR:   ‑ ‑ ‑ is granted and, in particular, once a person becomes a citizen, the retention of the file assumes a great deal less importance.

MR BICKFORD:   Yes.  There is an archiving policy, your Honour.

HIS HONOUR:   Exactly, and the file would ordinarily be closed and perhaps archived and, I do not know, even destroyed after a certain time.

MR BICKFORD:   After time, yes, your Honour.  I think that is right.  I do not know, there might be a permanent microfiche record kept of some key documents or something, but otherwise I think they destroy the physical file.  Your Honour, the other issue, I suppose, is that if the Minister is going to be – well, the actions against the Minister, well, he cannot be vicariously liable for anything that these public servants did.  He did not employ them.

HIS HONOUR:   Why not?

MR BICKFORD:   Well, they are employed by the Commonwealth of Australia, your Honour.

HIS HONOUR:   That might be something that could be cured by an amendment ‑ ‑ ‑

MR BICKFORD:   Yes, I appreciate that.

HIS HONOUR:   ‑ ‑ ‑ substituting the Commonwealth or ‑ ‑ ‑

MR BICKFORD:   Yes, and we have made some submissions about vicarious liability.  As your Honour knows, there is a very recent decision of this Court – and I have copies I can hand up – of the New South Wales v Lepore and Others.  I will hand up a copy of that, your Honour.

HIS HONOUR:   No, it is all right.

MR BICKFORD:   Your Honour does not need it.  I do not know the position is entirely settled in terms of vicarious liability for intentional criminal acts but these sorts of acts, deliberate frauds, for no apparent reason is what is alleged ‑ ‑ ‑

HIS HONOUR:   There is a majority, is there not, in both of those cases for the view that there is not vicarious liability for criminal activity?

MR BICKFORD:   Certainly that was your Honour’s view.

HIS HONOUR:   It was mine.  Did I have no supporters at all?

MR BICKFORD:   Your Honour, yes, but I think your Honour took a more robust view of that issue and other Judges thought that ‑ ‑ ‑

HIS HONOUR:   I would like to think a plainer view, Mr Bickford.

MR BICKFORD:   Yes, quite right, your Honour.  Certainly a clearer view.  I think some of the other judgments left open the possibility that there could be liability in certain circumstances and the tests that should be applied seem to differ somewhat from judgment to judgment. 

Justice McHugh did not decide it at all because he thought non‑delegable duty ‑ ‑ ‑

HIS HONOUR:   He dissented actually.

MR BICKFORD:   Yes.  I do not think there could be any suggestion of non‑delegable duty here, in the circumstances of this case, but it is a peculiar approach to this kind of issue to allege that it was all done deliberately and fraudulently rather than negligently one would have thought, but that is the approach that the plaintiff takes.

HIS HONOUR:   All right.  Let me just hear from Mr Tang for a moment, Mr Bickford.

MR BICKFORD:   Yes, thank you, your Honour.

HIS HONOUR:   Mr Tang.

MR TANG:   Your Honour, thank you.

HIS HONOUR:   I will speak slowly.  If you do not understand, ask the interpreter.  I will stop.

MR TANG:   Thank you.

HIS HONOUR:   But we will see how we get on for the time being with me speaking directly to you.  Do you understand?

MR TANG:   Yes.  My English is middle – is basically okay, I think, but ‑ ‑ ‑

HIS HONOUR:   Yes, but if you need any assistance from the interpreter, you ask.

MR TANG:   Yes, thank you.

HIS HONOUR:   Mr Tang, under our system of law in order to sue somebody you have to define your cause of action, that is the basis upon which you sue.  You also have to be able to show, in order to sue, that what has been done to you has caused you loss.  Now, there are problems about the definition of your cause of action, your right to sue, but put those problems aside for the moment.  How do you say you have suffered any loss?

MR TANG:   First, all indicate in my statement of claim.  I supposed to be back to China after the visiting period in Queensland University and at the time the government already – the Chinese Government arrange everything for me.

HIS HONOUR:   I did not hear that last bit.

MR TANG:   The Chinese Government – at the time I finished my visit in the Queensland University ‑ ‑ ‑

HIS HONOUR:   How long did you come to Queensland for, initially?

MR TANG:   Pardon?

HIS HONOUR:   How long did you think you were coming to Queensland for?

MR TANG:   How long?

HIS HONOUR:   One year?

MR TANG:   Yes.  Initially period is one year, but subject to be extended.

HIS HONOUR:   Yes.

