Soetanto, Ex parte; Re Min for Immigration and Multicultural Affairs & Ors S86/1999 [1999] HCATrans 338 (21 September 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S86 of 1999

In the matter of -

An application for Writs of Certiorari, Prohibition and Mandamus and an Injunction against PHILIP RUDDOCK in his capacity as THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

and

JOHN BORDON sitting as the IMMIGRATION REVIEW TRIBUNAL

Second Respondent

STEVE KARAS in his capacity as Acting Principal Member of the IMMIGRATION REVIEW TRIBUNAL

Third Respondent

Ex parte -

PAULUS SOETANTO

Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 21 SEPTEMBER 1999, AT 9.43 AM

Copyright in the High Court of Australia

___________________

MR R.P.L LANCASTER: Your Honour, I appear for the applicant/prosecutor (instructed by Parish Patience)

MR G.T. JOHNSON: May it please your Honour, I appear for the respondents. (instructed by the Australian Government Solicitor)

MR LANCASTER: Your Honour, as I understand the position, the respondents consent to remitter subject to this question of extension of time in the application.

HIS HONOUR: Yes. I have had a look at your careful outline. Have you anything to say about that, Mr Johnson, about the needs for extension of time?

MR JOHNSON: We certainly agree that there is a need for the extension of time, your Honour, and we would respectfully submit to your Honour that it is not an appropriate case for there to be an abridgment. If your Honour is happy to look at the question of abridgment I, of course, am more than delighted to elaborate on that. Subject to that, your Honour, there is no impediment to remittal under section 44.

HIS HONOUR: Yes. Well, I would really have to deal with the question of abridgment here if it was opposed.

MR JOHNSON: We would ask your Honour to do that, yes.

HIS HONOUR: Yes, all right. Well, I will come back to that. Call the third matter.

AT 9.45 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.59 AM:

HIS HONOUR: Yes, Mr Lancaster.

MR LANCASTER: Thank you, your Honour.

HIS HONOUR: What I need to hear you on is the question of extension of time. If you get over that hurdle I think it is realistically accepted the matter will be remitted then to the Federal Court.

MR LANCASTER: Thank your Honour. Your Honour should have an affidavit of Nigel James Dobbie sworn 31 May 1999.

MR JOHNSON: No objection to that, your Honour.

HIS HONOUR: Just let me find it, gentlemen. This is Mr Dobbie's affidavit sworn 31 May and filed 7 June, is that the one?

MR LANCASTER: That is the one, your Honour. I do not read paragraph 18.

HIS HONOUR: Paragraph 18 is not read.

MR LANCASTER: The second affidavit is the affidavit of Paulus Soetanto sworn 17 September 1999.

MR JOHNSON: Again, your Honour, no objection for the purposes of this application.

HIS HONOUR: Yes. The affidavit of Paulus Soetanto sworn 17 September and filed that day. Yes, is that the affidavit material?

MR LANCASTER: Yes, your Honour. Your Honour has my outline of submissions.

HIS HONOUR: Yes, just sit down for a moment, Mr Lancaster, I will read the affidavits. You would be clearly out of time if you had started in the Federal Court, would you not?

MR LANCASTER: Yes, your Honour.

HIS HONOUR: Yes, Mr Lancaster.

MR LANCASTER: Your Honour, the matters relied upon by the applicant on the application for an extension are set out in my written submissions. In the applicant's submission the relevant limitation period as it applies to the relief sought in this Court is that contained in Order 55 rule 17 being, in our submission, the only - - -

HIS HONOUR: Just a minute. Yes, six months.

MR LANCASTER: Yes. So, your Honour - - -

HIS HONOUR: That is for certiorari and what is the other relief?

MR LANCASTER: The other relief sought is a writ of prohibition against the Minister. Order 55 does not, in my submission, impose a time period within which such an application need be brought. Part IV of Order 55 deals with prohibition. It does not have an equivalent, it appears, to rule 17. In my submission, the same obtains to the other relief sought in this Court, namely mandamus and an injunction against the principal member of the Tribunal.

Part III of Order 55 deals with mandamus and appears not to have an applicable equivalent to rule 17 also. Rule 30, in my submission, refers to a judicial tribunal and the submission would be that that two month time period is not an applicable time period to the relief sought of that nature in this Court. The alternative submission is even if that two month period is applicable in these proceedings we would rely on the same matters on the extension application.

HIS HONOUR: Yes. Do you have to say the Tribunal is not a judicial tribunal?

