Wilson v Minister for Immigration and Citizenship & Anor

[2012] HCATrans 88

[2012] HCATrans 088

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S41 of 2012

B e t w e e n -

THOMAS HUDSON WILSON

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

Application for an order to show cause

BELL J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE

ON WEDNESDAY, 11 APRIL 2012, AT 10.00 AM

Copyright in the High Court of Australia

MR T.H. WILSON appeared in person.

MR P.R.D. GRAY, SC:   May it please the Court, I appear for the first defendant with my learned friend, MR L.T. BROWN.  (instructed by Australian Government Solicitor)

HER HONOUR:   Thank you.  Mr Gray, I am told that there may be some difficulty with the video link.  Are you able to at least hear me?

MR GRAY:   Yes, indeed, your Honour, and we also have a view of the Bench.

HER HONOUR:   Good.  Yes, very well.  Yes, Mr Wilson.

MR WILSON:   Your Honour, I will be asking for an adjournment this morning.

HER HONOUR:   Yes.  What do I have before me today, Mr Wilson?  Your summons filed on 13 February 2012, is that right?  Yes, all right.  Now, you wish to make an application for an adjournment?

MR WILSON:   I lodged an application for legal aid approximately…..I notified Legal Aid via email and a fax, which I have both here, telling them that there were going to be further submissions lodged, if they could reserve their decision.....but they went ahead and refused me funding without those submissions being lodged.

HER HONOUR:   I see.  Mr Gray, what is your attitude to the application?

MR GRAY:   We resist the application for an adjournment, your Honour.

HER HONOUR:   Yes, very well.  I might just hear some further from Mr Wilson about that.  Mr Wilson, did you say you have some communication from Legal Aid New South Wales in relation to the matter?

MR WILSON:   I have some communication from me to them, your Honour.

HER HONOUR:   All right.  Can you explain to me the present position?  You applied for a grant of legal aid in connection with your claim for constitutional writ relief brought in this Court and you have been advised that Legal Aid New South Wales has determined not to grant you legal aid.  You are now proposing to make some further submissions to Legal Aid to draw to their attention the additional submissions that you have prepared in support of these proceedings.  Is that right?

MR WILSON:   Yes, I notified them, as I said, via fax and email that there were further submissions due, that I would be supplying them with further material, but they went ahead and refused it anyway.

HER HONOUR:   Yes.

MR WILSON:   But it means, your Honour, contained in those papers, in those documents, I requested an option of submitting further materials.

HER HONOUR:   Now, Mr Wilson, I am not sure, but there are probably about 300 pages in front of me.  Is there something you are particularly directing my attention to?

MR WILSON:   Well, basically the request to give me the opportunity to submit materials later.

HER HONOUR:   Opportunity to submit materials to whom, Mr Wilson?  Mr Wilson, you seem to have filed a great deal of material in support of the relief that you claim.  Are you telling me that there is some additional material that you wish now to file?

MR WILSON:   Well, I indicated when I submitted those documents, your Honour, yes I do.

HER HONOUR:   Are you explaining to me your dealings with Legal Aid New South Wales or have you moved to a different topic?

MR WILSON:   Sorry.  The materials that I would be submitting to the Court are the same materials that I submitted to Legal Aid.

HER HONOUR:   Legal Aid has determined your application and rejected it.  Is there anything further you want to put about why I would grant the application for an adjournment, bearing in mind it is opposed by the Minister?

MR WILSON:   I indicated to the Legal Aid Department that there were further materials to be submitted, that I was hoping that they would include in their decision process and they went ahead and ruled against me anyway without further material being submitted.

HER HONOUR:   What further materials did you have in mind?

MR WILSON:   Well, there is indication – I have just been diagnosed in the last few months with a heart condition.....that material be submitted.  There were expanded submissions that were going to be submitted as well.

HER HONOUR:   It is not readily apparent why expanded submissions would bear relevantly on the question of the grant of legal aid.  You bring proceedings in the original jurisdiction of this Court seeking certain relief arising out of decisions both by the Minister’s delegate and by the Administrative Appeals Tribunal.  It is not entirely clear to me, Mr Wilson, how knowledge of your heart condition or of even further submissions than the lengthy submissions that have been prepared might be thought to bear relevantly on the question of whether or not you come within the guidelines for the grant of legal aid.

MR WILSON:   That is my dilemma, your Honour.  I am a babe in the woods in regards to these decisions.  Those submissions I did not prepare myself.  I was given a hand with them.  There is no way that this can proceed without a proper legal counsel involved.

HER HONOUR:   Yes, thank you, Mr Wilson.  Mr Gray, what do you say in response to those submissions?

