Re: Minister for Immigration and Multicultural Affairs ex parte Grandlouis S118/1997 [1997] HCATrans 342 (29 October 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S118 of 1997

In the matter of -

An Application for Writs of Mandamus and Prohibition

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

Respondent

DAVID GORDON GRANDLOUIS

Prosecutor

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 29 OCTOBER 1997, AT 2.46 PM

Copyright in the High Court of Australia

MR T.A. GAME, SC: If the Court please, I appear for the prosecutor with my learned friend, MR G.P. CRADDOCK. (instructed by Kessels & Associates)

MR A. ROBERTSON, SC: If your Honour pleases, I appear for the proposed respondent. (instructed by the Australian Government Solicitor) I realise this is an ex parte application.

HIS HONOUR: Yes. I directed that you be notified of the matter.

MR ROBERTSON: If your Honour pleases. May I indicate that so far as the Minister is concerned, I am instructed that, from his point of view, the status quo should be preserved and I have indicated to my learned friend, Mr Game, that subject to whatever reciprocal undertakings may be either necessary or forthcoming from the prosecutor's side, the Minister would be willing to undertake not to decide the matter of 501, 502 without, say, seven days written notice of his intention to do so to the prosecutor. So, so far as the Minister is concerned, he is willing to give that assurance or undertaking to preserve the status quo pending on how the matter might be disposed of, whether in this Court or in the Federal Court.

HIS HONOUR: What do you say about the power to remit?

MR ROBERTSON: Your Honour, I had taken the perhaps somewhat naive view, until I spoke to my learned friend Mr Game, that it would be possible to remit the matter under section 44 in so far as no decision had yet been made. That seemed to, on a quick look at it anyway, take the matter out of 475(1)(c) of the Migration Act 1958 because that talks about "other decisions made under this Act". Now, Mr Game took a more pessimistic view of that. But the issue seems to be reasonably clear. He wishes to preserve the non-Part 8 - that is the full panoply of judicial review grounds available to him in this Court and he does not want Part 8 of the Migration Act to affect the width of what he might be able to achieve.

But to answer your Honour's question directly, on the face of it, the proposed respondents view would be that it would not be, at the stage it has reached now, caught by 475(1)(c) of the Migration Act. I do not know whether your Honour has the same service as I have, but that is at page 48,401. That is the numbering at the foot of the page. Does that begin "Division 2"?

HIS HONOUR: Yes.

MR ROBERTSON: What I was reading to your Honour was 475(1)(c). As your Honour probably recalls, there is an express reference a few pages over in 485 to section 44 of the Judiciary Act.

HIS HONOUR: Yes.

MR ROBERTSON: Perhaps I have said enough for present purposes.

HIS HONOUR: Yes. Mr Game.

MR GAME: Your Honour, it might be convenient to commence by addressing the question of remitter, having regard to the fact that my friend has already foreshadowed some difficulties that we see with remitter. Formally speaking, before the Court is an affidavit of our instructing solicitor, Mr Ronald Kessels, and I read that affidavit for the purposes of formally putting the material before your Honour and there is a draft order nisi.

Now, if I could to - what we are asking, in effect, for in the draft order nisi is for writs of mandamus and prohibition with respect to decisions that would be, on our reading of the Act, judicially-reviewable decisions because they are "other decisions made under this Act". Now, the problem that we see with remitter is this, your Honour, section 476(1)(d) provides, as one of the grounds:

that the decision was an improper exercise of the power -

Subsection (3) cuts down that relief in (d), (e), (f) and (g) to exclude irrelevance, bad faith and abuse of - - -

HIS HONOUR: Yes, I appreciate that, but the first matter is that the case has to come within 475(1) to come into this Part, has it not? How does it come into 475?

MR GAME: It would come within 475 because we seek mandamus to make a decision which is a judicially-reviewable decision.

HIS HONOUR: But 475(1) says:

Subject to subsection (2), the following decisions are judicially-reviewable decisions:

Well, (a) and (b) do not apply. (c) is:

other decisions made under this Act.....relating to visas.