MR LANCASTER: Yes. Your Honour, the fact that - - -

HIS HONOUR: I hope I do not have to decide that question.

MR LANCASTER: That was the purpose of the alternative submission, your Honour.

HIS HONOUR: All right.

MR LANCASTER: Your Honour, there are two principal matters I would seek to address your Honour on. The first is the explanation proffered by the applicant for the delay. The second is the applicant's prospects of success on any appeal. In my submission, those are the two most significant matters of those matters listed by Justice McHugh in Gallo v Dawson. I have copies of that decision if your Honour - - -

HIS HONOUR: No, I know about that.

MR LANCASTER: In relation to the explanation, your Honour, if the application for certiorari was still within time, it should have been filed by the end of May 1997, so there is a period of a little over two years that requires explanation, the application in this Court being filed in early June this year. Mr Soetanto was told, his affidavit reveals, after the Tribunal decision that there is nothing that could be done because, in the words of his migration agent, all of the legal jurisdiction has been exhausted.

HIS HONOUR: Which paragraph is that?

MR LANCASTER: That is paragraph 5 of Mr Soetanto's affidavit. The deponent indicates that he believed that statement so he went back home. Mr Soetanto was disabused of that understanding of the way his appeal rights worked on 4 September 1998, as deposed to in paragraph 6 of the affidavit. It was indicated to him on that occasion that an appeal to the Federal Court could have been made within the 28 day period or an appeal to this Court could have brought or that there are various other courses of action that the applicant - - -

HIS HONOUR: Mr Dobbie had not been acting earlier, had he?

MR LANCASTER: No.

HIS HONOUR: When did he come into the matter?

MR LANCASTER: It is not clear from the evidence, but I would ask your Honour to infer that it is on 4 September 1997.

HIS HONOUR: Yes.

MR LANCASTER: Mr Dobbie advised the applicant of possible courses of action. The applicant took two of those, namely an application to the Minister under section 351 of the Migration Act 1903 and he joined in what is referred to in the affidavit as the ROSCO class action. Now, on my instructions, that class action is the proceedings the subject of the decision of the Full Court of the Federal Court in Macabenta which is referred to in my written outline. I can hand that decision to your Honour if your Honour wishes to look at it. The essence of it was that it was a challenge to a special category of visas granted to people of six nations and it was said that on behalf of the people represented in the class action that - - -

HIS HONOUR: It does not seem to have anything to do with your client, a very technical point as to the construction of what "trade" means.

MR LANCASTER: I accept that, your Honour. It is much more in the vein of the applicant attempting to get a visa to remain in Australia than a challenge to the Tribunal decision. On the other hand, the application to the Minister under section 351 was specifically directed at the Tribunal decision, that section giving the Minister power to - - -

HIS HONOUR: When was the application made to the Minister?

MR LANCASTER: The response letter from the Minister - - -

HIS HONOUR: December, was it? It was refused in December.

MR LANCASTER: It was refused in December. It was made - - -

HIS HONOUR: - - - in September, by the look of it, September 1997 and November 1998.

MR LANCASTER: Yes, there were two application letters, one in September 1997 and one in November 1998. Your Honour, in my submission, that evidence does go so high as to ground a submission that alternative remedies were sought to be available by the applicant from the time at which he was advised that he had certain rights in respect of the Tribunal decision. That determination of the Minister refusing the section 351 application was refused in December 1998. For what it is worth, the application was brought within six months of that time, of that notification. Your Honour, the other matter to which the applicant was, if I can use the expression, pinning his hopes, was the outcome of the ROSCO class action. Immediately before the special leave hearing in this Court, the application book in the original jurisdiction of the Court was filed, a premonition, perhaps, of what happened some 11 days later.

HIS HONOUR: Yes.

MR LANCASTER: Your Honour, that is the extent of my oral submissions on the explanation - - -

HIS HONOUR: Now if you were to succeed on what you are presently putting, you would then need some orders made here, would you not, before the matter was sent off, orders of a similar nature that have just been made in matter No 1?

MR LANCASTER: I will say yes without having seen those orders, your Honour.

HIS HONOUR: I will see what Mr Johnson says.

MR JOHNSON: With respect to the question of extension of time, could I just say to your Honour that my submissions will centre upon the length of the delay and what we contend to be the unacceptable or insufficient explanation for it. We do not take issue with the proposition that there are Federal Court decisions post-dating the one referred to by the Tribunal which take a more flexible view of the meaning of the word "trade". So, at least for the purposes of this application, we would have to agree that the application had arguable merit in that sense.