MR GRAY:   Your Honour, it appears that Mr Wilson’s application for a grant of legal aid has been refused and there is nothing arising from what Mr Wilson has been able to say to your Honour which would give any comfort to a prediction that legal aid might be forthcoming upon a further application or upon a renewed application and for those reasons the Minister submits that the matter should proceed.

HER HONOUR:   Yes, thank you, Mr Gray.  Is there anything further you want to put in support of the application for an adjournment, Mr Wilson?

MR WILSON:   Your Honour, just the opportunity to.....

HER HONOUR:   The plaintiff, who appears today unrepresented, applies for an adjournment on the ground that he has applied to Legal Aid New South Wales for a grant of legal aid to enable him to be represented on the hearing of the relief claimed in his application.  That application has been determined against him.  He wishes the opportunity to invite Legal Aid New South Wales to reconsider his application taking into account his medical difficulties and additional submissions that he has prepared in support of the primary relief claimed. 

The application is opposed by the Minister.  It is fairly submitted in that respect that nothing has been placed before the Court that would lead to the conclusion that legal aid is likely to be forthcoming.  In those circumstances, there would seem little utility in granting the adjournment that is sought and it is refused.

Yes, Mr Wilson.

MR WILSON:   Well, your Honour, in that case…..I cannot continue.  I do not have the skills.  I do not have the know‑how.

HER HONOUR:   I see.  Well, what is you seek to have me do?

MR WILSON:   At the risk of sounding repetitive, your Honour, grant the adjournment.

HER HONOUR:   I have dealt with the adjournment and it has been refused, Mr Wilson.  Now, is there anything further that you want to put in relation to the application filed on 13 February 2012 for an order to show cause?

MR WILSON:   Your Honour, I have to…..

HER HONOUR:   Sorry, Mr Wilson, just bear with me a moment – there may be some technical problem.  Mr Wilson, I wonder can I get you to stand closer to the microphone.  I understand there are difficulties in that the Minister’s legal representative may not be able to hear you.  These proceedings are being conducted by video link and it is necessary for you to speak into the microphone.  Mr Gray, have you had problems hearing Mr Wilson’s submissions?

MR GRAY:   Your Honour, there was one sentence which I did not catch properly.  However, I do not think it bore on the gist of what was being submitted and I felt able to adequately follow what Mr Wilson was saying.

HER HONOUR:   Yes.  I might just take up one matter with you, Mr Wilson, arising out of the submissions that have been filed by the Minister which direct attention to some exchanges between you and Justice Marshall, I think it was, in the Federal Court ‑ ‑ ‑

MR WILSON:   The Federal Court, yes.

HER HONOUR:   ‑ ‑ ‑ in which you indicated that you did not propose pressing the relief that you claim in these proceedings with respect to the determination of the Administrative Appeals Tribunal.  Is that the position?

MR WILSON:   I have not confirmed that yet.

HER HONOUR:   Well, I am seeking to know what your position is, Mr Wilson.  Perhaps you would tell me now.

MR WILSON:   Your Honour, I do not have – as I said to you earlier, I do not have the legal knowledge, I do not have the experience to make a determination in that matter.  In regards to your question, I apologise.

HER HONOUR:   What is it you seek to have me do today, Mr Wilson, apart from grant you an adjournment?  I have already ruled on that application.

MR WILSON:   Well, there is nothing you can do to help me.

HER HONOUR:   Mr Gray.

MR GRAY:   Your Honour, today we seek an order dismissing the application to show cause.  This would have the effect that proceeding VID585 of 2011 in the Federal Court would proceed to hearing and determination and the plaintiff would be able to ventilate the arguments he advances by way of challenging the AAT’s decision that it had no jurisdiction in the matter.

HER HONOUR:   Yes. 

MR GRAY:   We rely on our outline of submissions, your Honour, to that effect.

HER HONOUR:   Yes.

MR GRAY:   There were three additional documents referred to in our outline that were not annexed to Ms Nance’s affidavit, on which we rely, affirmed 3 April 2012.

HER HONOUR:   Just one moment, if you would, Mr Gray.  Mr Wilson, would you sit down.  Now, as I understand it, Mr Gray, Mr Wilson does not seek to advance any oral submissions.  Do I take it, Mr Wilson, that you rely on the material that you have filed, including the various exhibits to your affidavit, in support of the relief that you claim?

MR WILSON:   Yes.

HER HONOUR:   Very well.

MR WILSON:   As I mentioned, your Honour, there are some outstanding matters.  There is outstanding material that I would like to submit.

