Zhou, Ex parte; Re Min for Immigration and Multicultural Affairs & Anor S73/1999 [1999] HCATrans 340 (21 September 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S73 of 1999

In the matter of -

An application for Writs of Certiorari, Prohibition, Mandamus and Habeas Corpus, injunction and declaration against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

and

ARVA PASSAMANI (QSBS Task Force)

Second Respondent

Ex parte -

MIN ZHEN ZHOU

Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 21 SEPTEMBER 1999, AT 9.45 AM

Copyright in the High Court of Australia

MR L.Y. MA: I appear for the prosecutor. (instructed by Ma & Company)

MR N.J. WILLIAMS: May it please, your Honour, I appear with MR P. McGUIRE. (instructed by the Australian Government Solicitor)

MR MA: Before your Honour there is an application for an order nisi. This matter has a wide implication.

HIS HONOUR: It may have, but at the moment - have you seen Mr Williams' outline of submissions?

MR MA: I do. I do have submissions in relation to that. With respect to point 3 of the submission, the prosecutor disagree with that.

HIS HONOUR: Well, you may disagree with it. The first thing I want to know is what does Wednesbury unreasonableness have to do with this case. That is to say, looking at the grounds in your amended draft application, looking at grounds 1(a) and 2(d), what can they have to do with this case?

MR MA: As your Honour - - -

HIS HONOUR: Have you read the decision of the Court in Eshetu?

MR MA: Yes, I do.

HIS HONOUR: Have you read my judgment in that case?

MR MA: I did.

HIS HONOUR: Well, having that in mind, what does Wednesbury unreasonableness have to do with these sections?

MR MA: My understanding of the decision in Eshetu is that the High Court would have unlimited jurisdiction with respect to the ground of reviews.

HIS HONOUR: You have not read it properly if that is what you think Eshetu decides. The determinative section - - -

MR MA: In my submission - - -

HIS HONOUR: Just listen to me for a minute - is section 65, is it not, of the Migration Act? If various criteria are satisfied, a visa has to be granted. If they are not satisfied, a visa must not be granted. That is not a discretion.

MR MA: Your Honour, my understanding of Eshetu is that there is a dissenting judgment of Gaudron and Kirby - - -

HIS HONOUR: Justices Gaudron and Kirby to you.

MR MA: Yes, Justices Gaudron and Kirby to the effect that unreasonableness is a ground of review, but that is a dissenting judgment of their Honours. Justice Hayne expressed no view with respect to whether unreasonableness is still a ground of review. That may be an issue which the High Court may want to deliberate further.

HIS HONOUR: What do you mean by ground 2(c) in the amended application, "acted without evidence"? Where does that come from?

MR MA: Yes, that in itself does not.....and I agree to that and I seek leave to amend to the effect that the - to add the words "the second respondent acted in ignorance of the evidence with respect to the position description".

HIS HONOUR: What is the ground of review when you use the phrase "acted without evidence"?

MR MA: When the prosecutor says "acted without evidence" it alleges that the decision-maker has not taken into account consideration or evidence of the position description or the position or the nomination and followed by the recommendation by the visa officer.

HIS HONOUR: You have to frame it in terms of law if you are going to get anywhere at the moment. Now, I understand ground (a), I understand ground (d) though it may not have any substance, but I understand it in terms of a legal formulation. What is (c) saying? There may be a legal ground in there but I just want to know what it is. Does it go to jurisdiction? Are you saying without any evidence? And what does "evidence" mean? This is an administrative decision. Administrators act on material. Courts have evidence.

MR MA: Yes. I refer to the affidavit of the prosecutor, the second affidavit if I can so refer. It is the affidavit, annexure marked MZZ3. That is the petitioner's proposal which came before the visa officer as well as the decision-maker.

HIS HONOUR: I am afraid if you come here to this Court, I expect better understanding of the principles of administrative law.

MR MA: I apologise for that, your Honour.

HIS HONOUR: Do you say this ground "acted without evidence" is inside or outside the exclusions in section 476? In other words, can this ground be a ground that could be dealt with by the Federal Court?

MR MA: It probably comes within section 476 and it is not within the jurisdiction of the Federal Court.

HIS HONOUR: Well, whereabouts in section 476?

MR MA: If you can just bear with me, your Honour. I do not have a copy of 476, your Honour.

HIS HONOUR: It is a fairly vital provision.

MR MA: I can see that that may probably fall within subparagraph 476(1)(g).

HIS HONOUR: Yes, but that it not what you have said, you see. That is not the words that you have used. You have said "acted without evidence". Do you want further to amend to reflect the language of (g)?

MR MA: I did want to further amend. If this matter is referred to a Full Court, I also seek leave to further amend and seek further advice with respect to the amendment of paragraph (c) and paragraph (d). I have amended paragraph (d) just in the morning and I would seek leave to further amend paragraph (c) on the grounds of acting with no evidence or with no evidence.

HIS HONOUR: Well, the words are "no evidence or other material to justify the making of the decision", are they not? It is clear though, is it, you say that ground 1(a) and 2(d) could not be dealt with in the Federal Court? That is the Wednesbury unreasonableness ground.

