Trinh v Nicholls & Anor

[2005] HCATrans 51

[2005] HCATrans 051

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M66 of 2004

B e t w e e n -

THI HONG TRINH

Applicant

and

NICK NICHOLLS

First Respondent

and

MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

Application for leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 FEBRUARY 2005, AT 11.04 AM

Copyright in the High Court of Australia

MR G.S.S. KUEK:   If it pleases the Court, I appear for the applicant.  (instructed by Access Law Lawyers)

MR S.P. DONAGHUE:   If it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

KIRBY J:   Mr Kuek, I know a lawyer named Hoi Trinh who is a lawyer of this city and was associate to Justice Kennedy.  I just mention that in case he is any relation to your client.  I do not assume that he is, but I thought I should mention that in case there is any relationship that caused any embarrassment.

MR KUEK:   I have no knowledge of this.

KIRBY J:   He is a most admirable lawyer who works in the Philippines for Vietnamese refugees who are still in camps there.

MR KUEK:   I would have no objection if there is any relationship there, your Honour.

KIRBY J:   I just mention it in case it causes any problems, but I did not see enough of the facts that suggested anything ‑ ‑ ‑

MR KUEK:   Thank you, your Honour.  I have filed a written submission in this matter.  I wonder whether the Court has had the opportunity of reading the written submission?

GUMMOW J:   Yes.

MR KUEK:   Unless the Court wishes me to elaborate, those are the submissions for the applicant.

GUMMOW J:   Yes.  Now, this is a matter in which you need leave, is it not, rather than special leave, I think, because it comes from within the Court.

MR KUEK:   Leave, your Honour, yes.

GUMMOW J:   Yes, thank you.

KIRBY J:   Just explain to me the alternative argument.  That is an argument that was not advanced before Justice Hayne, as I understand it.  Is that correct or not?

MR KUEK:   It was an argument that was not elaborated.  It was touched on very slightly but it was not ‑ ‑ ‑

KIRBY J:   I cannot quite hear you, I am afraid.

MR KUEK:   I think the answer is no, your Honour, it was not one that was pursued with any degree of vigour.

KIRBY J:   Is your point on that argument that your complaint concerns the conduct of the officer as well as the Minister?  The Minister may be able to say, “Well, I have no duty because Parliament has said I have no duty”, but the officer does not have that answer specifically because he has to act in accordance with law and he does not have the express statement of the Parliament that he has no duty to consider the ‑ ‑ ‑

MR KUEK:   That is correct, your Honour.

KIRBY J:   But the officer’s activities are all directed in the direction of the Minister who has this specific parliamentary protection that he has no duty to consider the application so why would one not say that that which the officer does, in this respect, is also within the cloak of the protection which is given to the Minister under the Act?

MR KUEK:   The protection applies to the power under subsection (1), your Honour.  However, that power can only be exercised by the Minister personally, and not by his officers, so to the extent that there may be attempts by the case officer to do work which would really be within the province of the Minister alone that would be ultra vires.

GUMMOW J:   But the officer has no dispositive power.

MR KUEK:   He has no power under subsection (1).  He has general powers under delegation.  He has no power under subsection (1).

GUMMOW J:   Exactly.

KIRBY J:   As I understand it, your argument is based on the proposition that though the officer has no dispositive power by formulating or by applying the guidelines he effectively stands at the gate as to whether a matter will go forward to the Minister, but that is not in fact factually true on the record, is it?  The matter still goes to the Minister but goes in a schedule, as I understand it, with the statement that these matters fall outside the guidelines.  Is that a correct understanding of the facts of the record?

MR KUEK:   What we say, your Honour, is that – the point, this, the Minister decides that this case did not fall within the guidelines.  It is arguable that his jurisdiction had been engaged.  Prior to that it is not engaged.  The point the Minister says, “I decided not to embark upon this jurisdiction”.  He has made the decision that the public policy guideline has not been fulfilled.

We say, your Honour, this, the first limb of the power under subsection (1) was thereby engaged.  Now, if that analysis is correct, your Honour, it would be wrong for the Minister to say that he does not propose to embark upon the jurisdiction because he has indeed embarked upon the first stage and to the extent that he has embarked upon the first stage of the jurisdiction that it is reviewable.  It is no longer protected by subsection (7).

KIRBY J:   Your client was married to an Australian citizen, is that correct?

MR KUEK:   An Australian citizen, that is correct, your Honour.

KIRBY J:   It was not entirely clear whether he was an Australian citizen or permanent resident.  I think he is described somewhere as a permanent resident.

MR KUEK:   I think in his statements, your Honour, you would find that he says he is an Australian citizen.

KIRBY J:   Anyway, you tell the Court that he is an Australian citizen.

MR KUEK:   He is, yes.  In any event, the guideline, paragraph…..talks about permanent resident or Australian citizen.  So, in any event, he is covered by the guideline, we say.

KIRBY J:   I know we are not sitting here on the merits of the case and must not get into the merits, but we constantly tell the Federal Court that they must not do so, but is there something I have missed in the materials as to why the case of the wife of an Australian citizen does not fall within the guidelines?  A long‑term wife, I think – I think the marriage took place many years ago.

