Aftab, Ex parte - Re Minister for Immigration & Multicultural Affairs & Anor S179/1999 [1999] HCATrans 380 (11 October 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S179 of 1999

In the matter of -

An application for Writs of Prohibition and Mandamus against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

STEPHEN HENNELL

Second Respondent

Ex parte -

CHANGEZ AFTAB

Prosecutor

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 11 OCTOBER 1999, AT 3.21 PM

Copyright in the High Court of Australia

MR N.C. POYNDER: May it please your Honour, I appear for the prosecutor. (instructed by Christopher Levingston & Associates)

MR A. MARKUS: Your Honour, strictly speaking I understand this to be an ex parte application, but I seek leave to appear on behalf of the Minister. (of the Australian Government Solicitor)

HIS HONOUR: You have that leave, and it is no longer ex parte.

MR MARKUS: It is no longer ex parte.

HIS HONOUR: Yes, go ahead.

MR POYNDER: Your Honour, this is an application for an order that the first respondent, his servants and agents be restrained from removing, or attempting to remove, the prosecutor from Australia and that the time for the service of the summons be abridged. Your Honour has, no doubt, only had a very short period of time to see the file but, by way of background, the prosecutor is a national of Pakistan - - -

HIS HONOUR: I have not read the file or any of the papers and I have no idea what the matter is about. So you had better begin from the beginning.

MR POYNDER: It is a refugee matter, an immigration refugee matter, your Honour. By way of background, the prosecutor is from Pakistan. He came to Australia on a visitor's visa in 1994.

HIS HONOUR: He arrived when?

MR POYNDER: On 21 August 1994. That visa expired on 23 September 1994. On 19 October 1994 he applied for a protection visa and on 17 May 1997 the Minister's delegate refused his application for a protection visa. He was apparently notified by letter that one of the issues in this case, and which has led to it coming to this Court, is that he says that he did not receive notification of the delegate's rejection of his application, which meant that he missed the time period in which to apply to the Refugee Review Tribunal for a review of that decision.

HIS HONOUR: He never applied to the Refugee Review Tribunal?

MR POYNDER: No. Your Honour, he disappeared until 12 May 1999.

HIS HONOUR: I do not know what that means.

MR POYNDER: Okay, nothing happened until 12 May 1999.

HIS HONOUR: He did nothing until 12 May 1999.

MR POYNDER: He did nothing until 12 May 1999 when, apparently, he was picked up by the Compliance Section of the Department of Immigration and taken into custody, being a person who had no form of visa to allow him to be in Australia. He was held in detention. This is not an issue today. He applied for a bridging visa to allow him to go out into the community and he was refused the bridging visa which is why he has remained in detention until today.

On 10 August 1999, his solicitors, who are my instructors, Christopher Levingston & Associates, wrote to the Minister - - -

HIS HONOUR: When were they engaged?

MR POYNDER: I have no instructions on that, your Honour, I am sorry.

HIS HONOUR: Get them, please.

MR POYNDER: Yes.

HIS HONOUR: Where are they? Where are the solicitors?

MR POYNDER: The solicitors are not here today.

HIS HONOUR: Why not?

MR POYNDER: One of the problems is that Christopher Levingston, the principal solicitor in this matter who instructed me briefly on Friday in relation to the application for the order nisi, not today, is in court on another matter.

HIS HONOUR: That is most unfortunate that another court has priority over this one. I want some information as to when Mr Levingston was instructed first by the applicant, by the prosecutor.

MR POYNDER: Yes. Would your Honour prefer to stand it down for me to get those instructions immediately?

HIS HONOUR: No, you will have to go ahead and do the best you can now.

MR POYNDER: Yes, your Honour. Does your Honour wish me to proceed with the chronology at this stage?

HIS HONOUR: Yes.

MR POYNDER: On 10 August 1999, the solicitors wrote to the Minister asking the Minister to exercise his discretion to allow the prosecutor to make a second application for a protection visa. That discretion, your Honour, is contained in section 49B of the Migration Act. That letter will be on the affidavit which is filed in support of the application and it is annexure A to the affidavit of Christopher Levingston and it sets out some of the background and also the reasons why Mr Levingston submitted that the application - - -

HIS HONOUR: I am sorry, this is an affidavit of Kim Pitt - - -

MR POYNDER: Your Honour, it is the affidavit which was filed with the application for the order nisi. The affidavit should be dated last Friday.

