Ghomwari, Ex parte - Re Rudduck & Anor S239/1999 [1999] HCATrans 667 (21 December 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S239 of 1999

In the matter of -

An application for Writs of Habeas Corpus, Certiorari, Mandamus and an Injunction against PHILIP RUDDUCK in his capacity as THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

SUE TONGUE in her capacity as the Presiding and Principal Member of the MIGRATION REVIEW TRIBUNAL

Second Respondent

Ex parte -

HASSAN GHOMWARI

Prosecutor/Applicant

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 21 DECEMBER 1999, AT 10.01 AM

Copyright in the High Court of Australia

MR J.M. GERSTEN: May it please the Court, I appear for the prosecutor/applicant. (instructed by Alex Lee, Solicitors)

MR B.J. SKINNER: May it please the Court, I appear for the first-named respondent and I should indicate to your Honour that, given the shortness of notice of service, no formal instructions to appear have yet been given by the second-named respondent. (instructed by the Australian Government Solicitor)

HIS HONOUR: Thank you. Yes, Mr Gersten.

MR GERSTEN: May it please the Court, it may be prudent, I am not sure that it is necessary, if I might address the Court on the matter of abridged service which was made yesterday.

HIS HONOUR: On what issue?

MR GERSTEN: Abridged service, truncated period of time of service.

HIS HONOUR: You need not concern yourself with that. We have not got much time and you should deal with more substantial issues than questions of abridged service.

MR GERSTEN: Indeed. May it please the Court. The applicant is before you seeking an order in the nature of habeas corpus or a mandatory injunction releasing him from immigration detention during the pendency of this matter. The draft rule nisi and supporting affidavit lays out, we would say succinctly, the argument to be made before this Court. We have invited the first respondent to resile from the position that the Court does not have the jurisdiction and power to order the release. We might once again invite the respondent to reconsider their position in that respect.

HIS HONOUR: Your offer is not taken up, so carry on.

MR GERSTEN: Thank you. May it please the Court, this matter is in respect of a decision and reasons for the decision - - -

HIS HONOUR: I have read all the papers. I am fully aware of the facts. I have read the judgment of Justice Emmett, I have read the judgment of the Migration Review Tribunal, I have read some of your submissions. I assume they are only part of the submissions concerning the validity of section 196. I have read the document headed "Index and Pagination A L" which contains various matters, including medico legal reports and the judgment of Justice Burchett.

MR GERSTEN: Indeed. As the Court would please, we would be prepared to argue the substantive nature of the claim. We feel at this point that we are not necessarily - - -

HIS HONOUR: You have got to show that there is an arguable case for the grant of an order nisi.

MR GERSTEN: Indeed. I would begin by suggesting that the preliminary issue is whether or not this Court has the jurisdiction and power to make a release on an interim basis.

HIS HONOUR: That is an ultimate question. The first question that you have to persuade me about is that there is sufficient grounds for granting an order nisi. If your application for order nisi is dismissed, then no question of the order in the nature of habeas corpus can arise, it seems to me.

MR GERSTEN: Indeed. I would call the Court's attention to paragraphs numbered 31 through 33 of the decision of the MRT dated 26 November 1999.

HIS HONOUR: Yes.

MR GERSTEN: The principal and then presiding member of the Tribunal, in paragraph 31, we say has laid the foundation for a fatal error in the upholding of the decision made by that member. I would invite the Court to read that - - -

HIS HONOUR: I have read that paragraph.

MR GERSTEN: We would submit it is sufficiently nonsensical to fall within the parameters of unreasonableness.

HIS HONOUR: It certainly does not strike me that way, Mr Gersten. It is a question of fact. Satisfaction that a condition of a visa will be carried out is mandatory under the regulations and it is a very large proposition to say that a person who says they are not satisfied was unreasonable in so holding, I must say I do not see any ground at all for thinking that that decision can be characterised as unreasonable.

MR GERSTEN: Our next position, your Honour, would be in respect of the natural justice or procedural fairness argument. We say that, in essence, there was an ambush. We say that there is an obligation on the part of the Tribunal.

HIS HONOUR: That seems to me to be contrary to what Justice Mason said in Kioa 159 CLR 587 and what was said by various members of the Court in Abebe, that is to say the Tribunal is not bound to tell you the grounds upon which it is going to reject your application. In Kioa Justice Mason said, at page 587:

The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward.

And a similar principle is stated in a number of the judgments in Abebe [1999] HCA 14; 162 ALR 1 at paragraphs 90, 187, 188, 212 and I think at 294-295.

MR GERSTEN: Thank you, your Honour. We would distinguish those particular passages in Abebe by suggesting that counsel at the MRT raised the issue of Munn v Air New Zealand and Annetts v McCann. That was a very specific request to the Tribunal to advise the applicant what, if anything further, would be necessary to be able to disabuse the Tribunal of any adverse feelings.