HER HONOUR:   What outstanding material do you wish to place before me?

MR WILSON:   I do not have it on me today.

HER HONOUR:   Is that outstanding material material with respect to your heart condition?

MR WILSON:   Well, it is the heart condition, my family.  There were statements – expanded statements from my friends, my family, our business interests, our financial status, psychologist reports.

HER HONOUR:   How is it suggested any of that material would be relevant to the grant of the relief that you claim in your application for orders to show cause?

MR WILSON:   A lot of that is new material, your Honour.

HER HONOUR:   That is not an answer to my question.

MR WILSON:   Your Honour, I have no idea what is going on here today.

HER HONOUR:   Yes.

MR WILSON:   This is why I asked for the adjournment in regards to the Legal Aid matter.  As you said, you have handled it.  There is nothing that I can add.

HER HONOUR:   All right.  Thank you, Mr Wilson, you may sit down.  Now, Mr Gray, you refer to an affidavit?

MR GRAY:   Yes, your Honour.  We have filed an outline of submissions for the first defendant dated 4 April 2012.  We rely on that outline.

HER HONOUR:   Yes, I have those.  Mr Wilson, do you have a copy of the submissions filed on behalf of the Minister?

MR WILSON:   I suspect I may have them somewhere.

HER HONOUR:   Yes, very well.  Mr Gray, were the submissions furnished to Mr Wilson?

MR GRAY:   Yes, they were, your Honour.

HER HONOUR:   Yes, all right.  Now, I am just ‑ ‑ ‑

MR GRAY:   Your Honour, in addition, the affidavit I mentioned, on which we rely, is an affidavit of Emily Jane Nance affirmed 3 April 2012 and it annexes various materials referred to in the outline.

HER HONOUR:   Just wait one moment.  Mr Wilson, you have seen the affidavit of Ms Emily Jane Nance?

MR WILSON:   Your Honour, I was emailed some material by the Minister’s Department at around 10 past 5 yesterday and I have not had time to go through any of it, so I suspect it may be contained in those documents. 

HER HONOUR:   What is the position ‑ ‑ ‑

MR GRAY:   Your Honour, that is a separate communication.

HER HONOUR:   I see.

MR GRAY:   That email contained three documents which we wish to draw to your Honour’s attention in case your Honour needed them today which are the current form of the application in the Federal Court proceeding that I mentioned a moment ago together with the submissions filed on behalf of Mr Wilson in that proceeding and the submissions filed on behalf of the Minister in that proceeding.

HER HONOUR:   I see.

MR GRAY:   Just so your Honour has the current form of the Federal Court proceeding and the issues raised in it should your Honour wish to have regard to those matters.

HER HONOUR:   Yes, very well.  I will come to that in turn.  For the present, has the affidavit of Ms Nance, filed on 4 April 2012, been served on Mr Wilson?

MR GRAY:   Yes, your Honour.

HER HONOUR:   Mr Wilson, do you object to any part of that affidavit?

MR WILSON:   I do not recall seeing it, your Honour.  I do not have a copy of it.

HER HONOUR:   Mr Wilson, I am told that it was served on you.  I propose to deal with the application in light of the stance that you have taken this morning upon an acceptance of what I am told by senior counsel, namely that it has been served on you.  You may sit down, Mr Wilson.  Yes, Mr Gray.

MR GRAY:   Your Honour, I am seeking instructions about the mode of service and when I have that information to the Court I will provide it.

HER HONOUR:   All right.  For the present, in light of the attitude that Mr Wilson takes, which is to tell me that he is not in a position to respond, as it were, to any question that I ask because he is in unfamiliar territory, as it were, appearing for himself now, I do not make any further observation about that save to observe that the application for an adjournment has been refused and I must proceed as best I can in the circumstances.  So you might inform me of the position as far as service of the affidavit of Ms Nance is concerned.  I understand from something you said to me a few moments ago that it has been served.  I will act and accept that and we might proceed.

MR GRAY:   Thank you, your Honour.  I do have instructions as to the mode of service.  I have just been handed a file copy of a letter dated 4 April 2012 to Mr Thomas Hudson Wilson, C/- Case Management, Blaxland Wing, Villawood Immigration Detention Centre with the address of that centre, by courier.  It is a letter which went from the Australian Government Solicitor.  It refers to this proceeding, your Honour, and it encloses by way of service affidavit of Emily Jane Nance affirmed 3 April 2012, an outline of submissions of the first defendant dated 4 April 2012 and the first defendant’s list of authorities and a folder of relevant legislative and case materials.

HER HONOUR:   Thank you.  Now, Mr Wilson, you have heard that.  Do you wish to say anything in response?