However, the application has been brought in this Court in June 1999, some 21/2 years after the IRT decision sought to be impugned. That is a very lengthy delay. In the matter of Gallo v Dawson, for instance, where Justice McHugh was talking about the extension of time for an appeal against a single Judge, he suggested that a case would need to be exceptional before the Court would enlarge by many months the time for filing an appeal. We simply suggest to your Honour that the length of the delay in this case does raise the hurdle somewhat higher. With respect to that, we note that although my friend contends that his client was pursuing alternative remedies, the fact is that he could equally be said to have been taking his chances.

The affidavit which the prosecutor has filed in this Court says that it was on 4 September 1997 that he learned that he could come to the High Court. It is evident that he chose to take another course or two other courses; firstly, the request to the Minister under section 351 and, secondly, he says, joining the ROSCO class action. In relation to section 351, that, of course, is not a provision which imposes any duty upon the Minister. It simply enables the Minister to take a particular course if he considers that to do so is in the public interest.

Similarly, the Macabenta action, at least as far as one can discern from the Full Court decision, is not really concerned with the error or otherwise of this Tribunal decision. So, your Honour, first of all we had a lengthy delay until 4 December 1997. Then the applicant finds out that he can come to the High Court but chooses not to do so, chooses to postpone coming here until the middle of 1999.

Even when he found out, according to his own affidavit, on 5 February 1999, from Mr Dobbie, that he could make realistic application to this Court, he still was not quick in bringing it. There is still quite a reasonable delay, your Honour, between 5 February 1999 and the date of actual filing here on 7 June 1999.

Now, your Honour, we do not dispute the proposition that in relation to certiorari, the time limit of six months applies and that the Court has power under Order 69 rule 6, in an appropriate case, to extend that. Nor do we contend that the Tribunal is a judicial one. It is a relevant consideration that if it were a judicial tribunal, then there would only be a two-month time limit applying. Also, your Honour, at least one member of the Federal Court, Justice Weinberg, in a matter which has gone back from this Court, called Pelekanakis - I do not think that your Honour needs to be troubled by the reference - seemed to accept that in that case that the time limits, prima facie, applied, although there was power to extend and refer to the one for mandamus as well as the one for certiorari, perhaps assuming it to be applicable in the case of an administrative tribunal with some quasi-judicial characteristics.

Be all that as it may, your Honour, we say that the fact that there is a two-month limit in relation to an application for mandamus from a judicial tribunal is perhaps a relevant background consideration in considering whether or not the significant delay here of more than six months can be excused. Your Honour, I think that is really all I have to say about the question of abridgment of time.

HIS HONOUR: Thank you, Mr Johnson.

MR JOHNSON: Sorry, I should mention, your Honour, section 478 of the Migration Act at all material times provided a 28 day time limit for the Part 8 remedy.

HIS HONOUR: Yes. That is 478?

MR JOHNSON: Yes, 478. We would say, your Honour, that the Court ought not lightly allow the prerogative writ procedure to, in effect, circumvent that time limit. Thank you, your Honour.

HIS HONOUR: Mr Lancaster.

MR LANCASTER: I was not going to, your Honour, but that last submission, in my submission, requires reply. Section 478 as it applies to the Federal Court should not, in my submission, be held to restrict this Court in its exercise of original jurisdiction conferred by the Constitution. The Rules provide for a six month period relevantly, and that is the period that should be examined for the purpose of the extension application, in my submission.

The only other matter, your Honour, was section 351. My friend submits that it imposes no duty on the Minister. However, there is a power under that section to substitute a decision of the Tribunal. Whether or not there was a duty to do so, the Minister did not reply in the negative until December 1998 which is much closer to the present day than the date of the Tribunal decision.

Your Honour, Gallo v Dawson set out a principle that justice to the applicant would be the primary consideration of the Court in matters of this nature. The respondents concede that there is merit in the substance of the application. In my submission, the Court should grant an extension.

HIS HONOUR: Yes, thank you.

Order 55 rule 17 would, in the present case, have fixed a six month period for the commencement of proceedings seeking certiorari in this Court. Order 55 rule 30 fixes a period of two months in respect of mandamus where a judicial tribunal is involved. The body here is the Immigration Review Tribunal which probably is not, I think, a judicial tribunal within this meaning of Order 55 rule 30.