Now, what is the decision made under this Act that you would want to challenge relating to a visa, because on what Mr Robertson says and the undertaking, no decision has been made.

MR GAME: No, your Honour, that is the - quite, your Honour, but section 481 contemplates the making of orders, in effect, which demand the making of decisions. So that once the order was made - once the decision, for example, to grant a visa or the decision to cancel the visa was made, it is picked up by Part 8. We are seeking an order makaing, in effect - to make an order that makes a decision which is judicially reviewable and therefore covered by Part 8 because of the breadth of 481. If you look at 485, the breadth of the provision, it says "in respect of judicially-reviewable decisions", that is to say "in respect of" has the broadest context.

HIS HONOUR: My difficulty at the moment, and you still have not persuaded me of the correctness of your submission - or arguably the correctness of it is what is the decision relating to a visa which would constitute a judicially-reviewable decision within the meaning of 475?

MR GAME: A decision to grant the visa or da ecision to cancel the visa.

HIS HONOUR: But there has been no decision made under the Act.

MR GAME: No, your Honour, but sections 475 and 481 contemplate the making of orders in contemplation of decisions being made. One decision has been made which is that the Minister has made a decision to consider the exercise of his power under - - -

HIS HONOUR: Yes, I know, but the powers under 481 are "On an application for review of a judicially-reviewable decision", and a judicially-reviewable decision relevantly for present purposes is a decision made under this Act.

MR GAME: The Minister has at least made a decision at this moment to consider the exercise of his power under section 501 and 2

HIS HONOUR: I doubt if that is a decision for the purposes of the Act.

MR GAME: Your Honour, could I be heard on that, because subsection (e) of subsection (2) it refers to decisions to exercise powers and decisions to consider the exercise of powers. So that the Act specifically - - -

HIS HONOUR: But they are not - "The following decisions are not judicially-reviewable decisions".

MR GAME: No, quite, your Honour, but the Act contemplates that there are decisions and decisions to consider the exercise of a power.

HIS HONOUR: Yes, but if this matter was remitted, what would be being remitted is the jurisdiction of this Court.

MR GAME: Yes.

HIS HONOUR: And it would be the jurisdiction under section 75(v).

MR GAME: Yes.

HIS HONOUR: Now what you are seeking, as I understand it from the Minister's letter, he apparently concedes you are entitled to a visa subject to the question of cancellation. He says in that letter, which I think is 15 October, is it, that he has satisfied the criteria and talks about cancelling the visa, not refusing.

MR GAME: No, but satisfying the criteria means, in this context, he satisfies the criteria under section 501, because those criteria are the criteria under criteria 4001 which he has already satisfied.

HIS HONOUR: I know, but in his letter he says:

The Australian High Commission, Ottawa has advised that Mr Grandlouis has now satisfied all criteria for the grant.....However, the Minister for Immigration and Multicultural Affairs has indicated that he proposes to personally examine whether to cancel -

So it is not refusing a visa, it is cancelling, and if your argument is right about section 501 being spent, its greatest strength would seem to me to lie in respect of an application to refuse, another question altogether about cancellation which is an independent power, notwithstanding I notice in your affidavit you say it is a single power.

But I read that letter of the Minister's in effect to say that he accepts that you are entitled to a visa and, because he is talking about cancelling it, one assumes that he is talking about cancelling it in a notional sense, in other words, because of section 65 of the Act, you are now entitled to a visa subject to the question of cancellation.

MR GAME: Quite, your Honour, but the problem is that - - -

HIS HONOUR: Let me say this: I do not know why my time is being taken up with this application at all because if the Minister has no power, all his decisions are void. If that is the case, then the matter can be dealt with at some later stage. I cannot see in the material any prejudice to your client. He is out of the country. Even if you got a stay here today or some form of interim injunction, it is not going to advance his case in any way. If your submission is right, the Minister has no power, and anything he purports to do would be entirely invalid and of no effect.

MR GAME: Your Honour, there is a prejudice because it is impossible for the prosecutor to strike at the decision of the Minister in the notional moment between a decision made under 501 and 502. It is the power under 501 which is spent, on our argument, and then the Minister then proceeds to, within 14 days, table in Parliament a report on the prosecutor which in itself would be a gross prejudice to him. So that - - -

HIS HONOUR: In what way?

