Taylor, Ex parte - Re Ruddock S23/2000 [2000] HCATrans 101 (16 March 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S23 of 2000

In the matter of -

An application for Writs of Prohibition, Certiorari and Habeas Corpus against the HONOURABLE PHILIP MAXWELL RUDDOCK, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte -

GRAHAM ERNEST TAYLOR

Prosecutor

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 16 MARCH 2000, AT 11.05 AM

Copyright in the High Court of Australia

MR P. LeG. BRERETON, SC: May it please your Honour, I appear with my learned friend, MR D.W. PHILLIPS, for the prosecutor. (instructed by Teakle Ormsby Conn Lawyers)

MR R.T. BEECH-JONES: May it please your Honour, I appear on behalf of the respondent. (instructed by the Australian Government Solicitor)

HIS HONOUR: Yes, Mr Brereton.

MR BRERETON: May it please your Honour, the prosecutor seeks relief under section 75(v) of the Constitution, principally by way of prohibition and injunctive relief directed to the Minister and, ancillary to that, certiorari and habeas corpus in respect to the decision made by the Minister purportedly under section 501(2) of the Migration Act 1958 to cancel the prosecutor's visa.

Order 55 rule 1 requires, by subrule (2) that the application initially be for an order nisi and that is what this application is. But that rule also provides, by subrule (4), that your Honour, in your Honour's discretion, if of the view that the justice of the case so requires, may make an order absolute in the first instance and it will be my submission that this is such a case. But at the outset, the application is for an order nisi, as the rules require, inviting your Honour's attention to the power to make an order absolute if your Honour thinks the case is one in which the justice of the case so requires. That is Order 55 rule 1(4).

HIS HONOUR: Mr Brereton, there was another summons filed this morning, is that right, in relation to the names - - -

MR BRERETON: My learned friend has filed a summons in that respect, yes, your Honour.

HIS HONOUR: I wonder if I should deal with that first.

MR BRERETON: We have no difficulty with that, your Honour.

MR BEECH-JONES: If your Honour pleases. Your Honour, that was served by facsimile. Could I, perhaps, file in Court the original summons and short affidavit in support. I will perhaps also hand to your Honour a copy of section 578 of the New South Wales Crimes Act.

HIS HONOUR: There could not be any objection to making an order in accordance with that.

MR BRERETON: There is none, your Honour.

HIS HONOUR: I will make an order in terms of paragraphs 1 and 2 of that summons. Perhaps I just should read order 2:

I order that there be no publication of any evidence which would identify the persons listed in the indictment set out at pages 1 and 2 of the sentencing comments of Judge Knight, being document 1 in Exhibit "LA5" to the affidavit of Lillian Ajuria sworn 1 March 2000.

Mr Brereton, could you tell me what the status of matters is in the Federal Court. There is a matter before his Honour Justice Beaumont, is that right?

MR BRERETON: Yes, your Honour. Shortly, both proceedings were instituted by the applicant when he was unrepresented. When my learned junior came into the matter about three or four weeks ago it became apparent that the Federal Court was not the appropriate jurisdiction and that the grounds sought in that proceeding were not sustainable.

HIS HONOUR: Because of the decisions of this Court in Abebe and Eshetu, is that right?

MR BRERETON: More particularly because of the legislative exclusion of particular grounds of relief from the Federal Court, your Honour. As a result of that my learned junior, who came into the matter about two or three days before the matter was listed for hearing before Justice Beaumont, applied for, and secured, an adjournment before his Honour, foreshadowing an application to this Court, and that adjournment was granted. The position is that, to the extent necessary, we will proffer an undertaking to discontinue the proceedings in the Federal Court.

HIS HONOUR: Yes, we might return to that, Mr Brereton. Mr Brereton, what do you say about - this was a decision of the Minister, is that right?

MR BRERETON: Yes, your Honour.

HIS HONOUR: What do you say about subsection (3) of section 501 of the Act?

MR BRERETON: I think I say, your Honour, that it does not apply - yes, the decision that the Minister made was a decision expressly made under 501(2), not subsection (3). So the Minister's decision was explicitly under that subsection to which natural justice does apply.

HIS HONOUR: Does apply, right, thank you. And your two grounds are denial of the rules of natural justice and Wednesbury unreasonableness.

MR BRERETON: That is right.

HIS HONOUR: In what respects do you say that your client was not accorded natural justice?

MR BRERETON: In this way, your Honour. Perhaps the best way of illustrating this is to take your Honour to the brief that went to the Minister, which is in exhibit LA5. It is document 15 in that exhibit. The document numbers are in the top right-hand corner.

HIS HONOUR: What about some page numbers. Do you have any page numbers?

MR BRERETON: I have, your Honour, but they are not in - I do not think your Honour will find that they are in sequential order necessarily.

HIS HONOUR: I have that.