MR TANG:   So after the initial period finished the professor…..the head of the microbiology department, would be happy to extend my visit because I did a good job there and ‑ ‑ ‑

HIS HONOUR:   What were you actually doing at Queensland University?

MR TANG:   Is the molecular research about the ‑ ‑ ‑

HIS HONOUR:   Molecular research?

MR TANG:   Yes, about the plant protection, they used molecular probes, DNA probes to identify disease and also developed some molecular ‑ ‑ ‑

HIS HONOUR:   With respect to plants, is it?

MR TANG:   Yes, plants.

HIS HONOUR:   Yes.  Did you apply for an extension of another year at ‑ ‑ ‑

MR TANG:   Yes, another – initially another six months, but later because the…..problem this changed to three month only, three month only from ‑ ‑ ‑

HIS HONOUR:   Mr Tang, what are you doing now?

MR TANG:   Now?

HIS HONOUR:   Yes.

MR TANG:   Now that is what I indicate regarding to the damage.  I lost my career.  Now I just…..unemployment ‑ ‑ ‑

HIS HONOUR:   How long have you been unemployed?

MR TANG:   For seven years.

HIS HONOUR:   Do you receive social security?

MR TANG:   Yes, because I am – since I become permanent resident.

HIS HONOUR:   And what would you have been paid in China if you had gone back to China?

MR TANG:   That is unpredictable because China is the…..country that has developed so quick.  If I go back to China – because I come here as…..government specially chosen expert in that area and my reason – see my purpose of visiting is to learn the latest technology and knowledge about molecular ecology.  That is a totally new branch in molecular biology.  So I just sent here for that purpose and after I return to China I supposed to be head – the first laboratory of molecular ecology…..university and also in China.

HIS HONOUR:   But, Mr Tang, you applied for a protection visa for fear of persecution on religious grounds.  So you told the department that you would be persecuted, or you feared you would be persecuted, if you went back to China and that you wanted to stay in Australia under a protection visa.

MR TANG:   Yes, that is the very unusual situation, your Honour.  I was put in a situation that have no other option except to apply for protection visa because the defendant put me in that situation.  That is what I suing the defendant now because they commit very serious crimes against me, so prevent me from back to China at the time I should be and also make fraud and undermine message to the Chinese Embassy to put me in a situation that

in the Chinese authorities’ eyes I am not worth their protection.  So they refuse to assure my safety back to China only after the defendant ‑ ‑ ‑

HIS HONOUR:   But what do you say the defendant did that was wrong?

MR TANG:   What?  All right.  I think the first is – I think everything is in my statement of claim but I will repeat it now.

HIS HONOUR:   Well, let us look at your statement of claim .

MR TANG:   Yes.  So, if you would not mind, I can read it.

HIS HONOUR:   No, do not read it.  I can read it.

MR TANG:   Yes, I do not think – already I think your Honour already read it.

HIS HONOUR:   Yes, I have, but I am looking at it again now.  I just want to ask Mr Bickford a question, Mr Tang.  You can sit down for the moment.

MR TANG:   Thank you.

HIS HONOUR:   Mr Bickford, the nub of it seems to be an assertion that he wanted to go back home and he could not get his passport because it had been lodged, as one would understand, with an application that he had made for his student’s visa or for the extension of his academic visa at some time.

MR BICKFORD:   Yes, your Honour.

HIS HONOUR:   It seems to be right, does it not?  It seems to be what he is saying.

MR BICKFORD:   That is right, your Honour.  That seems to be what is being said.

HIS HONOUR:   And he is saying because he could not get that back he could not return to China and not having returned to China when he should have according to his arrangements with the Chinese authorities, he could not go back at all because he would be in jeopardy.

MR BICKFORD:   That seems to be what he is alleging, your Honour, yes.

HIS HONOUR:   It seems to be the allegation, does it not?

MR BICKFORD:   Yes.

HIS HONOUR:   And I suppose he would say it is immaterial that his claim for a protection visa was granted for, in effect, religious reasons.  He had another reason which was equally compelling but which the Tribunal or the delegate did not find it necessary to deal with.

MR BICKFORD:   Yes, the delegate did not make any findings of it.

HIS HONOUR:   Which was his fear of persecution, I suppose he would say for a political reason, that is a failure to be able to comply with the arrangements for his return.

MR BICKFORD:   Yes, it would be doubtful whether that would qualify though, your Honour.

HIS HONOUR:   Why not?

