Wen v Minister for Immigration and Citizenship

[2009] HCATrans 164

[2009] HCATrans 164

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M34 of 2009

B e t w e e n -

YU WEN

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Application for order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 23 JULY 2009, AT 9.59 AM

Copyright in the High Court of Australia

MR Y. WEN appeared in person.

MR W.S. MOSLEY:   If it please the Court, I appear for the defendant.  (instructed by DLA Phillips Fox)

HER HONOUR:   I will just hear from Mr Mosley first, Mr Wen.  Mr Mosley, I wanted to raise a matter troubling me in relation to this application and it concerns whether or not there is an arguable case.  Can I ask you to look first of all at the amended application for an order to show cause and can I ask you to look at paragraph 11 of the amended application and particularly the last sentence.  This concerns a timely application for a new student visa made within, as I understand the period, 28 days from the decision of the Migration Review Tribunal.

MR MOSLEY:   Yes.

HER HONOUR:   So this concerns events on 28 February and there is an allegation or assertion or evidence given that Mr Wen was advised to withdraw the application:

and the officer told me that I have to lodge a valid application before my bridging visa expired.

Then if I could ask you to look at the affidavit of Mr Wen which was sworn on 13 May 2009 and I wanted to go to exhibit C in that affidavit which is the decision in relation to the student visa application.

MR MOSLEY:   Yes.

HER HONOUR:   Now, I wanted to direct your attention, if I could, to page 2 of that decision and about point 5 of the page the decision‑maker recites that:

On 28/02/2008 you lodged a student visa application, however at the time of application you did not meet English Language Requirements as per Regulation 573.223(2), and you have subsequently withdrawn your student visa application.  You were advised to sit an IELTS test and apply for a new student visa before the expiry of your Bridging Visa E, or depart Australia and apply for a new student visa offshore. 

So you have the evidence on the one hand of being advised to withdraw the timely application for the student visa and the evidence here that “You were advised to apply for a new student visa before the expiry of your bridging visa”.  Then, as you will appreciate, Mr Mosley, ultimately – and this can be picked up from the top of page 3 – there was the lodgement of a valid student visa application but it was rejected because it was lodged beyond the 28 days stipulated in the regulations. 

So the sequence seems to be – and it is not a question of preferring one version of the evidence against another because they are both pieces of evidence that are relevant to what happened on 28 February – it seems to be suggested that there was advice given to withdraw that timely application and advice given that the fresh application had to be made before the effluxion of the bridging visa’s time and then ultimately the decision wholly turned on the fact that there was no timely application made within the 28 days.

Now, I raise those matters as troubling and I do not put it any higher than that and I express no views about them in the context of there being an assertion that there is no arguable case.  I do not know that the Minister would have necessarily had any opportunity to consider the kind of point that I am making to you now and I do not know what the possibilities are in relation to dealing with the situation.  I do not know, for example, whether there is any possibility that the timely application can be reinstated.  It may not be possible.  I do not know whether Mr Wen could still go offshore and apply for a valid student visa. 

These are factual matters which are not available to me and I just do not know whether you have any suggestions about the best way of dealing with this or whether it might be appropriate to have the Registry seek some pro bono assistance for Mr Wen so these matters can be ventilated properly as between the parties just to make sure that the application for constitutional writs is dealt with properly having regard to those matters.

MR MOSLEY:   Yes.  Well, in relation to the general matters about the two points your Honour has made arising from the decision the subject of the challenge or referred to in the decision the subject to challenge and what is said in paragraph 11 of the applicant’s amended application for an order to show cause, one submission that I would make to your Honour is, what is sought to be challenged here, of course, is a decision made by a delegate of the defendant in respect of an application which was made on 8 July 2008, that is, what may have gone before that is not the subject of challenge.  What is challenged is, put in lay terms I suppose, an application is made on 8 July which is in all respects a valid application and it is considered ‑ ‑ ‑

HER HONOUR:   Valid but out of time.