HIS HONOUR: Is it the affidavit of Kim Pitt?

MR POYNDER: No. That affidavit was filed today in support of the summons.

HIS HONOUR: Who is the deponent of the affidavit?

MR POYNDER: Christopher Levingston - David Prince, I am sorry, your Honour.

HIS HONOUR: Just a moment. I have that.

MR POYNDER: The date of the affidavit is 8 October 1999.

HIS HONOUR: That application was refused on 27 August.

MR POYNDER: Yes, your Honour. The refusal from the second respondent, Mr Hennell, is at annexure B to Mr Price's affidavit. The substance of the application for the order nisi for review is in the final sentence of the second-last paragraph of that letter, your Honour, where Mr Hennell says:

Mr Aftab's case does not meet the guidelines and will not be referred to the Minister for consideration under section 48B.

HIS HONOUR: There is something in 48B that says the Minister does not have a duty to consider these applications, is there not, as I recollect it?

MR POYNDER: Section 48B(3), your Honour, says the Minister - - -

HIS HONOUR: Do you have the Act? What is the legislation that we need, the name of the Act and the date?

MR POYNDER: The Migration Act 1958 , your Honour. Subsection (3) of section 48B says, in effect, that the Minister is under no duty to exercise his discretion under section 48B.

HIS HONOUR: Is that exactly what it says?

MR POYNDER: Your Honour, can I give you the exact words. In fact it is section 48B(6):

The Minister does not have a duty to consider whether to exercise the power under subsection (1) -

and so forth.

HIS HONOUR: That is the point, "The Minister does not have a duty to consider" it. So, presumably, the question arises, or may arise, as to whether, in the face of that statutory provision, you can complain about the fact that the Minister has not considered something.

MR POYNDER: The issue in this case - in fact, that issue was determined, your Honour, in a case of Bedlington - - -

HIS HONOUR: Just before we come to that, you were continuing on with the chronology. In late August he is told that the Minister has not considered it, is not going to consider it.

MR POYNDER: He was told that Mr Hennell, the second respondent, will not refer the matter to the Minister for consideration under 48B.

HIS HONOUR: Yes.

MR POYNDER: Then on 31 August Mr Levingston, which is annexure C to Mr Price's affidavit, asked Mr Hennell for reasons as to why the request was not passed on to the Minister and he asked for it under the Administrative Decisions (Judicial Review) Act 1977 . On 9 September 1999, which is annexure D to the affidavit, Mr Hennell wrote back again and said that he is not required to give reasons under the AD(JR) Act, which really gives rise to the substance of the application for the order nisi for review.

HIS HONOUR: Maybe it does, but today is 11 October and you got this information on 9 September.

MR POYNDER: Yes.

HIS HONOUR: What is the explanation of the delay?

MR POYNDER: Your Honour, I was only briefed in this matter on Friday so I can give your Honour no explanation for the delay.

HIS HONOUR: Then we need the explanation. I am sorry, someone is solemnly telling me that this is an urgent matter that has to be dealt with before tomorrow and it is a matter that arose on 9 September 1999. Are you serious?

MR POYNDER: It is obviously something I will have to seek further instructions on, your Honour.

HIS HONOUR: In fact, somebody is telling me that this is a matter that has to be dealt with by 4.45 this afternoon and it is a matter that arose on 9 September. That is amazing.

MR POYNDER: I am sorry, your Honour, I am unable to assist with that.

HIS HONOUR: Is there nothing else in the papers that explains why, at 3.30 on the afternoon of 11 October, there has been brought before the Court an application in relation to a matter that appears to have arisen on 9 September?

MR POYNDER: Only that a letter from the Department of Immigration was received today indicating that the Department is proceeding with the removal of the prosecutor.

HIS HONOUR: But is that the first intimation that the Department was going to remove - - -

MR POYNDER: The only other matter on the papers would be - and I do not have a copy of it - the letter from the Department of Immigration refers to a fax dated 8 October from Mr Levingston's office - - -

HIS HONOUR: Let us go back a step. When Mr Levingston's office was notified on 9 September that the application for reasons under the AD(JR) Act was refused, what was then understood as to what was going to happen to your client?