MR WILSON:   I have nothing.

HER HONOUR:   Very well, Mr Wilson, I will proceed on the basis of an acceptance of what I am told by senior counsel respecting the service of those documents.  Yes.

MR GRAY:   Your Honour, in addition to the materials annexed to Ms Nance’s affidavit, there were the three documents concerning the Federal Court proceeding I mentioned a moment ago.  They were documents referred to in our outline.

HER HONOUR:   I see.

MR GRAY:   Your Honour, might I briefly summarise the chronology which has led us to the present point? 

HER HONOUR:   Yes, that would be helpful.

MR GRAY:   On 10 March 2011, a delegate of the Minister made a decision cancelling the plaintiff’s visa.  Your Honour will see references to the material in paragraph 9.7 of our outline in this regard.  Your Honour, the next set of events that are relevant was as follows.  The letter prepared by the Minister’s Department notifying the plaintiff’s authorised representative of the cancellation decision was misdelivered and did not come to the authorised representative’s attention until 14 April 2011.  I refer your Honour in this regard to paragraphs 9.8 to 9.11 of our outline.  Your Honour, the next step in the chronology is that on 18 April 2011 the plaintiff applied to the Administrative Appeals Tribunal for review of the delegate’s cancellation decision.

HER HONOUR:   Now, that is a merits review.  Is that so?

MR GRAY:   That is so, your Honour.

HER HONOUR:   Yes, go on, Mr Gray.

MR GRAY:   However, the AAT did not proceed to review the delegate’s decision on the merits.  On 17 May 2011, the AAT decided that it had no jurisdiction to review the delegate’s decision and, your Honour, in this regard we have annexed the decision of the AAT.  It is to be found at pages 5 to 11 of the affidavit of Ms Nance that I mentioned before.

HER HONOUR:   Yes, thank you.

MR GRAY:   In short, your Honour, the AAT reached that conclusion because of its view of the effects of the statutory and regulatory regime.  Its view was that the effect of that regime was that the plaintiff was taken to have been notified of the cancellation decision earlier than he actually was and, therefore, the time in which to apply for review had expired.

HER HONOUR:   I see.

MR GRAY:   The next step, your Honour, is that on 10 June 2011, the plaintiff commenced the Federal Court proceeding, to which I referred before, challenging the AAT’s decision, albeit he did not do so using the correct originating process, but nothing turns on that.

HER HONOUR:   Can I just clarify this?  There are proceedings pending in the Federal Court of Australia calling into question the correctness of the Tribunal’s understanding of its jurisdiction.

MR GRAY:   That is so, your Honour.

HER HONOUR:   In those proceedings the parties have filed submissions, but in light of the commencement of the present proceedings in this Court, the Federal Court proceedings have been stayed.  Is that the position?

MR GRAY:   That is correct, your Honour.

HER HONOUR:   In the event that I do as the Minister submits I should and dismiss the present proceedings, the Federal Court proceedings will resume and Mr Wilson will have the opportunity to challenge the approach taken by the AAT to the determination of its own jurisdiction.

MR GRAY:   That is correct, your Honour.

HER HONOUR:   Yes, thank you.  Do go on.

MR GRAY:   Your Honour really has a grasp of later events, but for the sake of completeness I will finish the chronology.

HER HONOUR:   Thank you.

MR GRAY:   On 22 July 2011, the Federal Court made orders allowing the plaintiff to file and serve a substituted application and also made orders for submissions and material to be filed.  Your Honour has a copy of that order at page 13 of the annexures to Ms Nance’s affidavit.

HER HONOUR:   Yes.  Thank you, Mr Gray.

MR GRAY:   For completeness, your Honour, if your Honour requires them, the submissions that were filed and the substituted application that was filed should have reached your Honour by now.  They were provided to the Sydney Registry but only this morning – I am sorry, last night.  Your Honour may not need those.

HER HONOUR:   Mr Gray, I do not perceive the need.  Yes.

MR GRAY:   If your Honour pleases.  The next step that is relevant, your Honour, is that on 13 February this year, this application was filed in the High Court and in light of that fact, your Honour, on 9 March 2012 the Federal Court stayed the proceeding before it until the hearing and determination of this application in this Court.  The transcript of that occasion before the Federal Court is at pages 14 to 22 of Ms Nance’s affidavit.  Your Honour, might I summarise the circumstances in which the stay was ordered upon the application of the Minister?

HER HONOUR:   Yes.