MR MA: Yes, that could not be dealt with by the Federal Court under section 476. If I can draw your Honour's attention - - -

HIS HONOUR: But why should I not remit the balance of the application to the Federal Court?

MR MA: Since unreasonableness has been excluded as a ground of review, ground 1(a) could not go in.

HIS HONOUR: No, no, you are not attending to what I am saying to you. Why should the Court not make an order remitting so much of the application as does not involve Wednesbury unreasonableness, which can only be dealt with here, remitting the balance of the application to the Federal Court?

MR MA: Certainly, your Honour is within jurisdiction to so remit.

HIS HONOUR: Yes, all right. Well, I will see what Mr Williams says about that in a minute. I think he will say the application is bound to fail in any event.

Call matter No 1 again.

AT 9.56 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 10.26 AM:

HIS HONOUR: Yes, Mr Williams.

MR WILLIAMS: Yes, thank you, your Honour. Your Honour, the application is misconceived and should be dismissed. We have developed some grounds to that effect in the written submissions, but if I could make one additional submission which is shorter in form. The entire focus of the application, your Honour, is upon the recommendation. Ground 1 attacks the recommendation directly. Ground 2 attacks it indirectly. But both the grounds as particularised - - -

HIS HONOUR: Is there a problem with delay in this one too?

MR WILLIAMS: There is but a small problem, your Honour, and that is in respect of mandamus. The prosecutor is out of time for mandamus. If your Honour were otherwise satisfied, that is a matter that need not trouble, your Honour, the extension of time in respect of mandamus.

The focus of both the grounds is upon the recommendation but the insurmountable obstacle for the prosecutor in such an approach is that there is no evidence that the decision-maker, the second respondent delegate, took any notice whatever of the recommendation. This is not a case in which the recommendation was a statutory recommendation, a case such as Hot Holdings v Creasy or Banks v Transport Regulation Board where there was a statutory provision for a recommendation, nor is it a case in which the decision-maker has simply annotated a recommendation as approved or adopted the recommendation. The decision-maker has applied his mind independently and has reached the decision upon differently articulated grounds - - -

HIS HONOUR: You may be right about all of this. I can see the force of it. But why should I not remit it to the Federal Court so that they can make this decision and any appeal can be taken to the Full Court of the Federal Court rather than take up the time of three or five Judges of this Court?

MR WILLIAMS: Your Honour, we say that a preliminary question arises whether your Honour should make the order nisi in any event.

HIS HONOUR: Yes. I was not going to make an order nisi.

MR WILLIAMS: Well, your Honour could and, in our respectful submission, should simply just dismiss the application.

HIS HONOUR: I was going to remit the application for the order nisi.

MR WILLIAMS: To the Federal Court?

HIS HONOUR: Yes.

MR WILLIAMS: Well, your Honour, we would say, simply, that your Honour should not do that because the application is so patently without merit. There have been other cases in this Court in which that approach has been followed.

HIS HONOUR: Yes, I know.

MR WILLIAMS: I need not trouble your Honour at any length as to the grounds but - - -

HIS HONOUR: Well, Wednesbury unreasonableness would appear to be hopeless.

MR WILLIAMS: Yes, as, indeed, are the relevant consideration grounds and they, likewise, are grounds that could not be remitted to the Federal Court.

HIS HONOUR: Yes. Can we just go through the amended draft orders from that viewpoint: 1(a) - have you the amended draft?

MR WILLIAMS: I have, your Honour. Well, 1(a) is unreasonableness that your Honour has referred to. Ground 1(b) "erred in law". Ground 1(b) is the only ground that could be remitted to the Federal Court. We would say that your Honour should not remit it because it merely concerns a recommendation but that is a different - - -

HIS HONOUR: What about 2(c)?

MR WILLIAMS: Well, 2(c), is, at least in the application, articulated in terms of the relevant considerations but I understood my friend to amend this morning. But the application, as formulated, puts the "no evidence" ground as a general law, "error of law, no evidence ground", rather than one of the specific "acting without material or evidence" as articulated in the Judicial Review Act and the Migration Act.

If it were properly articulated, as with the Judicial Review Act, it would be necessary to formulate the precise matters and, in terms of a decision such as this, it is difficult to see how there could be any such formulation. The decision-maker, on proper analysis, has simply failed to be satisfied on the material before him of the matters that are referred to in the statutory criteria. It is difficult to see within such an approach how there is any room for the "no evidence" grounds as articulated either at general law or in the Migration Act.

HIS HONOUR: Yes.

MR WILLIAMS: So, even if they be re-formulated, they have that difficulty. Of course, the "error of law" grounds in 2(a), although articulated as "error of law" in the ground itself, are particularised as relevant consideration grounds. So, of the entirety of the grounds, there is only one that can be remitted, in our respectful submission.

HIS HONOUR: That is 1 - - -?

MR WILLIAMS: It is 1(b). First, that is without merit because it concerns merely a recommendation but it is also without merit because it is a complete, with respect, misstatement of the actual terms of the decision.