MR POYNDER: I do not have those - I cannot assist your Honour with that.

HIS HONOUR: Are you in a position, Mr Markus, to assist about this at all?

MR MARKUS: Your Honour, all I can do is draw your Honour's attention to section - - -

HIS HONOUR: I am frightfully sorry, I am not asking you for assistance in relation to the statute or the law; I am asking whether you can assist as to what is known about the facts concerning the time at which it became known that the prosecutor was going to be deported this afternoon. Do you understand my difficulty?

MR MARKUS: Yes, your Honour.

HIS HONOUR: Mr Poynder tells me that on 9 September 1999 his client - or his client's solicitor - apparently came to the end of the road in relation to their attempts to get some reasons for a decision from the Department. Then, at about 3 o'clock this afternoon, the prosecutor or the prosecutor's solicitor approaches this Court, as I understand it for the first time, and says something is going to happen at 4.45, we need urgent relief. The question that is almost too obvious to ask then arises, what was going on between 9 September 1999 and today in relation to this supposedly urgent matter? I am asking you whether you can assist to answer that question.

MR MARKUS: Your Honour, I do not have specific instructions about exactly when the applicant was told of the arrangements that have been made. Could I just check, your Honour, with somebody from my office. Your Honour, we can try to find out, but I cannot presently tell your Honour.

HIS HONOUR: I will adjourn this matter. I do not see any evidence here, but is it the case that the applicant is due to be put on a plane at 4.45 today?

MR MARKUS: Yes, your Honour. My understanding is that the plane departs at 4.45. He is on his way to the airport.

HIS HONOUR: The delay appears to be amazing, but what I will do is adjourn for 15 minutes and give you, Mr Poynder, an opportunity to find out what the explanation for it is. In the meantime, you might do the same, Mr Markus, to see if you can throw any light on how it can possibly have come about that this is all being brought forward at the last minute, in circumstances where it appears that on 9 September 1999 the Department had made it plain that they were not proposing to do anything by way of giving reasons for not putting this matter before the Minister.

I will adjourn for 15 minutes.

AT 3.37 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.52 PM:

HIS HONOUR: Yes, Mr Poynder.

MR POYNDER: Your Honour, my instructions are that the prosecutor first instructed Levingston & Associates on 13 May 1999 when he was in detention. The only explanation I have for the delay between 9 September and today is that the solicitors were exploring options and - - -

HIS HONOUR: That is no explanation at all. You have no instructions, for example, that it was only today or yesterday that they found out he was going to be deported?

MR POYNDER: My instructions are, yes, that it was today they found out he was to be deported today. They knew he was due to be deported - - -

HIS HONOUR: They knew he was due to be deported?

MR POYNDER: - - -last week, but it is only today they found out that he was due to be deported today.

HIS HONOUR: They knew last week that he was due to be deported?

MR POYNDER: My understanding is that Friday was the - - -

HIS HONOUR: Is there any evidence about this?

MR POYNDER: There is a letter annexed to the affidavit of Ms Pitt, your Honour. It is the only annexure to the affidavit of Ms Pitt and that is sworn today.

HIS HONOUR: Kim Pitt? I am sorry, is there any evidence about when it was that your instructing solicitors first found out that their client's deportation was imminent? I am not asking when they first found out he was on flight QFI or whatever it is at such-and-such an hour, but when was it that they first found out that his deportation was imminent?

MR POYNDER: There is no evidence about that. From the Bar table, my understanding, when I received instructions, was that it was approximately last Friday that they found out that this was the case. But there is no evidence about that.

HIS HONOUR: What is your client's attitude to this, Mr Markus?

MR MARKUS: Your Honour, I am instructed to oppose the application. Could I also indicate that my instructions are that the applicant was advised of the fact that arrangements were being made for his removal by facsimile forwarded to the Villawood Detention Centre on 6 September 1999. He was advised of the actual date and time of removal on the morning of 7 October, that is last Thursday.

HIS HONOUR: Just excuse me for one moment, Mr Markus. Yes, Mr Poynder. The matter on which I would like to hear you particularly at this stage concerns your application that time for service of the summons be abridged. That is the primary application we are dealing with at the moment.

MR POYNDER: Yes, your Honour.

