Won & Ors, Ex parte- Re Minister for Immigration and Multicultural Affairs

[1998] HCATrans 85

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S24 of 1998

In the matter of -

An application for Writs of Prohibition, Certiorari and Habeas Corpus

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

Respondent

Ex parte -

JEAN HEE WON

First Prosecutor

YOUN HWA KIM

Second Prosecutor

SOO HYUN LEE

Third Prosecutor

EUN SOOK JEONG

Fourth Prosecutor

KAE HEE KIM

Fifth Prosecutor

OK LIM HOANG

Sixth Prosecutor

MI SUN MOON

Seventh Prosecutor

MI YON CHONG

Eights Prosecutor

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 26 MARCH 1998, AT 10.32 AM

Copyright in the High Court of Australia

______________________

MR I.L. HARVEY:   May it please the Court, I appear for the prosecutors.  (instructed by Williams Hussain)

MR R.T. BEECH-JONES:   I appear for the proposed respondent.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   What is happening in respect to this?

MR HARVEY:   In respect to this matter, your Honour, we sought to enliven the constitutional jurisdiction of this Court on the basis that it was the last avenue, the last forum available to review a decision of the Minister to cancel the tourist visas of the prosecutors.  Since the application was filed, we have now received new notices of cancellation under section 116 of the Migration Act which again purport to make new decisions cancelling the tourist visas of the prosecutors.

Having regard to that development, that now provides a basis for review of that cancellation decision in the Immigration Review Tribunal.

HIS HONOUR:   Would you tell me, which I could not follow from the documentation, why there was not a right of internal review still open?

MR HARVEY:   Your Honour, the cancellation decision is an Immigration Review Tribunal reviewable decision pursuant to the Migration Act.  If the decision to cancel had been taken ‑ ‑ ‑

HIS HONOUR:   Why do you say ‑ if it was an IRT reviewable decision, it would be excluded by section 338(2)(d), would it not?

MR HARVEY:   It is not a judicially reviewable decision by virtue of section 338(2)(d).  If one goes to the regulations which prescribe an IRT‑reviewable decision as including a decision to cancel a visa, one then goes to regulation 4.10(1)(b) and one finds that within 2 days of the cancellation, if one wishes to engage the jurisdiction of the IRT, one must notify ‑ ‑ ‑

HIS HONOUR:   I wondered about that.  I wondered whether or not there may not be some misunderstanding about this matter.  Just for my own benefit, if you go through the steps, the first step is plainly 337, and this would fall within Part 5, reviewable decision, paragraph (b), would it, prima facie?

MR HARVEY:   That is right but, with respect, your Honour, 346(1)(d) is the starting point, prescribing certain decisions to be "IRT-reviewable decisions".

HIS HONOUR:   I know.

the following decisions are IRT-reviewable decisions:
.....
(d)  other decisions prescribed to be IRT‑reviewable decisions.

Now, what is the provision which makes it an IRT-reviewable decision?

MR HARVEY:   One then goes to section 346(1)(d), "other decisions prescribed to be IRT‑reviewable decisions".

HIS HONOUR:   Yes.

MR HARVEY:   Then one goes to what is an IRT-reviewable decision and  one finds they are prescribed and one then immediately goes to regulation 4.09 and subparagraph (d) prescribes as an IRT-reviewable decision "a decision to cancel a visa".

HIS HONOUR:   Yes.  It is all right.  In going through these, I had not seen paragraph (d).  I am clear now.

MR HARVEY:   The gravamen of the issue is simply that if a decision is taken under section 189 to detain an unlawful non-citizen, the officer must reasonable suspect that a person in the migration zone is an unlawful non‑citizen.  The only basis upon which the prosecutors could be characterised as unlawful non-citizens is if a valid cancellation of their visas had placed them in that category of persons.

HIS HONOUR:   I understand that.  So what do you propose to do about this matter?

MR HARVEY:   Your Honour, having regard to the development of the last 24 hours or so, we have now sought to engage the jurisdiction of the Immigration Review Tribunal which, under the regulations, must "immediately" is the word, immediately review the decision and it is a merits decision, merits review.  In that circumstance, your Honour, in my submission, it makes the particular matter which is the subject of the application by way of order nisi otiose or redundant because we now have a merits review forum in which to ventilate this issue "immediately".