MR BICKFORD:   Well, he was not a member of – his political beliefs were not the reason why he could not go back.  He failed to comply with – he says he failed to comply with an arrangement and that he would be punished if he went back because he had failed to comply.  So that it is difficult to see how he fits in a particular social group or that his political beliefs had anything to do with that.  That was just a bureaucratic process, that presumably if you do not comply with arrangements you suffer a penalty.  So, I mean, I agree the delegate has not expressly dealt with that but, your Honour, I think the reason for that is because it would not have qualified.  The religious belief qualified and that is the basis upon which ‑ ‑ ‑

HIS HONOUR:   Yes, but what is the wording of the Convention article again?  Just remind of that.

MR BICKFORD:   Your Honour, I think it is probably referred to in the delegate’s decision.  They usually set it out.  Yes, your Honour, at page 3 of the attachment ‑ ‑ ‑

HIS HONOUR:   Just read it to me, if you would not mind.

MR BICKFORD:   It reads:

“owing to well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being

outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.”

So it has to be a:

well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion –

not for failing to comply with some obligation or other ‑ ‑ ‑

HIS HONOUR:   What about being a member of a group – social group, if you like, of students unable to return to their country according to the arrangements that have been made with the country.

MR BICKFORD:   Yes, your Honour, it may not ‑ ‑ ‑

HIS HONOUR:   I have to say to you, Mr Bickford, it sometimes surprises me what assertions are made and sometimes accepted ‑ ‑ ‑

MR BICKFORD:   Yes, I appreciate that.

HIS HONOUR:   ‑ ‑ ‑ by the Tribunal even as to the definition of social groups.

MR BICKFORD:   Yes.  It is probably not impossible that that case ‑ ‑ ‑

HIS HONOUR:   I do not know.  You may be able to find a formulation.

MR BICKFORD:   Yes.

HIS HONOUR:   You wanted to say something, Mr Tang?

MR TANG:   Yes.  First of all, I do not think the defendant raised the issue of the protection visa and my current Australian citizenship is relevant to the case currently before your Honour.

HIS HONOUR:   Well, it may be relevant to this aspect of the case, Mr Tang.  It may be relevant to the question whether you can show any damages, that you have suffered damage.

MR TANG:   I see.  I understand that.

HIS HONOUR:   It may not be relevant to the definition of your right of action, but it may be relevant to the question whether you have suffered damages.

MR TANG:   Yes, and that is the only thing relevant, I agree, your Honour.

HIS HONOUR:   Mr Tang, why could you not have gone back to China and explained to the authorities what happened to you?  You say you could not get your passport back in time, but could you not have explained that it was not your fault when you got back to China?

MR TANG:   No, I cannot and also, before came into the Court today, I thought the issue is about the three summons about the – how to say – about the course the proceeding will go, but if your Honour ask now, I would be happy to answer it.  I think at the time is 1993, is short – is February 1993 is shortly after the Tiananmen Square…..We call it now massacre.

HIS HONOUR:   No, was it not in 1989 or 1990?

MR TANG:   Yes, 1989.

HIS HONOUR:   In 1989.  It is a fair while after that.

MR TANG:   Yes, but during my visit I visit Australia immediately after that.  I came here in 1991.  I was chosen actually immediately after that time.  At that time a lot of Chinese students and the visiting scholars in Australia is about 20,000, something like – some about that.

HIS HONOUR:   Yes, I know.

MR TANG:   Almost all of them do not want go back to China.

HIS HONOUR:   I know.  The Prime Minister, I think, made some announcement about those students.

MR TANG:   Yes.  All received permanent residence, yes.  At that time but I am government sponsored scholarship so ‑ ‑ ‑

HIS HONOUR:   But, Mr Tang, why could you not go to the Chinese Embassy in Australia now and explain what has happened to find out whether you would be let back?

MR TANG:   Because, first of all, I cannot back because the defendant withholding my passport and preventing me from leaving.  So in the Chinese authority, as the usual policy, if government sponsors fail to return to country according to the arrangement of the Chinese authority, so they will be regarded as have intention to – how to say that English – to ‑ ‑ ‑

THE INTERPRETER:   To escape to the West.

MR TANG:   Yes.

HIS HONOUR:   Sorry?

THE INTERPRETER:   To escape the Chinese Government or regard those people not returning to China as finding a way to escape to the West.

HIS HONOUR:   Yes.  I can understand that, but why did you not, Mr Tang, back in early 1993 or at the end of 1992 go to the Chinese Embassy in Australia and explain the position, that you wanted to come back to China but that, according to you, the Australian authorities were holding your passport, you could not get it back, and could you not then have asked the Chinese authorities to give you a temporary travel document or a new passport to go back to China and then you would not have been in default in any way of your arrangements?

MR TANG:   I did ‑ ‑ ‑

HIS HONOUR:   You did that?

