Sidhu Ex parte: Holmes and ANOR S153/1998 [1999] HCATrans 112 (23 April 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S153 of 1998

In the matter of -

An application for Writs of Prohibition, Certiorari and Mandamus against MARGRET HOLMES

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte -

DARSHAN SINGH SIDHU

Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 23 APRIL 1999, AT 9.31 AM

Copyright in the High Court of Australia

MR M.J. LAWLER: May it please the Court, I appear for the applicant. (instructed by Dianne Burn & Yvonne Swift)

MR S.J. GAGELER: If your Honour pleases, I seek leave to appear for the Minister for Immigration and Multicultural Affairs. (instructed by the Australian Government Solicitor)

HIS HONOUR: Yes. Strictly, it is an ex parte matter, I suppose.

MR GAGELER: Yes.

MR LAWLER: Leave is not opposed, your Honour.

HIS HONOUR: Yes. Well, that leave is granted. I should note I have been informed by the Deputy Registrar that the first respondent who constituted the Tribunal in this matter does not wish to be represented at the hearing of the application and will submit to any order of the Court save as to costs. Yes, Mr Lawler.

MR LAWLER: In accordance with Practice Note 1, could I hand up an outline of submissions. I have given a copy to my friend.

HIS HONOUR: Yes. Have you a copy, Mr Gageler?

MR GAGELER: Yes, your Honour. Of Mr Lawler's submissions, yes.

HIS HONOUR: Yes. Before we get to that, we will have to work out what is the future of this piece of litigation.

MR LAWLER: Your Honour, could I say I have had a discussion with my friend about it and ground 6 might compendiously be described as an Eshutu ground. My application is to stand this matter over until after the Full Court's decision in Eshutu was handed down.

HIS HONOUR: Yes. Let me just have a look at your draft order nisi.

MR LAWLER: Your Honour, I should say I do not press ground 2 or ground 5(a).

HIS HONOUR: So, the only natural justice point, as such, is 5(b), is that right?

MR LAWLER: Yes, your Honour. Your Honour, I have only left it there on the basis that the argument might develop in a particular way but I do not have any great expectation that that is where the argument of the case will centre essentially.

HIS HONOUR: No. Well, I have read the file and that would be my impression at this stage. Have you both got copies of the Migration Act?

MR LAWLER: I am embarrassed, your Honour.

MR GAGELER: I will share.

HIS HONOUR: I think you should, yes. Now, I just want to be sure as to the statutory foundation for all of this. Now, it started off under section 65, did it not? In particular, there was an "application for a visa" and:

(a) if satisfied that

.....

(ii) the other criteria for it prescribed by this Act.....have been satisfied.

If satisfied of that, the Minister was obliged to grant the visa. The relevant other criteria is section 36. That is how it works, is it not, for this case?

MR GAGELER: Your Honour goes from section 36 to the Migration Regulations themselves and in the Migration Regulations, the relevant regulations being Migration Regulations 1994, there is a subclass 866.

HIS HONOUR: Yes, which is - - -?

MR GAGELER: Protection visas. The Minister must be:

satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.

HIS HONOUR: Yes, that is right. That flows from section 36, does it not?

MR GAGELER: Yes. Section 36 really requires there to be regulations in that form, yes.

HIS HONOUR: The regulation does not seek to go beyond section 36 really, it is just - - -

MR GAGELER: No, that is right.

HIS HONOUR: Now, it seems to me that if the Minister was satisfied that your client did answer the criterion, the Minister was obliged to grant the visa and, if not so satisfied, he was obliged to refuse it.

MR LAWLER: Correct, your Honour.

HIS HONOUR: So, it does not seem to me that he was exercising a discretionary power. Let me put it to you the next step: if he was not exercising a discretionary power, I do not see what Wednesbury unreasonableness, which seems to be your ground 1 - - -

MR LAWLER: Ground 1, your Honour.

HIS HONOUR: - - - is in these sort of cases. There may be a question as to whether the Minister should have been satisfied the criterion was met.

MR LAWLER: Your Honour, I would invoke the dictum of Sir Owen Dixon Avon Downs Pty Ltd v Federal Commissioner of Taxation which was approved by the majority in Guo as encompassing the relevant law and, in my submission, that relevant passage, which is set out in paragraph 6 of the outline of submissions, is, for practical purposes, on all fours with the statutory regime that applies in the present case.

HIS HONOUR: It was a different statutory regime, was it not?

MR LAWLER: Your Honour, at the end of the day, it was the Commissioner's satisfaction that was the relevant matter which appears from the first line of the quote.

HIS HONOUR: Yes, that is right. That is not a Wednesbury unreasonableness case.

MR LAWLER: Your Honour, the underlying - - -

HIS HONOUR: What I am seeking to get to you is this construction of section 65 which was not construed in that case. Is not the situation that the criterion is a condition upon satisfaction of which a duty arises: a duty to grant or a duty to refuse?