HIS HONOUR:   So you wish to discontinue?

MR HARVEY:   We wish to discontinue the proceedings.

HIS HONOUR:   Mr Beech-Jones, you are not even a party to this, so ‑ ‑ ‑

MR BEECH-JONES:   I take issue with a couple of things my friend said, but I do not disagree with what he seeks now.

HIS HONOUR:   Mr Harvey, in that case I will eventually make an order.  You can discontinue if you like or I can make an order dismissing the proceedings.  It does not matter which.  It is a question for you.

But I should say this, that so far as I am concerned, you had no prospects of getting an order nisi on the material that was put before this Court.  There seems to be a real misunderstanding in the profession as to what is required when somebody seeks an order nisi.  There is an affidavit which was put on by the solicitor which, with great respect, rambled along.  It did not contain much admissible evidence, if it contained any.  I would have thought in the circumstances of this case that the first thing that would have been required would have been affidavits from each of the applicants deposing to exactly what had happened to them.  I could not have acted on the affidavit of the solicitors.  In fact, if the matter had proceeded, I was going to put to you this morning that you would have to seek an adjournment if you wanted to pursue the matter to put on evidence in a proper form.  But that matter ought to be borne in mind in future.  In a case such as this, it may be that the case would have to go to a trial judge for hearing on the facts, query whether or not the Court has jurisdiction still to refer the matter to the Federal Court and what the limitations might be on section 44 of the Judiciary Act.  But there was certainly no prima facie case on the materials.  All there was were some assertions by the solicitors about various things and there was no evidence upon which I would have granted an order nisi.  So that ought to be borne in mind for the future.

The other thing that concerns me is as to whether or not these women have been advised of their right to be removed out of the country instead of staying in detention.  I noticed one of the women said that she wanted to be out of here by 20 March or that she was going overseas on 20 March, a date that is long gone.  Somebody else said they were going in any event in April.  If this matter had come before this Court, no decision could have been reached, I would have thought, for several weeks or months and I do not know what benefit these people would get out of any hearing in this Court and, meanwhile, they would be required to pay the cost of their detention.  I hope they have been informed as to what their rights are in relation to this matter.

MR HARVEY:   Your Honour, may I simply assure you that that is the case and that they have not sought that avenue that is available to them by reason of the repercussions that such an avenue would have, namely that they would not be entitled to come back into the country.  The Korean authorities, as I understand it, would be informed of their deportation and that would have repercussions in Korea.

As to your first point, your Honour, I am fully seized of the need to put before you direct evidence of these matters.  The difficulty, of course, when someone is in Villawood in an hysterical condition, as I am instructed these girls are now, having been swept away in the middle of the night on one night back on 6 March, your Honour, and simply whipped away and placed in what they consider to be a gaol, they are, in my respectful submission, possibly not even in a condition to provide this sort of evidence upon which this Court would require.

HIS HONOUR:   That is hard to reconcile with the claim of the instructions according to your solicitor.  If they were able to give instructions, they would have been able to swear an affidavit.

MR HARVEY:   As long as it was translated and all those other mechanics had gone through, yes, your Honour, I accept that.

HIS HONOUR:   Yes.  In any event, that would be your problem for the future.  I certainly would not have been prepared to grant an order nisi to take up the time of this Court on the material that was put before the Court and I doubt if any other Judge of the Court would be.  There just simply was not any sufficient evidence or sufficient admissible evidence going to an issue to make an order nisi in a case like this.  Members of the profession ought to remember that an affidavit is no more than admissible oral evidence in written form.  It merely replaces evidence that would be given if the witness was in the witness box.

Now, what do you want to do?  Do you want to discontinue yourself or do you want me to formally dismiss the proceedings?

MR HARVEY:   The matter was proceeding this morning on the basis that we would file in the Registry, by consent, a notice of discontinuance and I understand that that is satisfactory.

MR BEECH-JONES:   That is not objected to, your Honour.

HIS HONOUR:   That being so, it requires nothing further from me.  It is sufficient to formally adjourn the proceedings but, in the meantime, you will file your notice of discontinuance and that will take care of the matter.

MR HARVEY:   If your Honour pleases.

AT 10.43 AM THE MATTER WAS CONCLUDED