Toprak, Ex parte - Re MIMA

[2001] HCATrans 3

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B69 of 1999

In the matter of -

An Application for Writs of Prohibition, Mandamus, Certiorari and Injunction against the MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte –

MUSTAFA TOPRAK

Applicant

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 15 JANUARY 2001, AT 12.20 PM

Copyright in the High Court of Australia

MR C.P. COSENTINO:   I appear for the applicant, your Honour.  (of South Brisbane Immigration & Community Legal Service Inc)

MR M.C. SWAN:   I appear for the respondent, your Honour.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Mr Cosentino, you want leave to withdraw, is that so, your firm?

MR COSENTINO:   Yes, your Honour.

HIS HONOUR:   All right.  Mr Swan, is there any problem about that?

MR SWAN:   We do not oppose the application to withdraw, no, your Honour.  We have our own separate application which I am going to ask your Honour to deal with today, if possible.

HIS HONOUR:   Yes, all right.  Well, your application is for a declaration that the Service, which I will refer to in short, has ceased to be the solicitor acting for the applicant and for an order that the Service be removed as the solicitor on the record for the applicant.  Is that right, Mr Cosentino?

MR COSENTINO:   Yes, your Honour.

HIS HONOUR:   Could I just ask you one question – there will be no difficulty about that order – but the South Brisbane Immigration & Community Legal Service Inc, is it, in fact, a corporation?

MR COSENTINO:   As I understand, it is, your Honour.  We have a management committee as such who ‑ ‑ ‑

HIS HONOUR:   I only ask out of curiosity, but how do you do that and comply with the Law Society rules relating to solicitors?  You may not know the answer to that.

MR COSENTINO:   No, I do not, your Honour, I must admit.

HIS HONOUR:   All right.  Well, I am prepared to make an order in terms of your application, Mr Cosentino, but just before I do, I think the material shows that you have attempted to communicate with Mr Toprak; is that right?

MR COSENTINO:   Yes, your Honour, and ‑ ‑ ‑

HIS HONOUR:   When was the last of those?

MR COSENTINO:   Your Honour, a letter was sent to Mr Toprak back in February 2000 asking him to notify us immediately and I think Ms Morag McDonald, the principal solicitor then, was before your Honour on that date, just prior ‑ ‑ ‑

HIS HONOUR:   I actually gave leave, did I not, or extend time?

MR COSENTINO:   Yes, your Honour, and we received no response from Mr Toprak.  Following that, your Honour, that 12 Bonython Street became the Refugee Accommodation Crisis Centre, for which our organisation auspices, and Mr Toprak has not been residing there since that date.  A letter was sent out to Brother Sanderson just recently, who was the co‑ordinator at that particular place prior to ‑ ‑ ‑

HIS HONOUR:   And he did not know either.

MR COSENTINO:   No, your Honour.

HIS HONOUR:   That letter was sent within the last two months, was it?

MR COSENTINO:   That is right.  In October last year, your Honour.

HIS HONOUR:   And you do not know where Mr Toprak is.  You do not know any other way of ascertaining his whereabouts; is that right?

MR COSENTINO:   Yes, your Honour.

HIS HONOUR:   And he has made no attempt to remain in touch with you as his solicitor?

MR COSENTINO:   No, your Honour.

HIS HONOUR:   Nor, indeed, with the Refuge Centre so far as you can ascertain?

MR COSENTINO:   No, your Honour.

HIS HONOUR:   All right.  Well, you accept those matters to be correct?

MR COSENTINO:   Yes, I do, your Honour.

HIS HONOUR:   It may be relevant to Mr Swan’s application you see.  All right.  Well, I make an order in terms of your application, Mr Cosentino, and you are excused.

MR COSENTINO:   Thank you, your Honour.

HIS HONOUR:   Mr Swan, you have an application.  Has that application been filed?

MR SWAN:   It was filed on Friday I am instructed, your Honour.

HIS HONOUR:   And was Mr Cosentino served with that?

MR SWAN:   A copy of the application as filed was delivered.

HIS HONOUR:   Have you a spare copy of that, Mr Swan?  I am not too sure that it has reached me.  Mr Swan, do you have any material in support of your application?

MR SWAN:   Your Honour, I wish to read in support of the application the affidavit of Robert John Lachowicz sworn and filed 8 November 1999 and the affidavit of Mr Cosentino sworn 24 November 2000, which were filed in support of Mr Cosentino’s application because they set out substantial elements of the background to this.  I have a list of the material, both evidentiary and in terms of authorities, on which I propose to rely.

HIS HONOUR:   Mr Swan, what happened?  Thank you.  Just – I am sorry.

MR SWAN:   There is one further affidavit, an affidavit of Murray Bruce Belcher, sworn today, 15 January, and I seek leave to file and read that.

HIS HONOUR:   Yes.  Have I a copy of that?  Yes, you have leave, Mr Swan.  Just let me have a quick look at that.

MR SWAN:   That was the original I handed up to your Honour.

HIS HONOUR:   All right.  So he has a bridging visa, Mr Swan, I see; is that right?