MR LAWLER: Yes.

HIS HONOUR: That seems to me the situation. That is not the area of Wednesbury unreasonableness discussion.

MR LAWLER: Your Honour, I am embarrassed to this extent: I am not sufficiently - - -

HIS HONOUR: I am not seeking to resolve anything at the moment.

MR LAWLER: I am not sufficiently familiar with the authorities to be able to take up that point with your Honour but, in my submission - - -

HIS HONOUR: And this question of whether he is satisfied or not, it seems to me that is the sort of case - well, there is a number of them in administrative law, I suppose. Buck v Bavone 135 CLR 118, is one, a decision of Sir Harry Gibbs, which I think, in fact, is quoted in one of the earlier authorities in this Court, and also a decision, particularly in Justice Brennan's judgment in Foley v Padley [1984] HCA 50; 154 CLR 349 at - well, in various places but principally in the judgment of Sir Gerard Brennan. What I am really suggesting to you is that ground 1 may not be the strongest reed. It may be that in reaching the satisfaction there are questions of fact to be taken into account and there is a question about the extent to which that is investigated and so on and so forth, but merely to say Wednesbury unreasonableness I do not think matters at this stage.

What all that comes to, I think, maybe, if we go to section 476(2). The only grounds of the grounds you are urging which you would be shut out from in the Federal Court would be natural justice which is that reduced ground you mentioned this morning and (2)(b) which is what we have just been talking about. Now, if that is right - - -

MR LAWLER: Your Honour, 2(b) or ground 1?

HIS HONOUR: Section 476(2)(b), you see.

MR LAWLER: Yes, your Honour. I think, your Honour, there are additional problems. First of all, the same fundamental argument can be advanced or characterised as either a Wednesbury unreasonableness argument, subject to your Honour's observations about it not being a discretionary matter, a constructive error of law or a failure to take into account relevant considerations.

HIS HONOUR: Indeed. You may well be right about that.

MR LAWLER: The problem with the error of law as I would perceive it, apprehending that your Honour has in mind suggesting that the matter be remitted to the Federal Court, is that there is a qualification of the definition of an error of law which, I think, would exclude the genus of error that I would be seeking to argue before your Honour.

HIS HONOUR: Whereabouts is the exclusion? Can you find that?

MR LAWLER: Your Honour, it is in the qualifying words in paragraph (e):

being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.

That is in section 476(1)

HIS HONOUR: That is a pretty generous ground. I think it removes what might have been otherwise thought to be restrictions, actually.

MR LAWLER: Thank you, your Honour.

HIS HONOUR: Is that not right, Mr Gageler?

MR GAGELER: I do not read it narrowly, your Honour.

HIS HONOUR: No, I do not either. So, that being so, if one then goes to section - - -

MR LAWLER: Then, your Honour, so far as any relevant considerations are concerned, I think there are potential problems in 476(3), in particular (c), "an exercise of a discretionary" - - -

HIS HONOUR: Well, we are not in (1)(d). Subsection (3)(a) is a fraud on the power type argument, really:

an exercise of a power for a purpose other than a purpose for which the power is conferred.

MR LAWLER: Yes.

HIS HONOUR: I do not think you are suggesting any ulterior activity by the Tribunal or the Delegate.

MR LAWLER: No, your Honour, but I think the reality is - (1)(d) is the primary ground.

HIS HONOUR: Yes, that is right.

MR LAWLER: And (3)(d) is an exclusion which would prevent us from raising the alternative way of constructing a legal argument, based on the substantive matters which are set forth in paragraph 8 of Ms Burn's affidavit.

Your Honour, may I say I have indicated to my friend already that to the extent that there are any portions of this which can be dealt with by the Federal Court, of course, we would be delighted to have it remitted to the Federal Court and not trouble this Court.

HIS HONOUR: I think that is what I should do. I just want to be confident that there is some real substance in it to send to the Federal Court; that there are grounds there that you can really debate about, so that it will not be a futile activity for you.

MR LAWLER: Yes, your Honour.

HIS HONOUR: It seems to me there probably are, given (e) and (g) too.

MR LAWLER: And I think (f). Your Honour would be aware of - - -

HIS HONOUR: Well, (g) is expanded or contracted by (4).

MR LAWLER: Yes.

HIS HONOUR: What I am trying to put to you is that in so far as we are talking about the Minister's satisfaction as to your client's status as a condition for the exercise of the power which is to say yes or no, in so far as you are investigating the Minister's satisfaction, it seems to me that maybe cases like Foley v Padley really get you to subsection (4), that they are the sort of investigations that go on in the course of investigating the reasonableness of the satisfaction. I may be wrong about that. You may have some ground there.

MR LAWLER: In any event, your Honour, I can see ways in which the error of law provision can be constructed, having regard particularly to what Sir Anthony Mason said in Bond .....that would make it not a futile exercise.