MR TANG:   Yes, I did that but I did not take things with me today.  I did that.  So is that ‑ ‑ ‑

HIS HONOUR:   What was the reaction of the Chinese authorities to that?

MR TANG:   You must – the Chinese authorities said, “You must clear the things yourself.”

HIS HONOUR:   You must?

MR TANG:   I must clear things, settle the things myself with the department and come back to China with a clear record.

HIS HONOUR:   But your record would have been clear.  You had not done anything.  All that had happened was that you had sought an extension.

MR TANG:   Yes.  This is very unusual, it seems to me.  First of all, I applied my extension of visa on 1 October 1992 – yes, 1 October – from 1 October to – the time the decision made is 5 March.  That means five months, I think.

HIS HONOUR:   Yes.

MR TANG:   More than four month but this ‑ ‑ ‑

HIS HONOUR:   But the department has to process thousands of applications.  Four months does not seem too long to me, or very long to me.

MR TANG:   Yes, but for three month extension.  Visa is for three‑month extension and also I was told at the beginning when the officer received my application, she told me, “The decision will be made in four weeks” – will be.  So it is amazingly unreasonable length of time.

HIS HONOUR:   Well, after five weeks why did you not go to the Chinese Embassy and explain what was happening?

MR TANG:   Pardon?

HIS HONOUR:   Well, after five weeks when you had not had your application processed you could then have gone to the Chinese Embassy to explain what had happened.

MR TANG:   I do not need to explain.  At that time I still being very busy, first of all, in the university because I expect the three months extension is no problem at all.  So I am under the supervision of Professor…..I work and, yes, there is no reason for me to extend at that time to the Chinese authority because I still waiting for the decision.  The only thing I should do is urge department to make decision and I did it three times – more than three times went to the department and ask, “When you will make decision on my extension?”  And also I said, “I need my passport to a lot of things:  health insurance, bank, a lot of things I need that.”  But they just do not do it.

They said, “We will soon make decision – we will soon.”  I think at least three times.  Today I did not real well prepare for that but to my memory they said that but they never do it.  Especially please pay attention, your Honour, that when I told the department I will fly from Sydney to China on 27 February, they purchased a ticket already – I have purchased it – already purchased the ticket and I must have my passport back so that I can fly back to China.  That is on 18 February and I approached the counter, but when I asked for my passport back there is two men in the counter.  Both said, “No, you have to produce your original ticket, so that we” – the only, how to say – “We can only return you your passport when you produce your original ticket.”

At that moment I immediately ring to Chinese Consulate in Sydney.  I went downstairs to the public phone, ring the consulate, said that the department want the ticket to be here.  Immediately – sorry, immediately in that situation I ask the counter’s fax number from some other officers and asked them to send fax because the ticket is in Sydney, not in my hand.  I had to fly from Sydney.  So they faxed the ticket to the counter.  After confirm it in the form, I said, “Are you sure?”  The officer in the Chinese Consulate, “Yes, it is okay because the fax machine answered okay.”  Then back to the counter, ask these two men, including, I think – I believe it is including David Browne, Mr David Browne, but at that moment I cannot remember the face of the people, but I ask the two person, I said, “My ticket already faxed to your account…..”  What they said is that, “We told you, you must show the original ticket”, and then just ignore me.  They ignore the facts and they ignore me and nothing been attended.  So I have to go.

That is the way things happened and that is just on 18 February, but later I find is totally forgery record on my file.  I find it through the Freedom of Information.  So here is the evidence.  Would you mind – yes, sorry.

HIS HONOUR:   Do you have a copy of this, Mr Bickford?

MR BICKFORD:   I do not, no, your Honour.

HIS HONOUR:   Usually you have to put in an affidavit, Mr Tang, but show it to Mr Bickford first.

MR TANG:   Can I do it now?  Yes, I can do it now.

HIS HONOUR:   Do you mind if I look at that?

MR TANG:   Would you mind – I have another copy.

HIS HONOUR:   Just wait a moment, I just cannot receive a document and look at a document like that, Mr Tang.

MR TANG:   Sorry, I am a layman, excuse me.

HIS HONOUR:   I have to be fair to both sides.

MR TANG:   I do not need have a look.

HIS HONOUR:   What does it purport to be, Mr Bickford?

MR BICKFORD:   Your Honour, it is headed up “CRIMINAL EVIDENCES 1 Record No. 11 with records No. 9, 10, 12, 13 Falsification of Documents”.

HIS HONOUR:   It is not your document?