MR SWAN:   Yes.  We received those instructions very late on Friday, just to the effect that he had one, and the details that appear in Mr Belcher’s affidavit were ‑ ‑ ‑

HIS HONOUR:   Just remind me of what they are.  When does that run out?

MR SWAN:   That runs out, in the circumstances of this case, when the substance of this case is determined, that is, when this Court ‑ ‑ ‑

HIS HONOUR:   If I were to uphold your application today, that would be the end of the bridging visa.

MR SWAN:   That is correct, your Honour.  Yes, 28 days after your decision, if that were your decision.

HIS HONOUR:   I am just looking at Mr Lachowicz’s affidavit.  Has he applied for a protection visa or ‑ ‑ ‑

MR SWAN:   He did, yes, your Honour, and the history of that, as appears from Mr Lachowicz’s affidavit, is that ‑ ‑ ‑

HIS HONOUR:   That was refused.

MR SWAN:   ‑ ‑ ‑ it was refused.  He sought a review by the Refugee Review Tribunal.  The Tribunal made its decision in May 1999, in effect, confirming the Minister’s decision to refuse the visa.

HIS HONOUR:   And did he then go to the Federal Court?

MR SWAN:   No, your Honour.

HIS HONOUR:   He came straight here or tried to come straight here?

MR SWAN:   Well, he did nothing about the decision of the Refugee Review Tribunal, but apparently sought a decision from the Minister under section 417 of the Migration Act.  The decision that she desired the Minister should make was that notwithstanding the decision ‑ ‑ ‑

HIS HONOUR:   I am sorry, I say “he”.  It is a woman.

MR SWAN:   It is a male.

HIS HONOUR:   It is a male?

MR SWAN:   Yes.

HIS HONOUR:   All right.  Yes, it is a male.  I am sorry, what is the application under section 417 of the ‑ ‑ ‑

MR SWAN:   That is a request for the Minister to decide that notwithstanding the decision of the Refugee Review Tribunal that it is in the public interest that he be given a protection visa.

HIS HONOUR:   So that was rejected by the Minister, was it, that application?

MR SWAN:   Yes, that was the decision conveyed to him on 14 October 1999.

HIS HONOUR:   And what did he do then?

MR SWAN:   Then he came to this Court seeking a review.  Now, it must be presumed that what he was seeking was a review of the decision of the Minister under section 417, although part of our case is that the material, both the application to the Court and the affidavit in support of it, do not precisely identify the decision.  They simply refer ‑ ‑ ‑

HIS HONOUR:   Whether it is the Minister’s decision or he is trying – I suppose in theory, subject to discretionary considerations, he could apply under section 75 of the Constitution in respect of either the Tribunal’s decision or the Minister’s decision. Both are Commonwealth officials, as it were, within the meaning of section 75 of the Constitution.

MR SWAN:   That is correct, your Honour, yes.

HIS HONOUR:   So it could be either.  In any event, your argument is that it is a matter for him to proceed diligently and it is obvious that there is no incentive upon him to proceed diligently whilst he has a bridging visa and ‑ ‑ ‑

MR SWAN:   With respect, that is correct, your Honour, and we would submit that, in fact, what he has done constitutes an abuse of process, both an abuse of the processes under the Migration Act and an abuse of the process of this Court.  That is the effect of the circumstances, that he is out in the community when, in my client’s submission, he is not entitled to be, except for the fact that he has, by manipulating the circumstances, got this bridging visa.

HIS HONOUR:   How did he enter the country, Mr Swan, do you know?

MR SWAN:   According to the material annexed to Mr Lachowicz’s affidavit, he has not given many details of his entry and simply says that he got here by using someone else’s travel documentation and he will not reveal the identity of the person whose documentation he says he borrowed.

HIS HONOUR:   Look, I certainly will make an order of the kind you seek but, Mr Swan, I do not know whether I should suspend its operation for 14 days or something like that whilst some attempt be made to contact him, but at the moment it is very difficult to see what utility even that would have when he has not bothered to remain in contact with those who want to assist him.

MR SWAN:   With respect, your Honour, that is correct.  It would appear to be futile to do that and, again, with respect to your Honour, it is quite apparent from the contents of Mr Belcher’s affidavit that the application so far as it refers to the bridging visa is simply unnecessary.  There is nothing for it to operate on.  There is no decision to refuse a bridging visa.  He has one.

HIS HONOUR:   Many, many years ago I worked in the Immigration Department, Mr Swan, and there used to be an aliens registration section in those days and, I think, anybody who was not naturalised – it extended to everybody – had to report, I think.  I never worked in that section but there was a section and ‑ ‑ ‑

MR SWAN:   In some respects, your Honour, the requirements have become less stringent and, in fact, in the circumstances of this particular case, there was the scope for placing reporting conditions on the bridging visa but at the time the bridging visa was granted he was represented by Mr Cosentino’s firm and, as I understand my instructions, considered unnecessary to impose bridging conditions.

HIS HONOUR:   Everything you say makes a case for the imposition of conditions in bridging visa situations, or some of them anyway, does it not?