HIS HONOUR: I know you raised it, but the Tribunal was not bound to accede to it, and it did not accede to it. That being so, it seems to me to be completely indistinguishable from Kioa and what was said in Abebe.

MR GERSTEN: May it please the Court. Having regard to the Tribunal's decision in paragraph 33, we say that that law, that is the Karras test - - -

HIS HONOUR: That is a what sort of a test, Mr Gersten?

MR GERSTEN: Okay. The Tribunal suggested that it had to be positively satisfied that the applicant would abide by condition 8101 and not work.

HIS HONOUR: Correct.

MR GERSTEN: The Tribunal then went on to say, "I am uncertain as to whether compliance with that condition will occur", ie not working. So the requisite state of satisfaction has not been achieved. The Tribunal cited the case of Karras. We say that is bad law and we say that this Court should have an opportunity to review whether or not the decision of a Federal Court judge is sufficient. We say that, in fact, Karras then imposes a standard or an onus and that that is not the proper function of a tribunal of inquiry.

HIS HONOUR: It is in this particular case because the regulations make the satisfaction of the Tribunal a condition of granting a visa. Satisfaction is a jurisdictional fact as to the granting of the visa.

MR GERSTEN: May it please the Court. If that be so, in the terms expressed by the Court then, in that event, there is no objective indicia in a King Gee sense, or adverse to the King Gee principle on uncertainty, so that an applicant would never understand what, if we determine a test, would have to be met.

HIS HONOUR: That may be so, but for better or worse, Parliament has vested these discretions in these tribunals, made then largely unreviewable except in limited circumstances, and that is something that you may say, regrettably, that you have to live with.

MR GERSTEN: If the applicant were to feel that entirely so, the applicant perhaps would have approached the Federal Court under an error of law. The applicant has approached this Court in some not unsubstantial part because of your Honour's decision in Abebe.

HIS HONOUR: I must say I understood from your submissions and from your solicitor's affidavit he was claiming that none of these issues could be raised in the Federal Court.

MR GERSTEN: Indeed. As a matter of fact, the way the matter was run, that is entirely so.

HIS HONOUR: Yes. If it was not so, then you would have some trouble getting mandamus because mandamus is a discretionary remedy and it has always been a ground for refusing mandamus that there is another avenue of relief open to you.

MR GERSTEN: May it please the Court, I would entreat the Court to accept that it is not a complete happenstance that the nature of the way this matter was run at the MRT is such that these issues appear before you or this Court today.

HIS HONOUR: I understand that your point is that none of these issues can be raised before the Federal Court and, if that is so, then your only avenue is here. But you have to show jurisdictional error of some sort or at least an arguable case of jurisdictional error.

MR GERSTEN: It would appear from what has fallen from your Honour that there seems to be a bit of a hurdle that the applicant is having some difficulty in achieving.

HIS HONOUR: There certainly is. Prohibition does not lie for mere error of law. At least in this country it has never been held to do so, at least so far. Prohibition lies for jurisdictional error. So does mandamus. And certiorari, which you seek, is not a jurisdiction conferred on this Court but, arguably, exists to facilitate the issue of writs such as prohibition and mandamus. And if you can make good that you have a point of prohibition, mandamus or perhaps injunction, you may be able to get certiorari. But nevertheless, it is a question of jurisdiction that you have to face up to.

MR GERSTEN: Indeed, your Honour. Perhaps I am not articulating our position as cogently as I might. We say, once again, that at the end of the day, upon a full ventilation of these issues, that we have a fair chance to show that the position adopted by the Tribunal was unreasonable and is bad law. We say that until that time occurs, that the natural state of being is liberty and that this Court might impose or permit the natural state of being to exist in respect of the applicant. I call the Court's attention to - - -

HIS HONOUR: But he has not got a natural state of freedom because section 196 of the Act says that as an unlawful non-citizen, he cannot be at large.

MR GERSTEN: Might I address the Court on that issue, please.

HIS HONOUR: Yes.

MR GERSTEN: Thank you. In Lim v The Commonwealth (1992) 176 CLR 19 - they have this new system - I will just digress for a moment, your Honour. Instead of having the hard copy, there is a CLR print-out that purports to be identical so I am presuming this will be the correct page. At page 19 there is an exposition of the law and I might read to the Court why we believe habeas corpus lies in this particular set of circumstances, and particularly addressing the issue that your Honour has just raised. I read:

Since the common law knows neither lettre de cachet nor other executive warrant authorizing arbitrary arrest or detention, any officer of the Commonwealth Executive who purports to authorize or enforce the detention in custody of such an alien without judicial mandate will be acting lawfully only to the extent that his or her conduct is justified by valid statutory provision.