MR KUEK:   They married in 1997.

KIRBY J:   What was the guideline that applied to exclude her?  Is the suggestion that this was a false marriage or a marriage of convenience or ‑ ‑ ‑

MR KUEK:   There is no such guideline, your Honour.

KIRBY J:   Because they worked together, I think, did they not?

MR KUEK:   They worked together.

KIRBY J:   In fact, her case was that she was necessary because he had failing eyesight and she was, in a sense, a carer for him.

MR KUEK:   Yes.

KIRBY J:   So it affects an Australian citizen, as well as your client, who is a non‑citizen.

MR KUEK:   My client was a non‑citizen, yes, but her husband is a citizen.

KIRBY J:   What was the guideline that, as it were, was fatal to your client?

MR KUEK:   …..that, your Honour, with respect, but the guideline that is helpful to my client is at page 44 of the appeal book.  It is 4.2.8:

Strong compassionate circumstances such that failure to recognise them would result in irreparable harm and continuing hardship to an . . . Australia citizen.

KIRBY J:   I know all that.  That is the affirmative material, but is there a guideline that says that people who marry Australian citizens when they are on short‑term visas in Australia fall outside the guideline?

MR KUEK:   Not that I am aware of, your Honour.  From my reading of the guidelines I cannot see any provision that fits the description your Honour ‑ ‑ ‑

KIRBY J:   I have to say that that is the matter that made me look at the matter carefully because it caused me some anxiety that that was so…..Maybe I do not know enough about the guidelines.  Maybe Mr Donaghue will enlighten me on that.

MR KUEK:   My friend might be able to assist your Honour.  I cannot assist your Honour in that regard.  Perhaps my friend can assist your Honour further on that point.

GUMMOW J:   Thank you.

MR KUEK:   Thank you, your Honour.

KIRBY J:   Your client would, of course, have – she would have the availability of the constitutional writs quite apart from the remedies under the Migration Act.

MR KUEK:   We say so, your Honour.  We say that as long as the error was committed by an officer of the Commonwealth and is not protected under subsection (7) she would have those rights.  We are at pains in the submission to distinguish between the difference ‑ ‑ ‑

KIRBY J:   It is a problem, as Justice Hayne pointed out in his reasons, that seeking remedies against the Minister is that Parliament has been very careful to cloak the Minister around with a statement that he has no duty to consider an exceptional entitlement of your client to stay in Australia.  That, therefore, does not appear to attract the relief clearly, one might say the constitutional relief against the Minister that is founded on a duty.

MR KUEK:   Yes.  I certainly appreciate the force of what Parliament has done, your Honour.  Hence, what I have to do is to persuade this Court this, it is at least arguable ‑ ‑ ‑

GUMMOW J:   You have to say that Mr Nicholls did more than make a recommendation.  He made a decision that he did not because he could not.

MR KUEK:   If we have to go that far, your Honour, we do go that far and say he did make a decision and the decision was adopted by the Minister without examining the evidence himself because there is no suggestion in the material I have that the Minister had gone to the case, not so the case officer.

KIRBY J:   I think the source of concern is you are talking Realpolitik; we are talking law because we are a court of law.  You are talking about what actually happens as we know from the enlightenment of programs such as Yes, Minister, but we have to apply the law and all that the officer does is to send up a schedule with a whole list of people protecting the Minister from the swamp of individual cases and Parliament has said the Minister does not have to provide the relief or even consider the matters ‑ ‑ ‑

MR KUEK:   If the Minister had not embarked upon this jurisdiction then I think my case might be somewhat weakened on that front.  However, our submission, your Honour, is that he has embarked upon this.  Alternatively, if he has not embarked upon the jurisdiction the advice he received was flawed, flawed in the ways that we outline in the written submissions in several ways, one of which is to the effect that there was reliance upon a consideration that there were some doubts about the authenticity of this relationship, but that was not a matter that was relevant to the advice.

The criteria was whether or not my client was married to an Australian citizen.  It may be that the bona fides of a relationship might go to discretionary aspects of this case but it does not go to the question of public policy.  Those are our submissions, your Honours.

GUMMOW J:   Yes.  Yes, Mr Donaghue.

MR DONAGHUE:   Your Honours, if I could deal immediately with the point raised by your Honour Justice Kirby.  If your Honours turn to page 8 of the application book, this is part of the decision of the Migration Review Tribunal.  The decision, the 351 decision is the decision to set aside and substitute something more favourable than a tribunal’s decision.  So, there has to be an adverse tribunal decision before you get to the 351 question.  Section 351 explains the history and – the MRTs decision explains the history and why the ‑ ‑ ‑

KIRBY J:   I realise that.  I was asking a question, as it were, anterior to that because it just was curious to me that a person who is (a) a long‑term resident in Australia, (b) a spouse of an Australian citizen, (c) allegedly a carer of an Australian citizen with disability who is afforded services and help is then liable to be removed in the way that has happened.  It just seems to me to be counter‑intuitive.