However, counsel for the respondent points out that the existence of the provision is a pointer to the exercise of discretion that in any event applies to the refusal of relief where the applicant has delayed approaching the Court under section 75(v) of the Constitution. The delay in this case is a very significant one. The date of the Immigration Review Tribunal decision is 29 November 1996. At all material times, the time for access to the Federal Court would have been 28 days in accordance with section 478 of the Migration Act.

The applicant's delay is sought to be explained first by the inaccurate advice he was given by a migration agent, then retained by him, and secondly to his pursuit of other avenues of redress, in particular, an attempt to have the Minister substitute a decision under section 351 of the Act and the joining by the applicant in a class action in the Federal Court. This ultimately was unsuccessful and, in any event, as appears from the materials before me, did not focus upon his particular complaint. His particular complaint turns upon the expression "trade qualification" in the relevant regulation.

The applicant complains that the matter was approached in the Tribunal on the basis of authority as it then stood in the Federal Court but from which the Federal Court has since departed and departed in a fashion which assists his position.

The respondent does not dispute that there is a ground of some substance for the application if the applicant were to overcome the hurdle of delay. The matter is one very close to the line but having given the best consideration I can to the facts as they appear from the affidavits of the applicant, sworn 17 September 1999, and from his present solicitor, Mr Dobbie, sworn 31 May 1999 and filed on 7 June 1999, I think there is sufficient to enliven an exercise of discretion in favour of the applicant for relief. To put it more accurately, the circumstances are not such as to disqualify, at this stage, the applicant from pursuing the remedy he seeks.

I think the matter is best dealt with by my making such orders for an extension as are needed in the light of the Rules, in particular, in the light of Order 55 rule 17, and then granting an order nisi and making consequential orders for the matter to be remitted to the Federal Court under section 44 of the Judiciary Act. So, I will stand the matter over for that purpose.

AT 10.26 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.48 AM:

HIS HONOUR: Do you need some more time, gentlemen?

MR LANCASTER: No.

MR JOHNSON: No, I think we are right, thank you, your Honour. Your Honour, there is some more of my handwriting for you. I wonder if your Honour would mind if I just read this aloud first to make sure that we have all the same thing noted and then I will hand it to your Honour.

HIS HONOUR: Yes, of course.

MR JOHNSON: What we propose, your Honour, is as follows:

By consent, the Court orders -

(1) The time for commencing this application be extended until the date of filing.

(2) The respondent show cause, on a date to be fixed, why a writ of certiorari should not be issued directed to the second respondent removing into this Court to be quashed the decision of the second respondent and why a writ of mandamus ought not be issued, directed to the principal member of the Migration Review Tribunal to hear and determine the prosecutor's application for review of the decision to refuse him a Class 816 entry permit or a Class 818 entry permit according to law.

(3) The matter be otherwise remitted to the Federal Court of Australia under section 44 of the Judiciary Act.

(4) Certify this is a proper matter for the attendance of counsel.

HIS HONOUR: What was the penultimate order?

MR JOHNSON: The penultimate order, that the matter be otherwise remitted to the Federal Court of Australia under section 44 of the Judiciary Act 1998 .

HIS HONOUR: Yes. Should it say New South Wales District Registry?

MR JOHNSON: Thank you, your Honour.

HIS HONOUR: It helps if it has an address to go to.

MR JOHNSON: Perhaps if I just add at the end:

, New South Wales District Registry, Queen's Square, Sydney.

HIS HONOUR: Yes.

MR JOHNSON: And just mark that those last-mentioned words occur immediately after "Federal Court of Australia". That makes it a little untidier than it was. If I can just hand that to your Honour so that your Honour can see it.

I should also mention to your Honour something about the mention of that new body, the Migration Review Tribunal. It, of course, is not presently named as a respondent. We do not think that it needs to be. Under the Migration Legislation Amendment Act (No 1), No 113 of 1998 - I hand to your Honour my copy.

HIS HONOUR: Is that proclaimed - No 113 of 1998?

MR JOHNSON: Yes, your Honour. It was the Migration Legislation Amendment Act (No 1) 1998, and it was Act No 113 of 1998. It was the provision, your Honour, which introduced all of the recent amendments which, amongst other things, created this new Migration Review Tribunal. There is a provision there, section 42(2), which I have flagged. I will hand to your Honour this in a moment. But it provides that:

For the purposes of Part 5 of the Migration Act 1958 as amended by this Act, if:

(a) after the commencement of this Schedule, a decision made before that commencement under section 349 of the Migration Act 1958 is quashed or set aside by a court; and

(b) the matter to which the decision under that section relates was referred by the court for further consideration;

the decision under that section is taken, on and after the day of the referral, to be an MRT-reviewable decision in respect of which an application under section 347 of the Migration Act 1958 as amended by this Act was made on that day.