HIS HONOUR: I appreciate that. That is the general principle.

MR GERSTEN: Exactly.

HIS HONOUR: But you have to get over the passage that appears at page 32 of that judgment:

It can therefore be said that the legislative power conferred by s.51(xix) of the Constitution encompasses the conferral upon the Executive of authority to detain (or to direct the detention of) an alien in custody for the purposes of expulsion or deportation.

MR GERSTEN: May it please the Court. There is a subsumption in that particular passage of which I am aware. We say that the detention is unlawful and subject to a legitimate inquiry by the court. That inquiry is in fact taking place before the Full Court. Now, the issue of whether or not there was an arguable case was argued to Justice Sackville and Justice Sackville declined the respondents' submission that there was no arguable case and in fact issued an injunction permitting - directing, ordering that the applicant not be removed from the jurisdiction because I believe it was either paragraph 42 or 49 of the decision of his Honour Justice Emmett seemed to have some flaw in it. So that issue has been litigated before the Full Court which is why, basically, the applicant is still in the country.

So if there was no arguable point as to whether or not the applicant is lawfully in detention, perhaps - - -

HIS HONOUR: That does not prevent the Parliament from enacting a law which says that until a person is granted a visa or is held to be a lawful non-citizen, that person can be held in custody. It is part of the aliens power under 51(xix).

MR GERSTEN: Indeed, your Honour, and we do not argue the breadth and strength of the aliens power. I mean, it is manifest and we do not argue the law on that subject. But we do say that a detention may be unlawful and a legitimate inquiry may be had by a court, and if no other court, by this Court. If that be so - - -

HIS HONOUR: Yes, but it seems to me you have two problems to overcome. First of all, you have this problem, that if your attack on the decision of the Migration Review Tribunal fails, there is nothing before this Court upon which the Court could issue habeas corpus.

MR GERSTEN: That is so.

HIS HONOUR: So if you fail on that point, that is the end of the matter.

MR GERSTEN: If it is this Court's determination that the reasons provided by the member in paragraphs 31 and 32 of the decision are so firm that they fall into neither Wednesbury unreasonableness or failure to take into account relevant considerations or taking into account irrelevant considerations, or for that matter procedural fairness in two forms; procedural fairness in terms of legitimate expectation and procedural fairness in terms of the basic hearing rule, that is notice and opportunity, then in that event I would say that there is a certain futility in appearing before this Court today, were the Court to make that decision with a strength such that it is unshakeable.

HIS HONOUR: Well, that is my view at the moment. I have told you the reasons why. I have heard what you had to say. I have read your submissions. My view is that you have no grounds for an order nisi and that being so, it seems to me that the application.....is irrelevant.

MR GERSTEN: May it please the Court.

HIS HONOUR: Thank you, Mr Gersten. I need not hear you, Mr Skinner.

MR SKINNER: There is nothing I wish to add to that, your Honour.

HIS HONOUR: This is a summons by Hassan Ghomwari (the Prosecutor/Applicant) in which he seeks three orders.

1. An order in the nature of Habeas Corpus ordering the First Respondent to release the Prosecutor/Applicant from immigration detention on an interlocutory basis pending a final determination of this matter; or alternatively

2. A mandatory injunction ordering the First Respondent to release the Prosecutor/Applicant from immigration detention on an interlocutory basis pending a final determination in this matter; and

3. An order in the nature of certiorari quashing the decision of the Migration Review Tribunal ("the MRT") dated 26 November 1999 affirming the decision under review by the MRT not to grant the Prosecutor (Applicant below) a Class WE Subclause 050 Bridging E Visa; or alternatively

4. An order in the nature of mandamus commanding the Second Respondent to appoint a Member of the Migration Review Tribunal to re-hear the Prosecutor's application according to law.

The prosecutor/applicant has been in immigration custody since 9 July 1998 and he has been housed in a State prison facility since 8 September 1998.

In proceedings before the Federal Court he contended that on 18 November 1996 he submitted a valid application for permanent residence, including an application for a bridging visa. He contended that the Minister wrongfully refused the application, that he, the prosecutor, had complied with all necessary conditions for a visa and that he should be treated for all purposes as though a bridging visa had been granted on 18 November 1996. If that submission was made good, he was a lawful non-citizen, and he was entitled to be released from detention. Alternatively, in the Federal Court he contended that the conditions of his detention were unlawful and that the decision to transfer him from Villawood to Silverwater was void or otherwise unlawful.

In the Federal Court, Justice Emmett rejected these claims. He held that the prosecutor/applicant was an unlawful non-citizen and that his detention was lawful at all times. The prosecutor has appealed to the Full Court of the Federal Court. Justice Sackville has issued an injunction restraining the first respondent from deporting the prosecutor/applicant pending the hearing of his appeal.