MR MOSLEY:   Valid but made out of time, that is right.  So one of the relevant criteria that must be satisfied for the grant of the visa has not been satisfied and it is that which is the subject of challenge by the applicant in the amended application for an order to show cause.  He says:

THE RELIEF CLAIMED is –

and, of course, under the rules, as I understand it, he is restricted to what is claimed in the application –

A writ of certiorari issue quashing the decision made by Immigration Office on 30^th July 2008.

So that decision that is made relates only to an application on 8 July.  Now, he may have other recourse, as I understand it, and this is only from the Bar table and without instructions, that he can go offshore and apply for a visa offshore.

HER HONOUR:   Yes, I thought that was the case, but ‑ ‑ ‑

MR MOSLEY:   That is even suggested in his own material, but he decided not to, but he could have done, had gone offshore, but he decided that he would not do that.  He made his application for review to the MRT and that was also late.  So they did not have jurisdiction, as your Honour will have seen, to review the decision.

HER HONOUR:   Yes, I think that was four days late.

MR MOSLEY:   That is right, it was, your Honour.

HER HONOUR:   Yes, and I understand the law in relation to that and the fact that it is not possible for the Tribunal to undertake ‑ ‑ ‑

MR MOSLEY:   For the Tribunal to extend.

HER HONOUR:   It is not possible or permissible for it to undertake any exercise of jurisdiction in those circumstances.

MR MOSLEY:   That is right.

HER HONOUR:   It may well be that what I have highlighted to you turns out to be irrelevant or in some other way not pertinent to the application for constitutional writs, but there is a concern in relation to the matter being dealt with comprehensively if there is some aspect of the matter that should be explored better than it has been so far on the material before me.  I mean, I do not want to be raising fruitless worries, but I am hoping you can see what I am concerned about despite you pointing out to me or reminding me that the applications made in respect of the decision of 8 July is ‑ ‑ ‑

MR MOSLEY:   Yes, that is the principal matter that I put and what preceded that, because he made a number of ‑ ‑ ‑

HER HONOUR:   Yes, there is obviously a history behind the application being made on 8 July.

MR MOSLEY:   Quite a history.  He made three applications.

HER HONOUR:   It may be there are some other courses of action available.  I simply do not know.  These are all factual matters that are not within my province, but it does strike me that it stands out – it is a very egregious aspect of this application – that it is directed to the decision of 8 July, but the decision of 8 July has this history behind it ‑ ‑ ‑

MR MOSLEY:   It does.

HER HONOUR:   - - - which is apparent on the face of the decision itself and is made part of the affidavit material in support of the application for constitutional writs.  So I think the best course might be to make some directions today giving sufficient time for, say, supplementary affidavits and submissions and to indicate on the transcript that I will ask the Registry to obtain some pro bono assistance for Mr Wen in relation to this application by inquiry of the Victorian Bar.  So that when the matter comes back on a return date, which I imagine would be on a date to be fixed, in order to be able to secure the pro bono assistance, this matter can be dealt with in that way.  You would have no objection to that, I take it?

MR MOSLEY:   Well, I might seek some instructions about that, but I think that sounds sensible.  My instructor puts two matters to me.  One, that application was withdrawn, but again that might come back to your Honour’s ‑ ‑ ‑

HER HONOUR:   That is partly the point.

MR MOSLEY:   Yes, your evidentiary situation.

HER HONOUR:   The application – and I will assume the supporting evidence will say the same as what has been said in paragraph 11 that it was withdrawn – how can I put this?  The suggestion seems to be at the encouragement of the officer dealing with the matter.

MR MOSLEY:   Yes, it may have been put, and I say this without instructions, but it may have been put to the applicant that, look, from the lay point of view, “If you lodge this without having satisfied the next criterion, it is going to be refused.  So if you want to pay your fee and lose it” ‑ ‑ ‑

HER HONOUR:   Or it might have been put, “Look, we cannot deal with it now because there is something extra that has to be done” ‑ ‑ ‑

MR MOSLEY:   So there may be a conflict there.

HER HONOUR:   Well, who knows, but the point is that had the timely application been accepted, as I would understand matters, it would be possible for the English language requirements update to have been done subsequent to the filing of the student visa application.

