Wei v Minister for Immigration and Border Protection

[2015] HCATrans 144

[2015] HCATrans 144

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S9 of 2015

B e t w e e n -

WEI WEI

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON MONDAY, 15 JUNE 2015, AT 10.29 AM

Copyright in the High Court of Australia

MR L.J. KARP:   May it please your Honour, I appear for the plaintiff.  (instructed by Lawside Lawyers)

MS R.S. FRANCOIS:   If the Court pleases, I appear for the defendant Minister.  (instructed by Clayton Utz Lawyers)

HIS HONOUR:   Now, there has been an agreed statement of facts filed and you have provided me with some proposed directions, and I hope you have received from me some revisions to those proposed directions.

MR KARP:   Yes, your Honour.

HIS HONOUR:   And an indication that I am provisionally minded to refer the application for further hearing by a Full Court.  Is there any reason why that should not occur?

MR KARP:   Not from my point of view, your Honour.

HIS HONOUR:   Mr Karp, are there any facts that remain in issue?

MR KARP:   Not as far as I can see, your Honour.  I think both parties have some submissions to make about what should further go in the application book, and that as a minimum would be the decision of the delegate of the Minister cancelling my client’s visa.

HIS HONOUR:   Yes.

MR KARP:   Other than that, I have no issue or difficulty with the directions your Honour has proposed.

HIS HONOUR:   Very well.  Ms Francois?

MS FRANCOIS:   Your Honour, may I deal with the second issue first as to whether or not there are any remaining facts in issue?

HIS HONOUR:   Yes.

MS FRANCOIS:   Depending upon how the Court might view the agreed facts which are disputed as to relevance, there may be some propositions that would need to be put to the plaintiff, but if the Court takes the plaintiff’s view of those facts then there is no further fact in issue.

HIS HONOUR:   Well, I was going to ask you what is the relevance of those disputed facts.

MS FRANCOIS:   That relevance goes to the context in which an unfairness is asserted by the plaintiff.  So, in the circumstances, it appears that the plaintiff took steps to avoid his visa being cancelled by not notifying Macquarie University of the outcome of the ombudsman procedure, but it might be that that is a step too far.  It is tangentially relevant to assessing the overall fairness that I think is put against the decision of the delegate.

HIS HONOUR:   Well, as you well know, you would not be able to obtain an inference of that nature from the material that is currently before the Court.

MS FRANCOIS:   Yes, your Honour.

HIS HONOUR:   You simply cannot go that far on those disputed facts.

MS FRANCOIS:   Yes, your Honour, that is why I said that there would need to be some further – there would be some facts in issue and some cross‑examination, if necessary, so there is more material that we have.

HIS HONOUR:   Well, it is your point, Ms Francois.

MS FRANCOIS:   Yes.

HIS HONOUR:   What do you want to do?

MS FRANCOIS:   I am in the Court’s hands.  It depends upon what ‑ ‑ ‑

HIS HONOUR:   I am afraid I do not see the relevance of the facts that you have currently agreed.  If you wanted to take that further step, which is a significant step, you would have to take some other procedural course.

MS FRANCOIS:   Your Honour, I am relatively agnostic about the proposition, so ‑ ‑ ‑

HIS HONOUR:   Well, it is my job to be agnostic about these things, and at the moment I am inclined to strike out those paragraphs of the agreed facts because in themselves they go nowhere.

MS FRANCOIS:   Well, if that is the view of the Court, we do not need to be heard further, your Honour.

HIS HONOUR:   Very well.  Well, that is my view and that is what I would propose to do, but I will not do it immediately.  Now, the next question is on the facts that are agreed ‑ in the agreed statement of facts I mean – would you be making any submission that the inference should not be drawn that Macquarie University failed to comply with the relevant provisions of the Education Services for Overseas Students Act 2000?

MS FRANCOIS:   We would not wish to be heard on that, your Honour, that is a matter for the Court.

HIS HONOUR:   Very well.  Then I suppose the question then becomes what material the Court needs to determine this application, other than that which is contained in or referred to in the agreed statement of facts.

MS FRANCOIS:   Your Honour, we think the Court should at least have the material that was annexed to the first affidavit of my instructing solicitor, Ms Blake, which would effectively have been the court book in any appeal or proceeding below, which is the correspondence that the Minister’s delegate attempted and his file notes and then the decisions and that material.

HIS HONOUR:   All right, let me just identify that affidavit.

MS FRANCOIS:   Your Honour, that is the affidavit of 31 March 2015; in particular, your Honour, the matters identified in paragraph 3(a) to (o).

HIS HONOUR:   It helpfully has two paragraphs 3 but, yes, the first paragraph 3.

MS FRANCOIS:   I think it also has two paragraphs 2 as well.

HIS HONOUR:   Yes.  It certainly cuts down the number of paragraphs, Ms Francois.  All right, anything else from your side?

MS FRANCOIS:   Your Honour, we would wish to be heard faintly on order 2, proposed order 2, and that is the referral of the matter to a hearing by the Full Court.

HIS HONOUR:   Yes.