HIS HONOUR: Well, I think the Federal Court can strike that out.

MR WILLIAMS: May it please the Court. Our submission would simply be that your Honour can dispose of the matter economically today.

HIS HONOUR: Yes, all right.

MR WILLIAMS: And we need not develop them beyond that.

HIS HONOUR: What is the answer to all of that? In particular, Mr Williams says that, looking at 2(a) for example, what is really done in 2(a), although the label "erred in law" is used - the label error of law is used, it is really discretionary considerations question. In other words, it is "irrelevant considerations" and so on?

MR MA: Yes, your Honour, section 476(3)(d).

HIS HONOUR: That is right. So, that will be out, would it not? Out in the Federal Court?

MR MA: Of the Federal Court and it is only reviewable by the High Court.

HIS HONOUR: Yes. I think you have to take a realistic look at this application, I am afraid. It does not have much in it.

MR MA: Yes.

HIS HONOUR: Now, have you seen Mr Williams' outline?

MR MA: I did. Yes, I have received that yesterday.

HIS HONOUR: All right. Anyhow, you wish to amend ground 2(c)? What has happened to 2(b)?

MR MA: It is missing. I guess there is some typographical errors there. It should be 2(b), your Honour; "acted without evidence" should be 2(b).

HIS HONOUR: I see.

MR MA: The best I can add is the second respondent has no evidence before him to conclude that the nomination will not benefit Australia by bringing new or improved business skills. That would be my position at the moment.

HIS HONOUR: I am not here to exercise stenographic skills. Have you reformulated this in some way?

MR MA: Yes, I will say that the second respondent has no evidence before him to conclude that the nomination will not benefit Australia by bringing new and improved business skills.

HIS HONOUR: Well, that does not fit within the section either, does it? How does that fit within 476(1)(g)? I think what I will do, I will simply make an order under section 44 remitting ground 1(b), and you will have to take your fortunes in the Federal Court, depending on your lack of success or failure on 1(b) and if the matter comes back here, at the moment I do not think you would succeed on any of the other grounds. Just sit down for a minute, gentlemen.

What I propose:

(1) To the extent that it is necessary, order under Order 55 rule 30 that the applicant have leave to apply for an order for mandamus against the first respondent, notwithstanding his delay.

(2) Order that that part of the application that seeks relief on ground 1(b) of the amended draft orders, initialled by me and placed with the papers, be remitted to the Federal Court of Australia, New South Wales District Registry.

(3) Certify for counsel.

(4) Costs in the Federal Court be costs of today in the High Court.

Is there anything else, gentlemen?

MR MA: Yes, your Honour, an order that the prosecutor not to be removed from Australia until final determination of the Federal Court.

HIS HONOUR: Where is the threat to do that?

MR MA: Sorry, your Honour?

HIS HONOUR: Where is the threat to do that?

MR MA: The prosecutor is currently under a bridging visa.

HIS HONOUR: Where is the evidence of the threat to do that, to seek an injunction against the Minister? Courts just do not go around granting injunctions against ministers. If you have any evidence of a threat, you can approach the Federal Court. You should not make that sort of application at this stage of this proceeding in that fashion. Now, is there anything else?

MR MA: Yes, your Honour. This matter has caused wide publicity in the community and if the Court can make an order that the prosecutor's name not be published.

HIS HONOUR: Why?

MR MA: Or otherwise published as an abbreviation.

HIS HONOUR: Why?

MR MA: Because it has - - -

HIS HONOUR: Many cases give rise to lots of publicity. On what ground?

MR MA: Yes, but as I said before, it has caused wide publicity in - - -

HIS HONOUR: Of course it has. Maybe it has; so what? It is just not a legal proposition.

MR MA: I withdraw that, your Honour.

HIS HONOUR: I will ask Mr Williams. What do you say about that, Mr Williams?

MR WILLIAMS: No basis is shown for it, your Honour. It is not a refugee case. Even if it were, there is no evidence put forward.

HIS HONOUR: No. No, I certainly will not make that order. So, I will make those orders as indicated which I will repeat. Should they be amended in any way, Mr Williams, from your side of the record?

MR WILLIAMS: No, your Honour.

HIS HONOUR:

(1) To the extent that it is necessary, order under Order 55 rule 30 that the applicant have leave to apply for an order for mandamus against the first respondent, notwithstanding his delay.

(2) Order that that part of the application that seeks relief on ground 1(b) of the amended draft orders, initialled by me and placed with the papers, be remitted to the Federal Court of Australia, New South Wales District Registry.

(3) Certify for counsel.

(4) Costs in the Federal Court be costs of today in the High Court.

MR WILLIAMS: Your Honour, there was one matter, I am sorry. The first order, it should have been "notwithstanding her delay".

HIS HONOUR: I am so sorry, yes, "notwithstanding her delay", that is quite right.

I would emphasise to the respondent and her advisers that when the matter comes up in the Federal Court there will be a need for cogent submissions responding to the outline that has been presented here by Mr Williams this morning.

Call matter No 2 again.

AT 10.46 AM THE MATTER WAS CONCLUDED