MR GAME: He gets published round the countryside or - - -

HIS HONOUR: He has already been published around the country, for that matter. He has been before the AAT. The Minister is only going to act on that advice but, in addition to that, you are asking me to stop the Minister from exercising a power which is vested in him and for which he is answerable to Parliament. I would certainly require some very considerable argument in a very clear case before I would exercise the discretion to prevent the Minister exercising a power.

MR GAME: The correspondence shows that the exercise of the power that is proposed relates to the same subject matter on the same grounds in respect of which he was unsuccessful in the - - -

HIS HONOUR: That depends upon whether or not 501, must be exercised by the Minister personally, whether or not that is another head of power and that the legislature is intended to give this, in effect, an additional form of power but it also depends upon whether or not a determination of the tribunal is binding on the Minister; it depends upon whether or not he has power to cancel, even though a visa has been granted, over his earlier decision and if he has an independent power, then it is rather difficult to say that he cannot exercise that because it may have the effect of avoiding the decision, even if that is his intention. If it is a power vested in him in the national interest and he wants to exercise it and it ai an independent power, well, that may be the end of it but, certainly, it seems to me at the moment there are very strong arguments against your whole case. Now, you may be successful, but even on your argument that Guba's Case in some way binds the Minister, it seems to me that you are taking the case into new territory.

MR GAME: Those are all matters that we would wish to argue.

HIS HONOUR: I know, and you have strong arguments in respect of a number of your grounds. I would certainly accept that is so but it is another question as to whether I should issue some interim relief against the Minister, particularly a power which is answerable to the Parliament of the country. I would want to be strongly of the view that the Minister had no power absent some compelling prejudice to your client. The prejudice at the moment that you have pointed to is that the Minister would have to put the facts before the Parliament. Well, the facts of the matter are already before the AAT; it is a public document; documents of this Court are a public document; they have the decisions of the delegate; they have the decisions of the AAT.

MR GAME: My friend has already indicated that he is - - -

HIS HONOUR: I know he has, so it is not a matter that would probably be relevant here. That is why I was asking what are you going on for, apart from this remitter question?

MR GAME: Your Honour, I am sorry, in a sense, I was drawn into an argument about the merits of the application. We are content with the undertaking that the Minister gives. That is a communication that I had with my friend just as we came into Court obviously.

HIS HONOUR: Yes. I understand that. The Minister is not going to take any action. That being so, the next question is should the matter be remitted rather than be determined by a Judge of this Court, and the jurisdiction that you would be seeking to exercise - that the Federal Court would exercise, as I put to you, would be the exercise of this Court's jurisdiction.

MR GAME: Yes. The only problem, your Honour, is that section 485(3) purports to cut that down and the effect of that - - -

HIS HONOUR: But once again you are back to the term "relating to a judicially-reviewable decision", and that is what I was putting to you.

MR GAME: If it is not caught by Part 8, there is no problem, your Honour.

HIS HONOUR: Well, has the Minister relevantly made a decision under this Act?

MR GAME: But my argument is that Part 8 is, in effect, a code that deals with contemplated decisions, having regard to section 481.

HIS HONOUR: It may be a code but I cannot see anything about "contemplated decision". It talks about "decisions made under this Act". There has been no relevant decision made under this Act. That is the beginning and end of it.

MR GAME: If the Minister was about to make a decision under the Act, then it may be that section 481(1)(d) would, in effect, enable you to strike at that decision before it was made if - - -

HIS HONOUR: But, again, 481 is predicated, "On an application for review of a judicially-reviewable decision". Now, at the moment, the Minister has made no relevant decision at all and that being so, what you are seeking is prohibition - in effect, what used to be called a premature grant of prohibition to restrain an invalid or what would be a non-jurisdictional exercise of power or an exercise of power beyond his jurisdiction and you would be relying on 75(v) of the Constitution.