MS FRANCOIS:   It will be the Minister’s submission that this case does not have sufficient prospects of success, even on the agreed statement of facts as narrowed by the indication from your Honour.  As your Honour would be aware, third party conduct cases giving rise to jurisdictional error tend to fall into two categories.  There is the classic case of migration agent fraud and that type of case whereby some conduct of the third party the plaintiff will have been denied the procedural fairness that is accorded by the provisions of the statute, and then there is another type of category which is somehow the third party has information critical to the making of the decision that is only known to the third party and is not put before the decision‑maker or is not known to the applicant as being before the decision‑maker.

HIS HONOUR:   Yes.

MS FRANCOIS:   In this case, there is no doubt that the information in this case was Mr Wei’s enrolment in the course at the relevant point in time.  Mr Wei was well aware of his own enrolment and could have easily established that fact to the delegate.  The delegate did diligently try and contact Mr Wei at all of his addresses and telephone him, and had Mr Wei not been answering his phone in the way that he did or provided his up‑to‑date address he would have been able to correct the information before the delegate because he had that information in his own possession.

When one comes to the critical parts of the Act that are said to be subverted, which is Subdivision E of Division 3 of Part 2 of the Migration Act and section 119 commences the codification of procedural fairness, section 119(1) requires the Minister to:

notify the holder that there appear to be grounds for cancelling [the visa] and:

(a)give particulars of those grounds and of the information . . . because of which the grounds appear to exist; and

(b)       invite the holder to show within a specific time that:

(i)those grounds do not exist; or

(ii)there is a reason why it should not be cancelled.

So, with respect – and it is also apparent from the second reading speech – the premise of this provision in the Act is not that the section 19 of the Overseas Student Act will have been complied with and all information is correct but, rather, there is a risk the information is not correct and that applicants should be given an opportunity to provide the correct information to the Minister, which Mr Wei had in his possession.  So we say, even on the facts as limited, there is not sufficient prospects of success, and that is the only reason why we say it ought not be referred to a Full Court, your Honour.

HIS HONOUR:   Very well, thank you.  It appears to me to be a matter which is sufficiently arguable to be dealt with on a final basis, and in circumstances where any decision that I might make at first instance would be capable of being appealed to a Full Court it appears to me to be the appropriate course in this case is to refer the application to be determined by a Full Court in the first instance.

MS FRANCOIS:   As the Court pleases.

HIS HONOUR:   Now, Mr Karp, I do not want a Full Court to be burdened with more material than is necessary.  In circumstances where the paragraphs of the agreed statement of facts to which you objected will not be before the Court, does the Court need anything other than the agreed statement of facts and Ms Blake’s affidavit of 31 March?

MR KARP:   Your Honour, if the affidavit of 31 March is to go into the application book, then I would respectfully ask that my client’s first affidavit, that is of 8 January, go in as well, and his last affidavit which would explain some of the matters of which my friend takes issue, that is, the changes of address.  They are both short affidavits with few annexures or exhibits.

HIS HONOUR:   Are they in any way controversial?  I suppose that is a question for Ms Francois.

MS FRANCOIS:   Your Honour, because no facts relevant from those affidavits have been pressed for the agreed statement, I have not investigated whether or not there is any issue with those affidavits.  So the only reason we wish the Minister’s material, limited material, to be there is because that is the type of material the Court usually has before it with respect to these decisions.

HIS HONOUR:   Yes, I follow that.  Well, let us sort it out now.  We can all take a moment to look at this material.  Mr Karp, we seem to have three affidavits of Mr Wei.

MR KARP:   Yes, your Honour, I would simply be asking for the first and the third, that is, 8 January – the first on 8 January.

HIS HONOUR:   Yes, I see.  All right.

MR KARP:   And the last one which deals with the reason why Mr Wei did not update his addresses in part.

HIS HONOUR:   Yes.  Well, Ms Francois, I can see that you might have an issue with the second affidavit which Mr Karp does not ask me to place before the Full Court, but the other two affidavits seem innocuous enough to complete the picture.

MS FRANCOIS:   Your Honour, I think paragraph 4 of the affidavit on 30 May 2015 is contentious because those are the circumstances that I wish to explore that your Honour has held are not sufficiently relevant.

HIS HONOUR:   Yes.

MS FRANCOIS:   I think that is the same with 5, 6 – sorry, your Honour, it is just paragraphs 4 and 5.  I am not sure I am looking at the right affidavit because it does not seem to me to really explain his addresses.

HIS HONOUR:   Well, let us take them individually.  The first is the affidavit filed 8 January, it is an affidavit of 2 January, and you say, as I understand it, that paragraphs 4 and 5 are problematic – I will use ‑ ‑ ‑

MS FRANCOIS:   No, your Honour, I am prepared to ‑ no, sorry, your Honour, that was – with respect to paragraphs 4 and 5, the Court will have before it the slightly conflicting file note of the Department of Immigration officer, but I have ‑ ‑ ‑

HIS HONOUR:   Nothing turns on that, I would have thought, and they are not ‑ ‑ ‑

MS FRANCOIS:   No, your Honour.