MR GRAY:   My submission about that is that the stay was ordered in the following particularly relevant circumstance.  This application in this Court challenges both the delegate’s decision and the AAT’s decision, as your Honour mentioned a little earlier.  The challenge to the AAT’s decision raises serious issues for determination, but clearly the challenge to the AAT’s decision cannot proceed in two parallel proceedings.

Your Honour, you asked Mr Wilson about this point a moment ago.  Mr Wilson did tell the Federal Court on 9 March that he intended to abandon the challenge to the AAT’s decision that he makes in this Court and to focus only upon the delegate’s decision in his application in this Court.  But the current status of Mr Wilson’s intentions on that point is unclear.

HER HONOUR:   Yes.

MR GRAY:   However, even if, your Honour, the challenge to the AAT’s decision was deleted from the current proceeding, that alone would not be sufficient to allow the two proceedings to continue in parallel, in my submission.  The reason for this is as follows.  Depending upon the outcome of the challenge to the delegate’s decision, there may or may not be utility in challenging the AAT’s decision.  That is because if the delegate’s decision were to be set aside, there would be no subject matter for review by the AAT and no utility in an order from a court that the matter be remitted for determination by the AAT.

So, in my submission, the challenge to the AAT’s decision should not proceed in the Federal Court until the challenge to the delegate’s decision is resolved one way or the other and I include in that submission the possibility that time will not be enlarged for the applicant to be permitted to apply to challenge the delegate’s decision.

HER HONOUR:   Yes.  Now, let me just turn to the relief that is claimed. 

MR GRAY:   Yes, your Honour.

HER HONOUR:   There is a claim that the delegate’s decision be quashed by and with the writ of certiorari in paragraph 2 of the application.  Now, is this last submission a reference to the time limit respecting certiorari under the rules?

MR GRAY:   It is, your Honour.

HER HONOUR:   Yes.

MR GRAY:   Might I address on that point?

HER HONOUR:   Yes.

MR GRAY:   We submit on behalf of the Minister that time should not be enlarged to permit that challenge to the delegate’s decision or, indeed, to permit the challenge to the AAT’s decision to proceed.  Firstly, we will address the challenge to the delegate’s decision.  Your Honour might note that in paragraph 1 and, indeed, in paragraph 2, there are compendious references to both decisions.  If your Honour has the application for an order to show cause and looks at paragraph 2 again your Honour will see that the application for an order to show cause why a writ of certiorari should not issue is directed to both the delegate’s decision and the AAT’s decision.

HER HONOUR:   Yes, I see that, yes.

MR GRAY:   Firstly, I will address the challenge to the delegate’s decision.  Your Honour is very well familiar with the criteria upon which an enlargement of time might be granted.  The relevant rule is rule 4.02 and the relevant period within which an application for an order to show cause why a writ of certiorari should not be issued, that time limit is to be found in rule 25.06.1.  The criteria upon which an enlargement might be granted have been explained in authorities such as Marks.  If your Honour has our folder of authority, your Honour will find Re Commonwealth of Australia and Another; Ex parte Marks at tab 6.

HER HONOUR:   I have a folder with tabs 2, 3 and 8, Mr Gray.

MR GRAY:   I apologise, your Honour. I will just correct that reference. I am sorry, your Honour, perhaps your Honour has it on the bench in the ALRs. It is to be found at 177 ALR 491.

HER HONOUR:   Mr Gray, I do not have it, but perhaps you might just take me to the principle that you rely on from Marks.

MR GRAY:   Yes, your Honour.  In Marks, Justice McHugh referred to the criteria upon which enlargement of time might be granted in the context of the grant of what used to be called the prerogative writs and now, of course, constitutional writs.

HER HONOUR:   Yes.

MR GRAY:   The criteria always include, your Honour, an assessment of the prospects of success, but also extend to the reasons advanced for the delay in commencing the relevant application.  In particular, as his Honour Justice McHugh said in Marks:

A “case would need to be exceptional” –

in terms of all its circumstances, including reasons for delay –

before the time for commencing proceedings was enlarged by many months.

Now, that was a case which involved an application for an enlargement in the order of many, many months and here the enlargement sought, your Honour, is in the order of two months because the time limit for commencement of an application in relation to certiorari is six months.  Relevantly here there has been unexplained delay for eight months.

However, it is necessary for the delay to be explained and it is necessary for the Court to take into account such matters as the importance of the proceeding, the reasons for delay, the extent to which the case is exceptional as well as assessing the prospects for success.

Your Honour, we do not rely on the delay that occurred between the making of the delegate’s decision and the making of the AAT’s decision.  We think there is an adequate explanation that can be inferred for any delay attributable to that period.  The reason is that the applicant was seeking merits review in the AAT in relation to the delegate’s decision and had not yet been given the AAT’s decision that it had no jurisdiction.