MR BICKFORD:   No – well, the first part is and it seems to be some arguments by Mr Tang as to why documents are false and then there is attached to that some photocopies of some documents.

MR TANG:   Yes, including the fourth one.

HIS HONOUR:   Well, I have a look at that as an outline of submission.  Do you mind if I look at it and treat it in that way?

MR BICKFORD:   I do not object to you looking at it, your Honour.  I have not seen it before, but I do not object to it.

HIS HONOUR:   Do you have a copy for Mr Bickford?

MR TANG:   I will make it.  Yes, maybe I have one.

HIS HONOUR:   You should give him one.

MR TANG:   Yes, I have one.

HIS HONOUR:   Thank you.  He has given you a copy of his outline.  Mr Tang, you have here “Education office of Chinese Consul”.  What does that mean?

MR TANG:   That is the authority in charge of all the visiting academics in Australia.  They purchase the ticket for me.

HIS HONOUR:   They bought the ticket for you, I see.  Mr Bickford, I am minded to refer this action to the Federal Court.  That is one of your alternative applications, is it not?

MR BICKFORD:   Yes, your Honour, or certainly should not be dealt with in this Court, your Honour, if it is going to proceed in any way.

HIS HONOUR:   Mr Tang, what I propose to do is not deal with these matters ‑ ‑ ‑

MR TANG:   Yes, I agree.

HIS HONOUR:   That is good.  You almost make an order by consent.  I am going to send the matter to the Federal Court to be dealt with.  You have no objection to that?

MR TANG:   I object.

HIS HONOUR:   You do object?

MR TANG:   Yes.

HIS HONOUR:   Why do you object to my doing that?

MR TANG:   Thank you very much.  I now have the formal chance to present my point of view.

HIS HONOUR:   But not to me here.  All I am asking you to do now is tell me why I should not send this case to the Federal Court.

MR TANG:   Yes, that is what I am going to say.

HIS HONOUR:   All right.  Why should the High Court deal with this case rather than the Federal Court?

MR TANG:   Yes, that is what I am going to say.

HIS HONOUR:   All right.  You tell me why.

MR TANG:   Yes.

MR TANG (through interpreter):   First of all, this case does not have any precedent.  This concerns the criminal act of a federal department.  It is a very important department of the government.  When the act – when the criminal act was committed, an act was committed in relation to a foreigner and a foreign embassy and this criminal act has seriously damaged the international image of Australia because it was committed by the Federal Government.  Australia is a democratic country.  It also damaged the image of Australia and the Australian people as a friendly country, as a friendly people who uphold justice and who love democracy.

For a case like this it is necessary for the highest Court in this country to deal with such a case in order to show the determination and the will of the Australian society to safeguard democracy and the rule of law.  This is the first point.

Secondly, this case concerns a criminal act committed by the government as a legal person.  It is a government corporate crime.  It has impact on a series of matters that has universal application, universal significance for the common law because there are very few or no precedents, therefore it is necessary for the High Court to deal with this case so as to provide the authority in case law, so as to provide guidance for similar cases that might rise in the future.

For instance, if a government organisation is deemed to have committed criminal acts, if government department has committed criminal act, who will go to gaol and who will be liable to pay damages for the criminal act?  When the government department acts contrary to the judicial power of the Commonwealth, who should be punished in such a case?  What kind of penalties this will give rise to?

Thirdly, when a government department has been found guilty and have been penalised, then what are the legal obligations – any follow‑up legal obligations for the government department?  For instance, to formulate any measures to prevent any future similar criminal acts and how to identify and penalise those people who are directly responsible and also how to get the taxpayers money back.

MR TANG:   Yes, because, first, the department have to pay damage if – and then I do not think the taxpayer will pay the damage.  It should be the criminals.

MR TANG (through interpreter):   And, lastly, the third major point, before the case was accepted by the High Court I have made complaint – I have complained to many departments, including AFP, Ombudsman.  Needless to say that also includes the Department of Immigration.

MR TANG:   Yes, I have complained very politely and patiently, many, many times…..was denied of justice.

MR TANG (through interpreter):   If this case is transferred to a lower court, it may be influenced by anti‑immigrants’ views.

HIS HONOUR:   I am sorry, I did not hear that.

MR TANG:   I am sorry.  How say that?

HIS HONOUR:   May be influenced by?

MR TANG (through interpreter):   Anti‑migrants.

MR TANG:   No, I did not mean that, sorry.

HIS HONOUR:   Anti‑migration sentiments?

THE INTERPRETER:   But he said he does not ‑ ‑ ‑

MR TANG:   No, did not mean that.  Mean under some influence of the discrimination – yes, discrimination against the migrant.