MR GAME: Yes. Your Honour, the other problem that we saw was that section 485(1) is so broad in its application that it, in effect, precludes any application under 39B of the Judiciary Act which is the source of power for prohibition in the Federal Court "in respect of judicially-reviewable decisions". Now, "in respect of", when one looks at prohibition, must be in respect of decisions which are about to be made or decisions - - -

HIS HONOUR: But that is not a decision made under this Act because it has not been made.

MR GAME: In which case the reference to section 39B would be otiose because it is all about things that have not - in respect of prohibition, it is all about things that have not happened.

HIS HONOUR: I would have thought section 39B is all about powers that had been made. Prohibition ordinarily goes after somebody has purported to exercise a power which they had no power to do and it is true that there are many cases, including cases on 75(v) of the Constitution, particularly dealing with the Federal Court and the Family Court in which this Court has issued prohibition before there has been an exercise of jurisdiction although, ordinarily, the courts are about to embark on it, or the tribunals to embark on it. But in this particular case nothing has been exercised at all, has it, or relevantly?

MR GAME: The Minister has stated that he proposes to consider the exercise of the power under sections 501 and 502.

HIS HONOUR: Yes.

MR GAME: That, itself - I have already put my argument in relation to that - is a decision under the Act.

HIS HONOUR: Mr Robertson, for the Minister, seems to accept that 475 does not cover this case because the Minister has made no decision. Unless you can point to me some "decision made under this Act by the Minister" either in its natural and ordinary meaning of the words or within some extended definition of that phrase, I just do not see what your problem is.

MR GAME: I have already said this to your Honour, that the decision that has been made is a decision to consider the exercise of the power under section 501 and 2.

HIS HONOUR: But that is not "a decision made under this Act".

MR GAME: Yes, it is, your Honour.

HIS HONOUR: Where do you get that from?

MR GAME: Well, because the Act contemplates a distinction between "exercise of power" and "decisions to consider the exercise of power" and there are a number of provisions in which that distinction is drawn. All of the discretionary powers are referred to: section 48B, section 417 and so forth, all make that distinction. The Minister, under 501, intends - - -

HIS HONOUR: I am sorry, did you just refer to 417?

MR GAME: That is an example, your Honour. It is an example of a decision to consider the exercise of a power. The distinction between exercising a power and a decision to consider the exercise of a power.

HIS HONOUR: Yes, but then they substitute for a "decision of the Tribunal".

MR GAME: Yes, but does not have - it is "a duty to consider whether to exercise power" under subsection (7). That is an example of a decision to consider the exercise of a power.

HIS HONOUR: It is a different thing having "a duty to consider" and "making a decision under this Act", is it not?

MR GAME: Yes, but if you look at sections 501 and 502:

If -

the Minister, acting personally, intends to make a decision -

what we are striking at is the fact that he has embarked upon this exercise at all. We say he is not empowered to embark upon this exercise.

HIS HONOUR: I understand you say that but the fact that he is intending to make a decision tells heavily against the fact that he has made a decision under this Act. If he is intending to make a decision, he cannot have made the decision.

MR GAME: Your Honour, that entirely depends on whether or not you can draw a distinction, or one must draw a distinction between making the decision and determining to embark upon a consideration of an exercise of power. Everything indicates, in this case - for example, the Minister has written a letter offering natural justice. He has, in effect, embarked upon a particular process.

HIS HONOUR: That is right, but as far as I can see he still has not made "a relevant decision under this Act". He has not exercised the power.

MR GAME: The reservations that we had about remitter are the matters that I have already outlined to your Honour. Subject to those reservations, we are unable to object to remitter.

HIS HONOUR: Right, yes. Thank you, Mr Game. Mr Robertson, what do you say about these matters?

MR ROBERTSON: Your Honour, I do not want to - - -

HIS HONOUR: No, you do not want to bind yourself, I suppose.

MR ROBERTSON: I was going to say this, your Honour, the only thing additional to what I have earlier said about the view about "other decisions made under this Act" is that if for some reason the court, the Federal Court that is, thought there was some jurisdictional difficulty, my learned friend would be protected to some extent by having the transcript available of the hearing this afternoon and one would have thought, in the ordinary course, that if there was a fundamental jurisdictional difficulty, then he would be protected by the course of this hearing this afternoon, so that if it were then necessary for him to make fresh application to this Court in order to preserve his rights which a judge of the Federal Court might say, contrary to what I have been putting, otherwise it being defeated, then he would be protected in that respect.