MR SWAN:   Well, I think the process probably is that these situations are dealt with on a case‑by‑case basis and probably various classes of cases are dealt with in a different way.  So there is, I think, an attempt at flexibility, but in this case the flexibility, in a sense, has not served my client’s interests very well.

HIS HONOUR:   No.  Well, I am certainly prepared to make orders.  What was the basis upon which he said he should have a protection visa?  What was the persecution of which he complained?

MR SWAN:   Persecution, my understanding is, primarily as a member of the Turkish Communist Party.  There was some reference to his Kurdish background and that being a basis for persecution as well and also some reference to some transient association with the Kurdish Workers’ Party after the disbandment, for want of a better word, of the Turkish Communist Party.

HIS HONOUR:   Yes.  He says he attended meetings of the party.

MR SWAN:   Yes, and in his student days was arrested for handing out pro‑communist material, things like that, but subsequent to that he got a job with the Turkish Government as a teacher, so that does not bear out the allegation of persecution in that respect.  But there was some further association with the Communist Party, according to Mr Toprak, while he was a teacher in a part of Turkey near the Kurdish areas and he was taken into detention in one instance.  He was released shortly after that.  There was some turmoil in the village.  It is not quite clear to me what connection that has with his subsequent disappearance, but he says that causes him to fear persecution if he returns.

HIS HONOUR:   Well, you cannot think of any order that I could make that would have any utility of coming to his notice?

MR SWAN:   Other than the ones that I seek.  With regard to bringing the results of today to his notice, I cannot think of any order that would have any utility.  The only process which might achieve any wide circulation would be to place an advertisement in the newspaper but ‑ ‑ ‑

HIS HONOUR:   Well, I had thought of that.  It is a pretty undesirable precedent, is it not?

MR SWAN:   I would submit that that is correct, your Honour, yes.

HIS HONOUR:   Every time somebody wants to manipulate the situation – this may not be a conscious manipulation, but every time somebody has failed to comply with the rules of court or his obligations the respondent has to go to the trouble and expense of advertising.  I do not think that would be a good idea.

MR SWAN:   Well, although I do not have instructions specifically on the point, I am quite confident my client would not think it was a good idea either, your Honour.

HIS HONOUR:   Well, it would be a very undesirable precedent I would think.

MR SWAN:   Your Honour, before you proceed, just to set your mind completely at rest, apart from the question of delay, there is the other question of – this is an application for mandamus or a mandatory injunction and it is our submission that in respect of the two decisions of the Minister which might be possibly relevant, that is, the one under section 417 and the one under section 48B, and the latter one really concerns being allowed to have a second go at an application for a protective visa, mandamus and a mandatory injunction cannot imply because there is no duty – the legislation specifically provides that there is no duty on the Minister to consider such applications.  The relevant provisions are section 48B(6) and section 417(7) and the submission I have made is supported by a decision of the Full Federal Court in Bedlington v Chong, which is on the list that I have given your Honour.

HIS HONOUR:   So that all that the Minister has is a discretion whether to consider it or not, is that right, under 417?

MR SWAN:   Well, my point is he has no duty to consider the application.

HIS HONOUR:   Yes, that is what I am suggesting.

MR SWAN:   Yes, and, therefore, mandamus or a mandatory injunction will not lie.

HIS HONOUR:   I think there has been argument in this Court that that decision is wrong, but I do not think there is any decision by this Court that it is or is not, but it has been raised.

MR SWAN:   My researchers could not reveal any High Court decision saying Bedlington v Chong is wrong.

HIS HONOUR:   I have an idea it was touched upon in a couple of cases that have been reserved, but I am not sure.

MR SWAN:   My instructing solicitor suggests that it might have been argued in a case before your Honour.

HIS HONOUR:   Yes.  It has a familiar sound about it but, in any event, even if the Minister did have the duty, the circumstances here are very clear really, are they not?

MR SWAN:   Yes, that would be my submission, although what could be done about it at this very early stage of the proceedings is a matter of discretion for your Honour.  I mean, as things stand with the substantive application by Mr Toprak, he is just simply at this moment seeking an order to show cause and that is a matter for your Honour’s discretion.

HIS HONOUR:   Yes, quite.  Well, there is nothing further then, Mr Swan, is there?

MR SWAN: There is nothing further, your Honour.

HIS HONOUR:   I am just going to your summons.  I suppose I should make – order 2 should be the first order.

MR SWAN:   If you prefer that to the alternative set out in paragraph 3, your Honour.

HIS HONOUR:   Well, in this matter, in view of the failure of the applicant to take any steps to pursue the relief to which he claims to be entitled, to his failure to remain in contact with his solicitors, and the absence of knowledge on the part of anyone who might be expected to know of his whereabouts, a matter for which the applicant himself must be responsible, I am prepared to make orders in terms of the summons of the respondent of 12 January 2001, specifically paragraph 3 of that summons and paragraph 1 of that summons, paragraph 4 of that summons and paragraph 5 of the summons.

There are no further orders required, Mr Swan, are there?

MR SWAN:   No further orders sought, your Honour, thank you.

HIS HONOUR:   All right.  Yes, thank you, Mr Swan.

AT 12.43 PM THE MATTER WAS CONCLUDED