HIS HONOUR:   All right.

MR TANG (through interpreter):   And, lastly, the defendant’s criminal acts are evident without doubt.

MR TANG:   I think I can convince any honest person in the matter of one hour – in the matter less than one hour.

MR TANG (through interpreter):   The defendant is trying to pervert the course of justice. 

MR TANG:   The evidence is very clear and, first of all, the defendant first summons dated 10 December ask to stay my proceeding, a writ of summons and strike out my claim, but in these documents I very clearly – sorry, your Honour, I still need interpreter.

MR TANG (through interpreter):   I very clearly stated the facts relating to this criminal act and the losses suffered by the plaintiff and I also clearly pointed out all the files and records under the control of the defendant with regard to the plaintiff as evidence for the criminal act by the defendant.

MR TANG:   Yes, are irrefutable and self‑evident of the crime the defendant committed.

MR TANG (through interpreter):   But the defendant did not mention any of these evidence and refused even to show the evidence to their own lawyers ‑ ‑ ‑

MR TANG:   Until the last day of February – or last day of January, sorry.

MR TANG (through interpreter):   Under such a circumstance, when they say that I have no basis, no ground for the law suit and ask the honourable Court to strike it out, the act of the defendant is very arbitrary and it is also a contempt of the Court.  They are also very irresponsible to their own lawyers.

MR TANG:   Because not provide any basic information about the case.

MR TANG (through interpreter):   So the honourable Court should refute their requests – dismiss their requests.  I also want to add the lawyers of the defendant have been deceiving the Court.  The defendant lawyers in the affidavit dated 4 December 2002 have said that ‑ ‑ ‑

MR TANG:   That man is Mr Ben Cramer, this lawyer.

HIS HONOUR:   Mr Tang, I am not going to let you insult people and accuse people on the other side of impropriety without the strongest evidence of it.  Now, make your submission but do not make allegations which cannot be sustained of misconduct on the part of the lawyers representing the defendant.  I will not permit it.

MR TANG:   .....more care of the words I use.  In the first affidavit they said:

I am not yet in possession of the Defendant’s file which contains the documents referred to in the Statement of Claim.  I expect to receive the file shortly and will then file an affidavit producing the relevant documents.

What Mr Ben Cramer did afterwards, he did not keep his ‑ ‑ ‑

HIS HONOUR:   Well, he says he cannot find them.  Mr Cramer does not control the Department of Immigration.  The department would have literally millions of files and these are old files and it may well take quite a lot of time to find them.

MR TANG:   Yes, I agree.

HIS HONOUR:   They might even be destroyed, Mr Tang.

MR TANG:   By law they have to keep – to my awareness, your Honour, they have to keep for 20 years.

HIS HONOUR:   Well, you are probably right but I am sure they will make their best endeavours to find it.

MR TANG:   And also I have official copies of those documents, official copies from the ‑ ‑ ‑

HIS HONOUR:   All right.  Well, you are really off the point now.  Is there anything more you want to say as to why this Court rather than the Federal Court should ‑ ‑ ‑

MR TANG:   Yes.  Basically what I said is ‑ ‑ ‑

HIS HONOUR:   Is there anything further you want to say about that?

MR TANG:   Yes.  This is third point, that they are intending to pervert justice.

HIS HONOUR:   Well, that is your allegation.

MR TANG:   Yes.

HIS HONOUR:   All right.  Anything else?

MR TANG:   And the final thing is that it is possible according to the things the department did before, the forgery record and to send false information to the Chinese Embassy, so is likely they can destroy evidence, forge more evidence or change it, alter it, or even ‑ ‑ ‑

MR TANG (through interpreter):   Conspire.

MR TANG:   Yes, conspire their statement before the Court because so many people is a conspiracy crime, not a single person in the department.  So they can organise to do that.  So that comes to my conclusion that maybe not appropriate to remit this case to the Federal Court.

HIS HONOUR:   Right, thank you, Mr Tang.  Mr Bickford, in view of my intimation which remains unchanged, do you want to address me on anything?

MR BICKFORD:   Your Honour, I suppose if you were going to remit it, it would depend on what court to, whether it should be the Supreme Court of Queensland or whether it should be the Federal Court.  The Federal Court would be the appropriate place, in my submission, provided ‑ ‑ ‑

HIS HONOUR:   I agree with that.

MR BICKFORD: ‑ ‑ ‑ that the requirements of section 44(2A) are met, that is:

Where a matter in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party is at any time

pending in the High Court, the High Court may, upon the application of a party or of the High Court’s own motion, remit the matter . . . to the Federal Court of Australia.