MR DONAGHUE:   The short answer to it, your Honour, is that the applicant arrived in Australia on a visa that permitted her to stay for a particular period of time, became an illegal entrant, and the criteria under the migration legislation at that time said if you did not make an application of this kind within 12 months of having become an illegal entrant you are out.  So, there was a 12‑month period ‑ ‑ ‑

GUMMOW J:   How did she become an illegal ‑ ‑ ‑

MR DONAGHUE:   Her visa expired on 18 March 1993 and she overstayed.

GUMMOW J:   I see.

MR DONAGHUE:   Had she applied within the next 12 months her application would not have been barred but because she did not, Schedule 3 – the relevant provisions are set out on page 9 of the application book – became a bar to her application and that was why she failed before the Tribunal.

KIRBY J:   She is (d) a person who has been here for more than 10 years in this country and, (e) she is a person whose big and fatal default is said to be that she got out of time.

MR DONAGHUE:   The factual history was complicated, your Honour, by a disagreement about when this relationship started.  At the time that she was originally here the applicant’s husband was married to someone else and was sponsoring that person to come to Australia.  The applicants had claimed, originally, to have lived together with the applicant before that other woman was sponsored to come here but then that evidence changed.

There were complicating factual circumstances.  The relationship proper did not commence until 1977, as I understand the facts, about four years after her visa had expired and the migration regulations say in those circumstances you can apply from offshore but you cannot lodge a valid application from within the country.

KIRBY J:   But she says, as to going offshore, that because of his illness and her need to support him that involves an expense that she cannot really afford it – her family in Vietnam cannot afford it.

MR DONAGHUE:   Yes, I accept that that is ‑ ‑ ‑

KIRBY J:   It seems a very hard case.  I know we are not involved in the merits but it seems a case of a certain degree of rigidity in the administration of the Act.

MR DONAGHUE:   That was her case for the exercise of the 351 but, in my submission, the answer is the answer that Justice Hayne gave which is the answer that all the members of this Court gave in the S134 Case, the companion case to S157, which is that in many ways, irrespective of whether there was some error in the process that led up to the discretionary decision, and we say there was not, but even if there was there could be no utility in granting relief in quashing that decision because mandamus cannot issue to require any further steps.  So, really that, in my submission, answers the proposition that has been put by the applicant.

KIRBY J:   What do you say as to the alternative argument that I do not think was advanced before Justice Hayne?

MR DONAGHUE:   Not as I understand it.

KIRBY J:   Is that correct or not?

MR DONAGHUE:   It was a little difficult to identify precisely the way that the case was put and your Honours may have seen from the transcript

there was a brief debate between the applicant’s counsel and Justice Hayne as to whether his Honour had dealt with the entirety of the way that the case was put.  In my submission, the alternative argument does not – the alternative being the possibility of attacking what is said to be the first step, public interest consideration, should be rejected on a proper construction of the power.

The power that has to be exercised by the Minister personally is only the affirmative power to substitute.  That did not happen in this case.  There was no affirmative exercise of power so the jurisdiction was not engaged, to use my friend’s expression.  All that happened is that the Minister decided not to consider exercising the power.  He plainly, in my submission, did that himself.  The decision that is challenged your Honours find at page 37 of the application book.  This is what is said to be the decision of the delegate, the first respondent.  The third paragraph says:

If you decide that you may wish to consider these cases . . . please indicate this –

It is, in my submission, plain on the face of that document that the delegate was not purporting to make any kind of decision here.  It had no legal effect under the Act.  It was a matter for the Minister and the Minister duly did decide, as is evidenced by the document at page 30 of the application book.  It is a document signed by the Minister.

GUMMOW J:   Yes, that is right.

MR DONAGHUE:   He says he has “read”.  He does “not propose to consider the exercise of that power”.  So, in my submission, the applicant has attempted to get around this Court’s ruling in S134 by focusing on the delegate but, on the facts, there is no foundation for that.  If the Court please.

GUMMOW J:   Thank you.

MR KUEK:   Your Honours, just in response to the last points that my friend raised, at 37 Mr Nicholls said:

Attached is a schedule for cases where requests have been made for the exercise of your public interest power –

He is right in saying that he invites the Minister to come back if it is otherwise.  However, there is no reference in the minutes to the case officer’s findings.  If you turn to page 30 of the application book it says this:

I have read the attached schedule dated 20 September –

Again, no reference of the case officer’s notes.  So the invitation to the Minister to come back and seek clarification and so forth is pretty empty when the Minister has nothing with which to make his own judgments as to whether or not he ought to take the matter further.

GUMMOW J:   Thank you. 

We do not consider that, having regard to the legal issues in this case, there are reasonable prospects of success were leave to appeal to be granted.  In saying this, we do not reflect upon any residual discretion the Minister may have under the Migration Act 1958 (Cth) in the circumstances outlined in argument. However, leave to appeal is refused and the applicant must pay the costs of the respondents.

AT 11.24 AM THE MATTER WAS CONCLUDED