MR MOSLEY:   Yes, I take your Honour’s point.

HER HONOUR:   That is the point.  I mean, I may be wrong about these matters, but it is a troubling aspect of this particular application.

MR MOSLEY:   Yes, I follow that.  The other matter my instructor puts to me is that, well, there was still time after that in which to lodge a further application within the ‑ ‑ ‑

HER HONOUR:   I think there might have been a week after that within which to lodge a further application.

MR MOSLEY:   Yes, I would have to look at the dates in respect to that, but, in any event, your Honour ‑ ‑ ‑

HER HONOUR:   Yes.  Look, it may be at the end of the day all of this makes no difference or it may be otherwise.  I did have in mind still maintaining a fairly tight timetable, but just allowing sufficient time for pro bono counsel to be abreast of the matter.

MR MOSLEY:   Yes, as the Court pleases.

HER HONOUR:   What I have in mind, and I will put it to you, are directions that:

1.On or before 13 August 2009 the plaintiff file and serve any supplementary affidavits and submissions upon which he wishes to rely.

2.On or before 27 August 2009 the defendant file and serve any supplementary affidavits and submissions upon which he wishes to rely.

3.On or before 3 September 2009 the plaintiff file and serve any submissions in reply upon which he wishes to rely.

4.The hearing of the application for an order to show cause to be set down on a date to be fixed.

5.Costs reserved.

So if there are no objections to that timetable, those are the directions I would propose to make.

MR MOSLEY:   Only this, your Honour, I have done a number of cases over a number of years for the Department and it may be that if we get the applicant’s material and submissions on the 13th, it would be difficult to obtain instructions from persons who may or may not still be in the Department or in that area.

HER HONOUR:   Yes.  So you would want more time?

MR MOSLEY:   That is all I am thinking.  The 27th might be a bit tight.  I do hope to seek instructions from my instructor about that, but two weeks seems to just fly and it might be difficult to ‑ ‑ ‑

HER HONOUR:   Well, we could make that date 3 September.  Do you think that would be sufficient?

MR MOSLEY:   I think it may assist, on the basis of my knowledge of time these things can take to seek and get detailed instructions.

HER HONOUR:   All right.  Well, we could make the date in the direction No 2 3 September and that would make the time in direction No 3 10 September.

MR MOSLEY:   Yes.

HER HONOUR:   There is always the ability to apply for an extension of time if it is necessary anyway.

MR MOSLEY:   Yes, I appreciate that.  Thank you, your Honour.  Yes, thank you for that indication.

HER HONOUR:   And there will be hopefully counsel involved which would facilitate the ‑ ‑ ‑

MR MOSLEY:   Yes, that would be of assistance.

HER HONOUR:   - - - dealing with the matters if they are going to take more time than I have allowed.

MR MOSLEY:   Yes, I follow that, your Honour.

HER HONOUR:   Yes, all right.  Mr Wen, would you stand for a moment.  You will have heard what I have said.

MR WEN:   Yes.

HER HONOUR:   What I have in mind, as you will have heard, is that the Registry seek some pro bono assistance for you which means that you will have counsel to appear on the matter.

MR WEN:   Okay.

HER HONOUR:   The matter will then be dealt with according to the directions that I have made.

MR WEN:   I understand.  I just want to ask a question, sorry.  If there is an error with the processing of my application in my Department of Immigration, can I go back to MRT, because the Magistrates Court does not take this?  There is no like ‑ ‑ ‑

HER HONOUR:   When you have counsel appearing for you pro bono, you will be able to raise these questions with counsel.

MR WEN:   Okay, sorry.

HER HONOUR:   So that will be of assistance to you in relation to your queries.

MR WEN:   Thank you very much, yes.  So I just wait for the notice from you?

HER HONOUR:   The Registry will make these arrangements and will notify you.

MR WEN:   Yes.  Thank you very much.

HER HONOUR:   Thank you.  Thank you for your assistance, Mr Mosley.

MR MOSLEY:   Thank you, your Honour.

HER HONOUR:   Adjourn the Court.

AT 10.18 AM THE MATTER WAS CONCLUDED