Now, the Minister is the party at the moment.  The proper party would be the Commonwealth, without a doubt, in my submission.  I mean, the Minister cannot be liable for any conduct on the part of the public servants employed by the Commonwealth.  So the Commonwealth ought to be the party, in which case that requirement would be clearly met.

HIS HONOUR:   You could probably apply for an amendment without any prejudice to your position, I would have thought, to have the Commonwealth substituted as a defendant.

MR BICKFORD:   Yes, your Honour.  In my submission, that would be appropriate, yes, and I am happy to make that application, although I should say the situation is slightly complicated because we are actually acting for the Minister.  I would think the Australian Government Solicitor would be acting for the Commonwealth.  Now, I cannot imagine they would have a different view about who should be the party.

HIS HONOUR:   Perhaps they should be heard.

MR BICKFORD:   Yes, perhaps.

HIS HONOUR:   Mr Bickford, in any event, it seems to me that it is at least arguable, or perhaps it may be arguable, that the Minister is being sued at present on behalf of the Commonwealth and that, therefore, the section 44 requirements may be met.

MR BICKFORD:   Yes, I think that is right, your Honour.  That seems to be the position.

HIS HONOUR:   Mr Bickford, you do not urge, in view of my intimation, that I go ahead today and deal in detail with the issues and dismiss the application?  What I would have in mind is that those applications of yours be referred to the Federal Court.

MR BICKFORD:   Yes, and renewed before a judge of that court.  It is probably a more appropriate way to dispose of the matter, your Honour, yes, rather than waste your time any further with the matter.

HIS HONOUR:   Yes, thank you, Mr Bickford.

I have before me three applications. One of them is an application by the defendant seeking the stay of the plaintiff’s action on the grounds that the writ does not disclose a reasonable or probable cause of action and that, in any event, the proceedings are vexatious and oppressive, or otherwise an abuse of the process of the Court. The defendant seeks relief in the alternative that the statement of claim be struck out, or that I make an order pursuant to section 44 of the Judiciary Act 1903 (Cth) remitting the matter to the Federal Court for hearing on the basis that, although the matter is not entirely clear, the plaintiff appears to be seeking to sue the defendant on behalf of, or as an officer of, the Commonwealth.

The plaintiff also has filed applications, purportedly pursuant to Order 31 rule 2 of the Rules, seeking relief in various forms, including the dismissal of the defendant’s application to which I have already referred, orders as to the further conduct of the action, and that it be set down for trial immediately.  The third application relates to discovery and inspection of documents.

I intimated to the parties that I had a disposition, having read the submissions and the materials, to remit the matter to the Federal Court for further disposition and asked the plaintiff to make submissions as to why I should not do that if he were opposed to it.  He said that he was and he made a number of submissions which are substantially these.  He contended that the case should be heard by the High Court because it had no precedent.  He sought to emphasise that criminality was involved, that is to say criminality on the part of officials, and that that criminality was perpetrated against a non‑citizen and a foreign embassy.  He sought to argue that what had occurred was damaging to the international reputation of the nation as a democratic and free country.

He said it was important that the High Court hear the matter in order to safeguard the rule of law.  This was, it was his submission, a case of universal significance for the common law and would provide an important authority for future cases, of which, he implied, there were or might be many of a similar kind.  He sought to argue that what had occurred was an affront to judicial power, that officials of the government were involved, and that they deserved punishment.  The prosecution of the case and its determination in the High Court would have a salutary deterrent effect upon other officials who should be obliged to pay such damages as might be assessed personally rather than the taxpayers.

He also sought to articulate a submission that a lower court – presumably he was referring to the Federal Court – might be influenced by anti‑immigration sentiments.  Finally, he argued that the conduct of a criminal kind was obvious and that he was being obstructed in his prosecution of the case by the lawyers for the defendant.

I reject all of these submissions.  Mr Tang misconceives the difference between criminal and civil proceedings in this country.  There is no reason why the Federal Court could not and, indeed, would not deal with this case in all respects appropriately.  If, which I doubt, there is anything at all in Mr Tang’s claim and case, and if conceivably the matter, as an appeal or otherwise, were ever to reach this Court, it would be greatly assisted by the decision and reasoning of the Federal Court.