So that even if what I was putting to your Honour is incorrect, then it would not seem really to matter in the sense that it would not prejudice Mr Game or his client, so far as I can see at the moment.

HIS HONOUR: No, at the moment it seems to me that there has been no decision made under this Act. The most that can be said is that the Minister has embarked on a process of making a decision and it may be that he even intends to make a decision under section 501 but, at the moment, there has been no decision made under this Act that is relevant.

MR ROBERTSON: Yes. Perhaps I can add this as well, your Honour, that 417, which I know is only an example my learned friend gave, does seem to be in a particular category when one looks at the 417(7) which expressly spells out, as a separate matter for mention, the question of the "duty to consider' and maybe that is why 475(1)(e) is in those extended terms in that particular case.

But, your Honour, in my respectful submission, it is really just a matter of preserving the status quo. If your Honour were minded to remit the matter, one would think that the order would be the usual form of order, remitting by consent, I would think, to the New South Wales District Registry of the Federal Court and that the steps taken in this Court would, indeed, be steps taken in that court, reserving costs, and it should, in my respectful submission, be on the basis that the status quo is preserved. I put what I am instructed to put on behalf of the Minister. The Minister would also wish there to be some reciprocal assurance that the matter would be prosecuted with expedition in the Federal Court and also, as part of the status quo, that Mr Grandlouis not exercise whatever future rights he may have under a visa to be granted because, at the moment, as I understand it anyway, he is in Canada and it would seem to be part of the status quo that if the matter is prosecuted quickly then he should stay there until the matter has been resolved as a quid pro quo for the Minister undertaking to give him due notice of - - -

HIS HONOUR: What has happened to the visa? Has he actually been given a visa yet?

MR ROBERTSON: I read that letter as your Honour read it, that is that he was entitled to get one and would get one. Obviously, he cannot have one cancelled unless he has one.

HIS HONOUR: That is right.

MR ROBERTSON: But that may be a simplistic view. Whether he has actually got one yet, I really do not know, but my learned friend may - - -

MR GAME: He has not got one and they have got his passport.

MR ROBERTSON: He has not got one yet but as I read that letter it was proposed that he be granted a visa.

HIS HONOUR: Yes. Having regard to the terms of section 65 of the Act and the - - -

MR ROBERTSON: There is certainly no suggestion that he not, as I read it anyway - I have not got specific instructions on this but there does not seem to be any suggestion that it be withheld. Indeed, the contrary seems to be the suggestion, that he be granted it and then the 501 - there would be some contemplation of exercise of 501 and 502 power which could not be exercised unless he had a visa, as I understand it. So, in terms of mandamus, there does not seem to be any letter annexed to the affidavit saying to the Minister, "I insist you give it to me" and the Minister writing back and saying, "No". The inference is really that the Minister proposes to issue it and then immediately look at the 501, 502- - -

HIS HONOUR: Yes, the affidavit, no doubt because of the urgency of the matter, tends to break off. I came into Court not knowing quite what had happened in relation to the case, whether a decision had been made or what had happened.

MR ROBERTSON: Yes, but as I say, your Honour, I do not have specific instructions about the issue of the visa but I certainly have no instructions to suggest that it is not proposed to grant one as one would infer from that letter of, I think, 17 October that your Honour was looking at.

HIS HONOUR: It was the 15th, was it not?

MR ROBERTSON: Yes, the 15th, I think it was. If your Honour pleases.

HIS HONOUR: Mr Game, my intention is to remit the matter to the Sydney Registry of the Federal Court, to reserve the costs of this application to the Federal Court and to give you liberty to apply. If there is any problem about jurisdiction, the final matter is the matters that Mr Robertson has raised about undertakings on behalf of your client.

MR GAME: Obviously enough, the undertaking to prosecute with all due haste, there is no problem with giving that undertaking. With respect to the visa, the answer, really, is a practical one. Obviously enough, from his point of view, there cannot be any question of coming here until he knows what the situation is in relation to cancellation or otherwise of the visa. So, he is prepared to give an undertaking not to travel until such time as the application is determined. I think that is the answer.