HER HONOUR:   Yes, I understand.

MR GRAY:   However, we do say that the delay from the time of the AAT’s decision until the commencement of this proceeding is relevant and must be explained.  That was in the order of a little over eight months.

HER HONOUR:   Yes.

MR GRAY:   For the reasons outlined in writing in our outline we submit that no proper basis is disclosed in the grounds of the application to show cause for challenging the delegate’s decision and so your Honour is in a difficult position.  Your Honour cannot properly assess the prospects for the purposes of deciding whether or not to enlarge the prescribed time and no explanation has been given for the delay.  For those reasons, I should conclude, your Honour, we say time should not be enlarged.

Secondly, we address the challenge to the AAT’s decision.  The relevant relief principally sought in relation to the AAT’s decision is, in effect, mandamus.  In relation to mandamus rule 25.07.2 prescribes a period

for commencement of a proceeding of two months or “such further time as is, under special circumstances, allowed by the Court or a Justice”.

HER HONOUR:   Yes.

MR GRAY:   For similar reasons to those which I just advanced in relation to the delegate’s decision, your Honour is in a very difficult position in deciding whether or not time should be enlarged because your Honour has no explanation before you for the delay.  But perhaps there is a more important point in relation to the AAT’s decision and that is the presence or the existence of the proceeding in the Federal Court to which I have already ‑ ‑ ‑

HER HONOUR:   Yes.

MR GRAY:   The Federal Court has jurisdiction to review the AAT’s decision.  That is not the case with respect to the challenge to the delegate’s decision but it is the case with respect to the challenge to the AAT’s decision and, of course, an application was commenced within time in the Federal Court in relation to the AAT’s decision and further that application has progressed to the stage of submissions and is ready to be heard.  For those reasons, the interests of justice would best be served by dismissal of the application in this proceeding permitting the matter to proceed in the Federal Court.  For those reasons, we submit that the Court should dismiss the application to show cause with costs.

HER HONOUR:   Thank you, Mr Gray.

MR GRAY:   If your Honour pleases.

HER HONOUR:   Mr Wilson, is there anything you wish to put?

MR WILSON:   There is something I would like to add to that, your Honour.

HER HONOUR:   Yes.

MR WILSON:   In regards to the delegate’s decision, the mainstay, if you want to call it that, of my argument was that the delegate’s decision was predicated on fabricated information.  Now, do I have the evidence of that - absolutely.  That was going to make a part of the body of this added material that I was going to forward to you.  Materials were supplied to the Minister’s delegate by Corrective Services New South Wales in the full knowledge that that material was false.  Now, that material is supplied to the delegate in his decision‑making process.

HER HONOUR:   Is this – I think, Mr Wilson, I have gleaned from the application which sets out the grounds on which you claim relief, in what I will call ground 4 – paragraph 4 under the heading “Grounds on which Relief is Claimed” asserts that the delegate had regard to what you describe as “sensational and irrelevant materials”.  Is that the matter that you now ‑ ‑ ‑

MR WILSON:   That is part of it, your Honour.  There are two instances.  Newspaper clippings were supplied – the relevant stories were supplied to the delegate in regards to some intelligence material from Corrective Services.  We have no idea where the newspaper clippings came from, but apparently they materialised before the delegate and they were taken into account.

HER HONOUR:   Can I just take this up with you, Mr Wilson?

MR WILSON:   Yes.

HER HONOUR:   The delegate supplied detailed reasons for the conclusion that the visa should be cancelled.  Those reasons do not appear to take into account any newspaper clippings or the like.  The reasons, if I might endeavour to summarise them, would seem to be an acceptance that you have family ties in Australia and that the best interests of your children would be promoted by you remaining here and that there would be hardship to your wife in the event that your visa was cancelled, but outweighing those considerations were considerations of the protection of the community arising out of inferences that the delegate drew from your criminal record.

Now, one can appreciate there may be a number of arguments that you might wish to address about why the delegate could have come to a different decision, but the decision was that for the delegate to make there is nothing in the material that you have filed in support of the relief you claim which, on the face of it, lends colour to an arguably successful basis to challenge to that decision on the grounds that you advance in the application.

MR WILSON:   This is the additional material that I was speaking of, your Honour.  There is, for want of a better description – forgive me, I do not have the words, but there is some serious material to be submitted and as far as I understand it, on the authorities, the assessment process, as tainted as it is, the decision should have been stood aside or should be stood aside.