MR BRERETON: If your Honour pleases. The third page of that document - there is a covering minute of two pages and then the third page, which should have the stamped number 3 in the bottom right-hand corner is the commencement of the brief. At the page which has the number 14 stamped in the bottom right-hand corner your Honour will see, at about point 2 under the heading "Natural Justice" that the Minister was briefed that he could find on the basis of three documents that he had been afforded natural justice. First, a letter of 25 November, secondly, an interview on 4 February and, thirdly, a further letter of 28 June 1999. I will come to those documents in a moment. If one then proceeds to - - -

HIS HONOUR: That is a curious way to put it, is it not, really, that the Minister could make a finding in effect.

MR BRERETON: Especially in circumstances, your Honour, where this was a decision which was reserved to the Minister personally for the express purpose of excluding a review on the merits to the AAT. So that a decision was made to reserve this decision to the Minister personally and thereby to exclude a merits appeal to the AAT.

HIS HONOUR: That is what the legislation - that does not make any difference. Anyway, you go on.

MR BRERETON: I will illustrate how, in this particular case, it does, your Honour. Now, before I come back to those three pieces of correspondence, if one turns to the page with 16 stamped at the bottom right-hand corner, the brief then summarises the matters to be taken into account adverse to, and to some extent in favour of, Mr Taylor. Without going to them in detail at this stage, at page 19 it summarises the factors in favour of cancellation, the serious nature of the offence and the risk of recidivism and then some factors against cancellation. At two pages over at page 21 is the Minister's decision and we have since been told that the Minister's reasons for that decision are the reasons in the brief.

Now, from what is at page 19, it will be apparent that the case against Mr Taylor depended essentially on the serious nature of the offence and the risk of recidivism. I should pause there to say that the decision under section 501(2) involves two elements. One is, as it were, a jurisdictional fact whether he passes the character test. It is common ground, because of the statutory definition of the character test, he does not because of his conviction. Once he does not pass the character test, that enlivens the discretion to cancel his visa under subsection (2) and it is in respect of the exercise of that discretion to cancel the visa that complaint is made.

Now, as can be seen, two major matters were relied on in favour of cancellation and two matters were put to the Minister supporting it: the serious nature of the offence and the risk of recidivism. Against that background, may I turn to the - - -

HIS HONOUR: But, Mr Brereton, the Minister had the benefit of the whole of the brief, of course.

MR BRERETON: Yes, your Honour.

HIS HONOUR: These were just the matters that occurred to the official as being the most important matters or the most relevant matters, so far as he was concerned.

MR BRERETON: Yes, except, your Honour, that we have since been told that the Minister's reasons are to be found in the brief. So the Minister has, as it were, adopted the brief.

HIS HONOUR: The whole of the brief?

MR BRERETON: I think the covering brief is the way it was expressed, your Honour, pages 1 to 16.

HIS HONOUR: Have I a copy of that letter, Mr Brereton?

MR BRERETON: I think so. I am told it is document 30, the last two pages of that very same exhibit, your Honour. Right at the foot of the first page:

It is noted that the Minister's reasons for this decision are contained in the Minute which appears at pages 1-21 of the Bundle of Relevant Documents.

HIS HONOUR: The minute, which is the minute?

MR BRERETON: That is the document through which I have been taking your Honour, being document 15.

HIS HONOUR: That is what I am asking you. Is that the whole of document 15, that is the minute?

MR BRERETON: Yes.

HIS HONOUR: Right, thank you. That does not mean, then, that the Minister's reasons are confined to the submission, because that is what it was, that was made by the official. Because if you look at page 19:

it is submitted that in deciding whether it is in the best interest of Australia.....the principal factors to be taken into account are as follows:

So one can note really three things about that: first, it is an official submission only; secondly, it does not purport to exclude the other factors, and thirdly, in any event, the Minister had the benefit of the whole of the minute and took, presumably, the whole of the minute into account, as the letter states.

MR BRERETON: Quite so, your Honour, and may I add a fourth thing to that, that Mr Taylor never had an opportunity of seeing or commenting on the submissions that were being made to the Minister.

HIS HONOUR: Why should he have?

MR BRERETON: Because, under section 501, he was entitled to natural justice; an opportunity to respond to the case being made against him. The reason I took your Honour to page 19 at the outset was simply to show what the nature of the case being made against Mr Taylor was.

HIS HONOUR: Mr Brereton, how could he have been in any doubt at all as to the relevance of the nature of the offences of which he had been convicted and of the risk of recidivism? How could he have been in any doubt as to the likelihood, or the relevance, of those matters?

MR BRERETON: Because, in the way that the matter was put to him, your Honour, the matters that were going to be put against him were at no stage raised.

HIS HONOUR: But, Mr Brereton, they are raised by the legislation. The legislation involves or requires a character test. The character test is satisfied, as you concede, by the fact of the convictions. He was only on parole; he, himself, dealt with questions of rehabilitation. He said as much in his interview, did he not, that he thought he was being rehabilitated and, indeed, one of his complaints is that his prospects of rehabilitation are impeded by the fact of his detention at a particular place.

MR BRERETON: Quite so, your Honour.