So, what that means, your Honour, is that if it was sent back - if the IRT - - -

HIS HONOUR: If it was quashed and sent back, it would go to the new body.

MR JOHNSON: That is right. Would your Honour like to have a look at that section?

HIS HONOUR: Yes, thank you.

MR JOHNSON: It is the one that I have marked in pink.

HIS HONOUR: Yes, I see. But that would just be a matter for the Federal Court to take on board if and when it made an order.

MR JOHNSON: Yes, thank you, your Honour. My instructor also points out to me, quite properly, that strictly speaking the orders are not by consent or, at least, the first couple are not.

HIS HONOUR: Yes, they are not.

MR JOHNSON: So, if I could just ask your Honour to delete those words "by consent".

HIS HONOUR: I think that is right, yes. Now, does what Mr Johnson read out, Mr Lancaster, meet your understanding?

MR LANCASTER: Yes, your Honour, and I do make a formal application for costs.

HIS HONOUR: I think we had better see what happens to you eventually in the Federal Court before you get any costs.

MR LANCASTER: Yes, your Honour.

HIS HONOUR: Is order (2) appropriate if - it is awkward, is it not? The order nisi calls for the application for the order absolute to be made here. Do you see what I mean? It says, "directed to the second respondent removing into this Court", you see.

MR JOHNSON: Yes. Sorry, your Honour, yes, that is correct. Can it be overcome, your Honour, by, instead of saying, "into this Court", "removing into the Federal Court of Australia"?

HIS HONOUR: Yes, I think that is probably right.

MR JOHNSON: I should say, your Honour, that there have been - - -

HIS HONOUR: The orders have been made in this form though, have they not, in the past?

MR JOHNSON: I think they have been, your Honour, probably on the basis that this Court makes the order nisi and then, having done so - - -

HIS HONOUR: Yes, that is what Justice Gaudron has done.

MR JOHNSON: - - - remits it.

HIS HONOUR: I think that is right. So long as it is understood that that is what is the effect of order (3). "The matter, including the return of the order nisi", that will do it, I think.

MR JOHNSON: Yes. So that order (2) would remain unchanged, your Honour?

HIS HONOUR: Yes, and order (3) would be:

The matter "including the return of the -

"orders nisi", I suppose -

orders nisi be otherwise remitted to the Federal Court of Australia, New South Wales District Registry, under section 44 of the Judiciary Act 1903 ."

MR JOHNSON: Yes. Yes, thank you, your Honour. I might just note there have been some conflicting decisions of the Federal Court as to whether or not, when the matter goes back, the appropriate relief there is the old form of prerogative writ or whether they should grant relief in terms of section 485. But this is not a case, it seems to us, where that could make any practical difference.

HIS HONOUR: No.

MR JOHNSON: At the end of the day I am sure my friend would be content, if he succeeded before the Federal Court, with an order simply setting aside the decision and sending it back to the Tribunal for rehearing according to law.

HIS HONOUR: Yes. All right, I will read out the short minutes which, as indicated, are not made by consent but I do make them:

(1) Order that the time for commencing this application be extended until the date of filing.

(2) Order that the respondents show cause, on a date to be fixed, why a writ of certiorari should not be issued directed to the second respondent, removing into this Court to be quashed the decision of the second respondent and why a writ of mandamus ought not be issued directed to the principal member of the Migration Review Tribunal to hear and determine the prosecutor's application for a review of the decision to refuse him a Class 816 entry permit or a Class 818 entry permit, according to law.

(3) Order that the matter, including the return of the orders nisi, be otherwise remitted to the Federal Court of Australia, New South Wales District Registry under section 44 of the Judiciary Act 1903 .

(4) Certify that this is a proper matter for the attention of counsel.

(5) Costs in this Court be costs in the Federal Court of Australia.

MR JOHNSON: If your Honour pleases.

MR LANCASTER: If the Court pleases.

HIS HONOUR: Is there anything else?

MR JOHNSON: No, your Honour.

MR LANCASTER: No, your Honour.

HIS HONOUR: I will now adjourn.

AT 10.59 AM THE MATTER WAS CONCLUDED