There are a number of other matters in regards to the actual assessment process itself that I should be submitting, that I will be submitting.  They would all have been included in the further submissions

that I am speaking of, your Honour, in regards to my legal aid application and application to the Court at the moment.

In regards to the certiorari and the extension period, the extension of the time, I was in prison at the time, your Honour.  I am not sure if you are familiar with the way, but conducting legal matters from within gaol – because I had started my run, as it were, in regards to this in 2009.  This information was supplied.  They were aware of it, aware of the fact that the intelligence was false in 2007 and yet they continued – they proceeded to supply that information to the Minister’s delegate - in 2009, two years after finding out that it was false. 

Now, as to whether the delegate took it into account or not is another story.  I suspect that information has entered into the process.  Your Honour, I am doing my best here, please.  The process is contaminated.  The sensational material, the newspaper reports, they were sensationalised.  There were matters mentioned within the press report that were never submitted in court at the initial trial that I got convicted on.  The mention of money and amounts of money - those matters were never submitted at trial as fact, or accepted and yet they were placed before the Minister’s delegate in his assessment.  So I am saying that the whole process was contaminated by those matters.

HER HONOUR:   Anything further you want to put?

MR WILSON:   In regards to ‑ ‑ ‑

HER HONOUR:   I will determine the application on the basis of the material that is before me.  You understand that, Mr Wilson?

MR WILSON:   I understand that, your Honour, and this is my dilemma.  I do not have the legal aptitude or ability to determine what is supposed to have been submitted, when it was supposed to be submitted, the Court rules, the regulations, which is why I am asking for that adjournment.  I keep harping on it, I know, but ‑ ‑ ‑

HER HONOUR:   You do, Mr Wilson.  Yes, anything further?

MR WILSON:   That is pretty much it.

HER HONOUR:   Yes, thank you, Mr Wilson.  You may sit down.

This is an application for an order to show cause why constitutional writ relief and other relief should not be granted respecting two decisions made under the Migration Act 1958 (Cth):

1.The decision of a delegate of the first defendant, the Minister for Immigration and Citizenship, made on 10 March 2011 cancelling the plaintiff’s visa on character grounds.

2.A decision of the Administrative Appeals Tribunal, the second defendant, constituted by Deputy President Handley, made on 17 May 2011 holding that the Tribunal had no jurisdiction to hear and determine the plaintiff’s application brought out of time to review the delegate’s decision. 

The Tribunal has entered a submitting appearance.  The plaintiff appears in person.  The relief that is claimed includes, as against each defendant, the issue of the writ of certiorari and is subject to the time limit of six months provided under the rules.  The Minister opposes the enlargement of time and on grounds set out in written submissions invites the Court to dismiss the proceedings.

The factual background may briefly be described as follows.  The plaintiff was born in New Zealand.  He entered Australia in October 1991.  In September 1994, he was deemed to be the holder of a category of visa that entitled him to remain in Australia as long as he remains a citizen of New Zealand.  Between December 1994 and December 2011, the plaintiff was continuously in prison serving terms of imprisonment for offences of violence other than for a period of two and a half months during which he was at liberty following his escape from custody and subsequent recapture.  He was granted parole in December 2011, but was taken into immigration detention immediately upon his release.

On 10 March 2011, a delegate of the Minister made a determination pursuant to section 501(2) of the Migration Act cancelling the plaintiff’s visa.  Such a decision must be notified to the former visa holder or to that person’s authorised recipient in the event that the person has given the Minister written notice of the name and address of his or her authorised recipient.  The plaintiff had supplied written notice of the name of his authorised recipient to the Minister.

The plaintiff had been notified of the Minister’s intention to consider the cancellation of his visa in August 2009.  Thereafter he had been granted extensions of time in which to make submissions as to why the visa should not be cancelled and it appears he made submissions personally and with the assistance of a representative. 

Among copies of papers supplied to the plaintiff, being material available to the delegate in connection with the decision, was a copy of the plaintiff’s Violent Offenders Therapeutic Discharge report together with other documents that included copies of newspaper articles which might be described as having been generally unfavourable to the plaintiff, being newspaper articles published at the time of his arrest following the escape, to which reference is made earlier in these reasons.  A further submission was furnished to the Minister on the plaintiff’s behalf thereafter.

Following the delegate’s decision to cancel the visa, a letter notifying the plaintiff of the cancellation was dispatched by prepaid post to the plaintiff’s authorised recipient.  It is accepted by the Minister that the letter did not reach the intended recipient in a timely way.  In the event, the plaintiff commenced proceedings before the Administrative Appeals Tribunal for review of the delegate’s decision on a date which the Tribunal found to be out of time.  The Tribunal determined the application upon the basis that it was without jurisdiction to entertain it. 