HIS HONOUR:   No.  All right.  And it is his version of the same event.

MS FRANCOIS:   Yes, your Honour.

HIS HONOUR:   I am provisionally inclined to allow the totality of that material to go before the Full Court.

MS FRANCOIS:   Yes, we have no objection with that, your Honour.

HIS HONOUR:   Let us just focus then on the affidavit of 30 May, filed on 1 June.  Do you need a little more time to consider the detail of that, Ms Francois?

MS FRANCOIS:   No, your Honour, it is paragraphs 4 and 5 of that affidavit.

HIS HONOUR:   You have problems with?

MS FRANCOIS:   Yes, because that really relates to the contentious material that your Honour has removed from the agreed statement of facts.

HIS HONOUR:   Yes.  Mr Karp?

MR KARP:   Your Honour, I do not see the need to keep those paragraphs in the affidavit.

HIS HONOUR:   Yes, all right.  Thank you, Mr Karp.  Bear with me a moment.  The orders and directions I propose to make are as follows – they are lengthy but I hope comprehensive:

1. Strike out:

(a)paragraph (a) of the particulars to the application for an order to show cause;

(b)       paragraphs 6 and 10 to 17 of the agreed statement of facts;

(c)paragraphs 4 and 5 of the affidavit of Wei Wei, affirmed 30 May 2015.

1. Pursuant to rule 25.03.3(b) of the High Court Rules, order that the application for an order to show cause be referred for further hearing by a Full Court.

2. Direct that, save as modified by the following directions, Part 44 of the High Court Rules applies to the proceeding as if the proceeding were an appeal to this Court, Wei Wei were the appellant, and the Minister for Immigration and Border Protection were the respondent.

3. Direct that Mr Wei file seven copies, including one unbound, unperforated copy, of an application book and serve three copies of that application book on the Minister before 4.00 pm on 24 August 2015.  The contents of the application book are to be settled by the Registrar.  Subject to any further direction of the Registrar, those contents are substantively to include no more than the application for an order to show cause, the agreed statement of facts, the affidavit of Natasha Simone Blake, affirmed 31 March 2015, the affidavit of Mr Wei, affirmed 2 January 2015 and the affidavit of Mr Wei, affirmed 30 May 2015.

4. For the purposes of Part 44 of the High Court Rules:

   (a)fix the time for Mr Wei to comply with rule 44.02, governing written submissions of the appellant, as 4.00 pm on 20 July 2015;

   (b)direct that under rule 44.02.1(a), only the original and six copies of the documents be filed;

   (c)fix the time for the Minister to comply with rule 44.03, governing written submissions of the respondent, as 4.00 pm on 10 August 2015;

   (d)direct that under rule 44.03.1(a), only the original and six copies of the documents be filed;

   (e)fix the time for Mr Wei to comply with rule 44.05, governing written submissions in reply, as 4.00 pm on 24 August 2015;

   (f)fix the time for compliance with rule 44.06, governing annotated submissions, as 4.00 pm on 14 September 2015;

   (g)direct that under rule 44.06.1, only the original and six copies of the documents be filed.

5. Order that the costs of today’s directions hearing be costs in the cause.

MS FRANCOIS:   Your Honour, might I be heard?

HIS HONOUR:   Yes, of course.

MS FRANCOIS:   Your Honour, in relation to the first order, and I think paragraph (b) with respect to the agreed statement of facts, I think your Honour also needs to strike out paragraph 35.

HIS HONOUR:   Thank you, I had overlooked paragraph 35.  I will add paragraph 35 to order 1(b).  It will now read, “paragraphs 6, 10 to 17 and 35 of the agreed statement of facts”.

MS FRANCOIS:   And, your Honour, I have read some of the transcript of the Court’s hearing in ICAC v Cunneen and I was wondering whether or not the Court would be assisted by legislative material with respect to the procedural fairness provisions arising for cancellation decisions of visas in this case?

HIS HONOUR:   Definitely.  I will not make a direction to that effect, but it would be helpful to have that material filed with your submissions.

MS FRANCOIS:   As the Court pleases.

HIS HONOUR:   And if it were in an agreed form that would be even more helpful.

MS FRANCOIS:   We will endeavour to do that, your Honour.

HIS HONOUR:   Thanks very much.  Thank you, Ms Francois.  Mr Karp, did you have any comments on the proposed directions and orders?

MR KARP:   The only further comment, your Honour, is that in relation to order 1, it might be, for the sake of tidiness, that the first five words of particular (b) of the application of the order to show cause are also deleted.  Those are the words which deal with the question of the alternative.

HIS HONOUR:   Yes, that is tidy.  Anything else?

MR KARP:   Nothing else, your Honour.

HIS HONOUR:   Thank you.  All right, well, I will amend proposed order 1(a) to read, “paragraph (a) and the first five words of paragraph (b) of the particulars to the application for an order to show cause”.  Subject to those amendments, the orders I make are as previously indicated.  The Court will now adjourn.

AT 10.53 AM THE MATTER WAS CONCLUDED