HIS HONOUR: And the question I would like you to address is why, having regard to the fact that your instructing solicitors were engaged in May of this year; that they have been in communication with the Department on your client's behalf from that time; that it appears that your client was advised by fax that his deportation was imminent on 6 September 1999; that the Department advised your instructing solicitors that they were not going to give reasons for not referring to the Minister the matter of his application for a favourable exercise of the Minister's discretion and that they were advised of the precise date and time of the deportation of your client on 7 October; that no approach was made to the Registry of this Court until this afternoon.

MR POYNDER: Your Honour, the delay from 6 September until last Thursday, 7 October, my instructions are - and I accept that your Honour finds it unsatisfactory - is that the solicitors were considering what legal options the prosecutor had. As for the delay between 7 October and today, I have to partially perhaps say from the Bar table that the brief I received was that an application had to be filed with the Court for the order nisi for review but there was no question of seeking any interlocutory injunction at that stage. There were no instructions to that effect. The first instructions I have received to seek an interlocutory injunction came by way of a telephone call at about five past one today. Now, that I can say from my own knowledge. My instructing solicitor, who I spoke to during the break, was unable to provide any explanation to me beyond what I have already advised your Honour. Unfortunately, your Honour, I do not think I can take it any further than that.

HIS HONOUR: Thank you, Mr Poynder.

HIS HONOUR: It is now 4 pm on 11 October 1999. At about 3.20 pm today I commenced hearing an application to abridge the time for service of a summons and an application for an interlocutory injunction restraining the deportation from Australia of the prosecutor in this matter.

Counsel for the prosecutor, who is applying for the interlocutory injunction - or his instructing solicitors, I am not sure which - contacted the Registry at about 1.30 pm today for the purpose of having this matter listed urgently. Thereafter, the necessary papers were prepared and filed with the Registry and the matter was brought on for hearing within a matter of 15 minutes or so. I have been informed that the prosecutor is to be deported on a plane which departs from Australia at 4.45 pm. He may be on the plane now.

The circumstance that this application for abridgment of time to serve a summons and for an interlocutory injunction has been brought on at such a late stage and in such an atmosphere of extreme urgency might indicate that the dispute between the prosecutor and the relevant government department is a new one. That is a long way from the truth. The prosecutor arrived in Australia in August 1994 under a visitor's visa which expired in September 1994. He applied for a protection visa in October 1994, and in May 1997 the delegate refused his application. The prosecutor never sought a review by the Review Tribunal of the delegate's decision. After disappearing for some time, the prosecutor was apprehended and taken into custody on 12 May this year. On 13 May he instructed Christopher Levingstone & Associates to act as his solicitors and they have been acting as solicitors ever since May of this year.

The prosecutor's solicitors engaged in certain correspondence with the Department. It is unnecessary to go into the detail of that correspondence. It suffices to say that the attitude taken by the Department gave rise to a decision to make an application for prerogative relief. The solicitors for the prosecutor, in August 1999, demanded that the decision maker in the Department give reasons for a certain decision concerning failure or refusal to submit to the Minister an application made by the prosecutor and, on 9 September 1999, the solicitors were formally notified that no reasons for that decision would be given. That communication brought to a head in early September the forensic situation upon which the solicitors for the prosecutor considered moving for prerogative relief.

I have been informed from the Bar table, and I do not understand this to be disputed, that on 6 September 1999 the prosecutor was advised by facsimile transmission that he was to be deported from Australia, although at that stage the precise date and time of the deportation was not notified. I have also been informed from the Bar table that on 7 October the prosecutor and his solicitors were informed that the deportation was to take place at 4.45 pm today, that is in about half an hour's time.

There is, in my view, no satisfactory explanation of the reason why the application for abridgment of time for service of a summons and for interlocutory relief has been brought to this Court a matter of only an hour or two before the actual deportation of the prosecutor. People who move this or any other court for urgent relief are ordinarily called upon to give an explanation of the circumstances that have given rise to the alleged urgency. One of the reasons for this requirement is to ensure that litigants do not place their opponents and the Court in a position where their claim for urgent relief is strengthened by the very delay for which they, or their legal representatives, are wholly or partly responsible.

The application is dismissed.

MR POYNDER: If the Court pleases.

HIS HONOUR: I will adjourn

AT 4.07 PM THE MATTER WAS CONCLUDED