That conclusion is the subject of proceedings presently pending in the Federal Court of Australia.  Those proceedings were commenced on 10 June 2011.  They were regularised by order made on 22 July 2011.  Following the order of that date it appears the parties have filed submissions going to the question that the Minister concedes is a real question respecting the Tribunal’s determination of its jurisdiction.  Those proceedings are stayed by order of Justice Marshall pending the determination of the present proceedings.

To return to the relief that is claimed in the application for an order to show cause, prohibition is sought against the Minister together with injunctive relief restraining the Minister from removing the plaintiff from Australia.  Certiorari is sought against both the decision of the delegate and the Tribunal and mandamus is claimed against the Minister.  The final relief seeks an order that the Minister be directed to redetermine the cancellation of the plaintiff’s visa according to law. 

The claims for relief in the application are supported by unparticularised grounds that make general assertions, including that the delegate “did not have the power to make the decision to cancel my visa”, “did things that must not be done when he made the decision to cancel my visa” and of the denial of the plaintiff of procedural fairness in respects that are not further identified.

The decision of the delegate is challenged on grounds of Wednesbury unreasonableness and on the ground that the delegate had regard to “sensational and irrelevant materials”, that the delegate “asked unreasonable questions” and that the sensational and irrelevant materials did not bear on the question of whether the applicant passed the character test.  None of the grounds address the relief that is claimed against the Tribunal.

The proceedings were commenced some eight months after the Tribunal’s decision.  In this respect, the Minister draws attention to the observations of Justice McHugh in Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470 at paragraph [16]. Shortly put, his Honour there observed that in all but very exceptional cases the time limits respecting the issue of certiorari and mandamus should be rigidly applied. The Minister concedes that the delay in the present instance is not of the order of that in Marks, but notes the absence of any adequate explanation for it.

Insofar as relief is claimed against the Tribunal, the Minister’s submission is that the appropriate course is to refuse to enlarge time and dismiss that claim for relief thereby enabling the proceedings that are pending before the Federal Court to proceed.  Those proceedings will afford the plaintiff an opportunity to test the correctness of the adverse determination of the jurisdictional issue.  I accept that submission.

Turning to the relief that is claimed respecting the delegate’s decision, in considering whether time should be enlarged to enable the claims for relief against the Minister to go forward, it is appropriate to have regard to the prospects of ultimate success.  The Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that he does pass that test.  A person does not pass the character test if the person has a substantial criminal record within the meaning of the Migration Act.        It is not in issue that the plaintiff has a substantial criminal record. 

The delegate concluded that the plaintiff represents a risk of harm to the Australian community and that even if his risk of reoffending is relatively low, the violent nature of his past criminality was so serious that even a small risk of reoffending is unacceptable.  The delegate considered that risk to outweigh countervailing considerations which included the best interests of the plaintiff’s children and the hardship that his wife may suffer through cancellation of the visa.

From the material filed in support of the final relief that is claimed and the grounds to which reference has been made earlier in these reasons, the plaintiff’s principal complaint appears to be that the delegate wrongly took into account the contents of newspaper articles that were unfavourable to him.  Nothing in the delegate’s reasons on the face of them lends support to that concern.  The assertion of Wednesbury unreasonableness is unsustainable.  No arguable basis for the grant of final relief is established. 

In those circumstances, I accept the submission that there should not be an enlargement of time respecting the relief claimed against the Minister, both for certiorari and mandamus and, for the reasons given, I make the following order:  the application is dismissed with costs.

Now, Mr Gray, does that attend to all matters?

MR GRAY:   Yes, your Honour, save that I wish to make one brief reference to a submission I made earlier.

HER HONOUR:   I am sorry, Mr Gray, yes.

MR GRAY:   Yes, your Honour, I said to your Honour that the plaintiff was seeking mandamus in relation to the AAT decision.  That was incorrect. 

HER HONOUR:   Yes.

MR GRAY:   However, I do not apprehend that that had any effect on your Honour’s reasons for decision.

HER HONOUR:   It did not, Mr Gray, and I do not believe my reasons need revision in light of that.  I think the claims for relief, as I apprehend them, were as indicated in the course of my reasons. 

MR GRAY:   They were, your Honour, and I apologise for my misreading of the application.

HER HONOUR:   Not at all, Mr Gray.  Thank you for your assistance. 

MR GRAY:   There is nothing further from our side, your Honour. 

HER HONOUR:   Yes, very well.  I will adjourn.

AT 11.12 AM THE MATTER WAS CONCLUDED