On 4 November 1999, the prosecutor made a further application for a visa, that being Class WE Subclass 050 Bridging Visa E. The Migration Review Tribunal held, on 26 November 1999, that, before it would grant the bridging visa, it should impose a condition, namely the condition set out in criteria 8101, that the holder of the visa must not work in Australia. Regulation 50.0.213 required the Tribunal to be satisfied that that condition would be met before the Tribunal should issue the visa. The Tribunal was not so satisfied. Accordingly the Tribunal affirmed the decision under review and found that the prosecutor was not entitled to the grant of the Bridging E Visa.

The prosecutor has now issued proceedings in this Court. He has submitted a draft order nisi which claims that the decision of the Tribunal was void and which calls upon the first respondent to show cause why a writ of habeas corpus should not be issued out of this Court directing the first respondent to release the prosecutor from immigration detention until the hearing or determination of the matter by this Court; why an injunction should not be issued out of the Court ordering the first respondent to release the prosecutor/applicant from immigration detention, in the first instance on an interlocutory basis while the Court is considering the matter; why a writ of certiorari should not issue out of this Court quashing the decision of the Migration Review Tribunal dated 26 November 1999, and alternatively, why a writ of mandamus should not be issued out of this Court directed to the second respondent, commanding her to appoint a member of the Migration Review Tribunal to hear the prosecutor's application according to law.

The grounds relied upon in support of the draft order nisi can be categorised into four grounds. First, that the Tribunal had no jurisdiction; second, that its decision was unreasonable; third, that it took into account irrelevant considerations or failed to take into account relevant considerations, and fourth, that it acted in breach of natural justice or the rules of procedural fairness.

As to the claim that the Tribunal acted in breach of the rules of natural justice, the prosecutor alleges that, through his counsel, he asked the Tribunal to put the prosecutor on notice of what, if any, issues, reasons or material were considered by the Tribunal to be adverse to the applicant so that the applicant might have an opportunity to respond to such issues, reasons or material. The Tribunal declined to afford the applicant such an opportunity. The prosecutor asserts that that failure constituted a breach of natural justice. However, as Justice Mason pointed out in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 587:

The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward.

There are statements to similar effect in Abebe v The Commonwealth [1999] HCA 14; (1992) 162 ALR 1 at paragraphs 90, 187-188, 212 and 294-295. In my view, the prosecutor has no reasonable prospects of making out a case of breach of natural justice and that ground for an order nisi must fail.

As to the second issue to which I have referred, namely that the decision of the Tribunal was unreasonable, this raises a question of fact. It was a condition of the grant of a visa that the Tribunal should be satisfied that the conditions would be complied with. The Tribunal gave its reasons for not being so satisfied. For my part, I can see nothing in those reasons which would suggest that they were even arguably unreasonable. For that reason, the claim that the decision was void because of Wednesbury unreasonableness must be rejected.

The third category relied on was that of relevant and irrelevant considerations. The draft order nisi relies on three sub-categories of relevant and irrelevant considerations. It is sufficient to say that none of them contain the slightest ground for impugning the decision of the Tribunal that it was not satisfied that the condition would be carried out.

The first of the categories to which the order nisi refers is lack of jurisdiction. Mr Gersten, who appears for the prosecutor this morning, addressed no oral argument in support of that category but I would understand the claim to be basically that section 367 of the Act required the decision of the Tribunal to be made within the prescribed period and that that was not done. I assume that the argument then is that the effect of the breach is that the visa is deemed to be granted. In fact, section 75 of the Act declares that where the Minister does not make a decision, within the prescribed period, to grant or refuse to grant the bridging visa the non-citizen is taken to have been granted a bridging visa of the prescribed class on prescribed conditions (if any) at the end of that period.

There is no such statement in section 367 which concerns the Tribunal. That being so, it seems to me that the requirement in section 367 that the decision must be given within the prescribed period is what, before our decision in Project Blue Sky, would probably have been described as a directory rather than mandatory requirement. In any event, it is not a matter that affects the jurisdiction of the Tribunal, and it certainly does not have the result that the applicant is deemed to be granted a visa.

That being so, the summons must be dismissed. Because I am of the view that the summons must be dismissed, it is unnecessary to deal with the argument that the Court should release the applicant on bail pending the hearing of proceedings in this Court or the Federal Court.

MR SKINNER: Your Honour, the first respondent seeks an order for costs in respect of this application.

HIS HONOUR: There is nothing you can say about that, Mr Gersten?

MR GERSTEN: No.

HIS HONOUR: The summons is dismissed with costs.

MR GERSTEN: May it please the Court.

AT 10.36 AM THE MATTER WAS CONCLUDED