HIS HONOUR: Not to travel or attempt to travel to Australia.

MR GAME: Yes. The reason I am just hesitating, your Honour, is because he can come to Australia on a visitor's visa, for example, for Christmas. Sorry, he undertakes not to travel to Australia. I am restricted to the application for a spouse visa - - -

HIS HONOUR: A class BC visa. What is it, a Spouse (Migrant) (Class BC) Subclass 100 Spouse Visa.

MR GAME: Yes. That would cover it, your Honour. I am sorry, the reason for my pausing there was a concern that there might be some other matter, but if it is covered by the spouse visa, that would cover the undertaking.

HIS HONOUR: Is the Minister content with that, having regard to the fact that he was desiring to exercise his powers under 502 to have a certificate of cancellation?

MR ROBERTSON: Yes, your Honour, because the question of whether or not there is some entitlement has not arisen yet and, if it does, well, it can be looked at then. I understand why my learned friend wants to reserve that possibility.

HIS HONOUR: Yes, I understand.

MR ROBERTSON: That seems fair enough.

HIS HONOUR: But does the issue of a 502 certificate cut off all other visas, the grant of all other visas? I thought in paragraphs 12 and 13 of Mr Kessels' affidavit - - -

MR ROBERTSON: I think it would, your Honour, but all I was saying just now was that if there were an application for the grant of another sort of visa, no doubt the Minister could look at the 502 question in that context because 502 seems to extend to refusing to - I think it would cover it because 501 talks about "refusing to grant a visa to a person" and that would be a general - it would be wide enough to cover visas generally, as I would understand it.

HIS HONOUR: Yes.

MR GAME: I think that covers the undertakings that my friend sought.

HIS HONOUR: Could I just put to you the tentative draft order that I contemplate making.

Upon the Minister undertaking to take no further action to cancel the Spouse (Migrant) (Class BC) Subclass 100 Spouse Visa, pursuant to section 501 and 502 of the Migration Act , and upon the prosecutor undertaking not to travel or attempt to travel to Australia in reliance on a Spouse (Migrant) (Class BC) Subclass 100 Spouse Visa, I make the following orders:

(1) Remit the present proceedings to the Sydney Registry of the Federal Court of Australia;

(2) That the costs of this hearing and of the proceedings be reserved to the Federal Court;

(3) -

perhaps I should amend that undertaking of the prosecutor also "to prosecute the matter diligently", the present proceedings, and then -

(3) Either party, liberty to apply to this Court on 24 hours notice.

MR ROBERTSON: Could I make one comment on those proposed orders, your Honour?

HIS HONOUR: Yes.

MR ROBERTSON: The Minister's undertaking, as I was instructed, was, as your Honour had it, to take no further action, etc cetera, pursuant to 501 and 502 without seven days written notice to the prosecutor first being given.

HIS HONOUR: I will make the following orders.

Upon the Minister undertaking to take no further action to cancel the Spouse (Migrant) (Class BC) Subclass 100 Spouse Visa pursuant to the powers conferred on him by sections 501 and 502 of the Migration Act 1958 until the further order of this Court or the Federal Court or the determination of these proceedings or the giving to the prosecutor of seven days notice of his intention to do so, and upon the prosecutor undertaking to prosecute these proceedings diligently and not to travel or attempt to travel to Australia on a Spouse (Migrant) (Class BC) Subclass 100 Spouse Visa pending the determination of these proceedings, I order:

(1) That the matter be remitted to the Sydney Registry of the Federal Court of Australia;

(2) That the costs of this application and the proceedings be reserved to the Federal Court;

(3) Both parties to have liberty to apply to this Court on 24 hours notice; and

(4) I certify for the attendance of counsel.

Is there anything further?

MR GAME: No, your Honour.

MR ROBERTSON: No, your Honour.

HIS HONOUR: Thank you for your assistance. Adjourn the Court.

AT 3.31 PM THE MATTER WAS CONCLUDED