HIS HONOUR: Yes, that is right. Now, maybe you need leave to reformulate your grounds, but that could be done in the Federal Court. And, at the moment, you have your Eshetu grounds too.

MR LAWLER: Yes, although, as I understand it from those who were present at the hearing - - -

HIS HONOUR: But that will rise or fall according to the outcome of the case here. There is no reason not to remit it all now in so far as it can be remitted. At the moment the Eshetu part can be remitted.

Now, one then goes to 485(3), I suppose. The effect of that is if I remit under section 44 of the Judiciary Act this application, which is under the Constitution, the Federal Court does not get any wider area than it would have if you had gone there in the first place. That is the substance of it, is it not, Mr Gageler?

MR GAGELER: Yes, your Honour.

HIS HONOUR: So, we then go to section 44 of the Judiciary Act. Have counsel got that? Section 44(2A) - we have the Minister as a party, have we not? Yes. It seems I can remit so much of the matter as complies with 486(3), if that makes sense.

MR LAWLER: Yes, your Honour. Your Honour, might have to grant us leave to reformulate the grounds.

HIS HONOUR: Once you get in the Federal Court.

MR LAWLER: I am just wondering whether it is perhaps preferable to have the reformulation done - - -

HIS HONOUR: Your might be right about that. What should I do? Should I adjourn this to one day next week. How are you placed, Mr Gageler?

MR LAWLER: Could your Honour perhaps, just as a practical suggestion, dispose of it today. If your Honour gave us leave to reformulate within, say, seven days and then made an order remitting in 14 days.

HIS HONOUR: I like to have real people in front of me when I am doing these things.

MR GAGELER: Your Honour could do it two ways. One way is my friend could reformulate his claim and then your Honour could remit parts of the claim identified by paragraphs. The other way is your Honour could identify the part remitted by reference to so much of the proceedings as can be dealt with.

HIS HONOUR: Yes. I would like to make it specific. I think it helps the Federal Court if it is specific. So, I think you should reformulate.

MR LAWLER: Yes, your Honour.

HIS HONOUR: Now, can you do that in the course of the day or do you need some time?

MR LAWLER: No, I could do that during the course of the day, your Honour.

HIS HONOUR: How are you placed for the rest of the day, Mr Gageler?

MR GAGELER: I have set aside the day for this, your Honour.

MR LAWLER: Your Honour, having said that, I do not profess to be an expert and having regard to the personal consequences of my client, perhaps the prudent course, if your Honour is in Sydney next week, is for me to ensure that I have dotted my i's and crossed my t's because I think it will involve some reading.

HIS HONOUR: Yes, I am aware of the constraints on your side of the record as to legal representation and costs and so forth.

MR LAWLER: Your Honour, I am not so much concerned about that. I am concerned about doing a proper job.

HIS HONOUR: I know. The job can only be done once.

MR LAWLER: And I have some reading to do.

HIS HONOUR: Yes, I understand that. How are you placed next week, Mr Gageler?

MR GAGELER: Your Honour, I cannot tell you exactly but I know that I am in Melbourne on Tuesday. I believe I am here on Wednesday.

HIS HONOUR: Well, I am just thinking of one morning at 9.30, that is all. It will not take long.

MR GAGELER: Well, certainly I will be here Wednesday.

HIS HONOUR: Would you like to check your diary.

MR GAGELER: If your Honour does not mind, yes.

HIS HONOUR: Yes. Well, I will adjourn for five minutes.

AT 9.53 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.00 AM:

HIS HONOUR: Yes, Mr Gageler?

MR GAGELER: Your Honour, either Wednesday or Thursday would suit me.

HIS HONOUR: What is your position, Mr Lawler?

MR LAWLER: Either day is suitable, your Honour.

HIS HONOUR: Either Wednesday or Thursday?

MR LAWLER: Either day, your Honour.

HIS HONOUR: We will say Wednesday at 9.30. Are either of you in court later that morning?

MR LAWLER: No, your Honour.

MR GAGELER: I am engaged, your Honour, in some conference during the day. It is a public conference on civil rights or something like that.

HIS HONOUR: We have real ones here. I think 9.30 is probably the best time.

MR LAWLER: I invite your Honour to make a direction to require the applicant to file the amended draft order in the Registry?

HIS HONOUR: No, just bring it up with you and show it to Mr Gageler before, that is all.

MR LAWLER: Thank you, your Honour.

HIS HONOUR: You will note that in Foley v Padley there is reference by Justice Brennan to the Bellbird Collieries Case [1944] HCA 42; 69 CLR 407. That might be worth having a look at too.

MR LAWLER: Thank you, your Honour.

HIS HONOUR: I simply then adjourn the application to Wednesday next, 28 April at 9.30. Is there anything else that has to be done at the moment? I do not think so.

MR GAGELER: Does your Honour need to certify for counsel?

HIS HONOUR: Well, I will do that next week. Just do not let me forget. I will now adjourn.

AT 10.02 AM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY 28 APRIL 1999