It has been said many times in various ways that courts do not lightly strike out proceedings, that a very strict test is to be applied and if the possibility of an arguable case can be discerned a court asked to strike it out should be very careful and slow to do so.  I must say that of this case I entertain many serious doubts about its prospects.  These include the availability of any relevant cause of action, if it exists, its connection with any loss that Mr Tang might be able to demonstrate, whether, indeed, he has suffered any compensable loss or damage at all, and whether, in any event, even if, contrary to my tentative view, he could, his claim might, in any event, it would be defeated by a limitations defence which has not been yet taken but which might be available to the defendant, and perhaps justifiably so in view of difficulties associated with the location of relevant documents.

In all of the circumstances, therefore, I propose to remit all of the applications which are before me, save as to the application for remitter itself, of course, to the Federal Court to be determined according to law.

Mr Bickford, I do not know what directions I should give, if any.

MR BICKFORD:   I think your Honour is remitting the matter and the applications to the Federal Court and it is probably a matter for them to ‑ ‑ ‑

HIS HONOUR:   I think it is, because there is a docket system that I am not familiar with.  I would not want to make any orders that might obstruct or interfere in any way with the Federal Court’s usual process.

MR BICKFORD:   No.  I must say, your Honour, I have not had this situation myself, but I assume it would be allocated to a docket judge and that docket judge would allocate a directions hearing and then we would sort of go from there.  The only other matter for your Honour is the question of the costs of today, your Honour.

HIS HONOUR:   Yes.  What do you say about those, Mr Bickford?

MR BICKFORD:   Your Honour, I certainly was instructed to ask for an order for costs, that, of course, on the basis that the action was struck out.  However, the way the matter has proceeded, your Honour has not taken that course, but the matter has been remitted against the opposition of Mr Tang.  There is a basis, therefore, for me to ask for an order for costs and those would be my instructions, I would think – yes, your Honour, those are my instructions.  So, on that basis, I ask for an order for costs of today.

HIS HONOUR:   Yes.  Mr Tang, do you understand what I have done?  I have heard your submissions but I have decided to send the whole case to the Federal Court.  The Federal Court will deal with it from now on.  Now, Mr Bickford says that he has been partially successful in his application because I have made one of the orders that he asked for, even though I have not made the other orders.  He argues, therefore, that you should pay his costs, or the costs of the defendant.  What do you say about that?

MR TANG:   I think I have something I have to say today but I have not time to say it.  This morning the defendant served me one document and yesterday morning served one by mail – serve another.  So they did not give me much time to look at it but ‑ ‑ ‑

HIS HONOUR:   All right.  I do not think I need hear you anymore.  I think I will reserves the costs, Mr Bickford.

MR TANG:   Yes.

HIS HONOUR:   Just wait a moment, Mr Tang.  I think I will reserve the costs and they can be disposed of when you renew your application in the Federal Court to the other relief that you are seeking.

MR BICKFORD:   Yes, your Honour.  Reserve the costs to the Federal Court judge who determines the matter?

HIS HONOUR:   Yes.  I am not going to make any order against you, Mr Tang, not today.

MR TANG:   Yes, that is okay.  Yes, thank you.

HIS HONOUR:   There will be an order that all of the applications, save as to the application for remitter itself, be remitted to the Federal Court for disposition by that court.  I order that the costs of today be reserved for the decision of the Federal Court.

MR TANG:   Thank you very much.

HIS HONOUR:   There is nothing further then, I do not think.

MR BICKFORD:   Yes, your Honour.  The only other matter would be your order is that the application, save for the application for remitter, are remitted but the matter is remitted as well, your Honour.

HIS HONOUR:   Thank you.  And I order that the matter be remitted in its entirety to the Federal Court.

MR BICKFORD:   Yes, thank you, your Honour.

HIS HONOUR:   All right.  You understand what has happened, Mr Tang?  The matter will now go to the Federal Court to be dealt with.

MR TANG:   Yes, basically I understand and also specially thanks for the decision to reserve the cost.  I think you are right.

HIS HONOUR:   I am pleased to hear that.

MR TANG:   Sorry.

HIS HONOUR:   We do not always give that sort of satisfaction, Mr Tang.

MR TANG:   Thank you, but one more thing would your Honour allow me to say?

HIS HONOUR:   Yes, Mr Tang.

MR TANG:   Just this morning because – yesterday or this morning, very shortly, the defendant said the Minister have no – not liable for all the crimes committed in his department.

HIS HONOUR:   Look, Mr Tang, I do not want to deal with any of that.  It is all going to the Federal Court.

MR TANG:   All right, thanks.  Yes, I am happy now.

HIS HONOUR:   We have concluded what we need to do today.

MR TANG:   Thank you.

HIS HONOUR:   Yes, thank you.

AT 12.27 PM THE MATTER WAS CONCLUDED