HIS HONOUR: Well, how could he have been in any doubt at all as to the two matters put against him in the submission?

MR BRERETON: Because there is a difference between knowing or answering questions put to him about rehabilitation, what steps are you taking about rehabilitation, on the one hand, and answering, on the other, an allegation that the risk of recidivism is such that he should be deported and that allegation was never raised at any point in the communications with him. Can I illustrate that, your Honour, by showing how the matter developed, in this way? First of all, if I can take your Honour to the first letter which was referred to in the brief. That is the letter of 25 November 1998 which is document 2 in the exhibit.

HIS HONOUR: Yes.

MR BRERETON: That letter informs him that he "may be liable for Visa cancellation", encloses relevant extracts from the Act under section 501 and, in fact, it encloses a then form of section 501, which is not the current form and not the form under which the decision was made.

HIS HONOUR: How does it materially differ, Mr Brereton?

MR BRERETON: In effect, it meant that the Minister - it was not an automatic satisfaction or failure to satisfy the character test in the event of a conviction. The Minister was required, under subsection (2), to be satisfied that a person is not of good character having regard to various things, but there was not an automatic failure to pass the character test on the account of any particular conviction.

HIS HONOUR: So it was a somewhat more liberal test, as far as an applicant is concerned.

MR BRERETON: That is right.

HIS HONOUR: Can you tell me, this was actually sent to him at a time when it had been amended, is that right?

MR BRERETON: No, your Honour, at this time it had - - -

HIS HONOUR: That was the legislation.

MR BRERETON: That was the current legislation at the time it was sent to him.

HIS HONOUR: Right. When did the change occur, Mr Brereton?

MR BRERETON: The first of June 1999, your Honour. If I do say anything wrong about the legislative history, I invite my learned friend to correct me if he - he is far more familiar with it than I am.

HIS HONOUR: Yes. So, he was actually sent the letter on 25 November, is that right?

MR BRERETON: Yes, your Honour, 1998.

HIS HONOUR: Right, thank you.

MR BRERETON: Now, the other thing I would draw attention to - there are a number of things to note about that letter. After enclosing the then form of section 501, it simply says:

You may wish to provide material to demonstrate why you should not have your vIsa cancelled.

In my submission, it is a fundamental proposition of natural justice that a person is entitled to know the case that is going to be made against them. This letter does not do that. It invites you, in effect, to show cause why the visa should not be cancelled whereas, in fact, the discretion was to cancel, not to withhold cancellation. Importantly, then, the letter goes on to say:

If your Visa is cancelled you will have the right of review of this decision to the Administrative Appeals Tribunal.

HIS HONOUR: What was the position with respect to the Migration Act at that time? Did it exclude AAT review at that time?

MR BRERETON: Only if - and I again invite my learned friend to correct this - in addition to a section 501 decision the Minister made a decision under then section 502 to make the person an excluded person. If that were done, then that excluded AAT review, but not otherwise.

HIS HONOUR: I do not quite understand that.

MR BRERETON: The Minister had a discretion under the then section 502 if thinking it was in the national interest so to do that, in addition to cancelling a visa, he could also declare the person concerned to be an excluded person and the effect of such a declaration would be to exclude the right of review to the AAT.

HIS HONOUR: So that this statement is erroneous or it is certainly incomplete, to put it at its best. It is probably erroneous but it is, in fact, incomplete.

MR BRERETON: In that respect, yes, your Honour, and as things transpired it was falsified by later events, even to the extent to which it was correct at the time. Now, some steps were taken towards correcting that but, in my submission, far from adequate. I should interpose this: if the decision under section 501 were made by a delegate of the Minister and not by the Minister himself, then there was, and still is, a merits appeal to the Administrative Appeals Tribunal. So, that letter was quite consistent with the decision being made by a delegate and there then would have been a merits review.

Now, the next matter on which the brief to the Minister relied was the interview on 4 February, the record of which is document 6 in the brief. At the second page of that which is stamped 43 in the bottom right corner, the then form of section 501 - - -

HIS HONOUR: Document 6?

MR BRERETON: Document 6, your Honour, I think, yes.

HIS HONOUR: Now I have it, yes.

MR BRERETON: The second page, 43 in the bottom right-hand corner. At the top of that page is set out the then form of section 501 and at the foot of the page - - -

HIS HONOUR: Sorry, page?

MR BRERETON: It is the second page of the document which is 43 at the bottom.

HIS HONOUR: Yes, "Section 501 of the Migration Act provides", yes.

MR BRERETON: Yes. Then, down the bottom of the page it is set out that the - at about point 6:

I believe that you may be liable for cancellation of that visa because of your actions coming within the scope of Section 501 -

and sets out the consequences. At the following page, and this is something that is apparently read to Mr Taylor at the time of the interview, he is told he does not have to answer questions but:

this is an opportunity for you to put your case. If you fail to answer, the Minister or the delegate may proceed with the decision -

Then, at point 4:

The Minister or delegate will also have regard to prison reports, the judge's sentencing remarks, probation reports, character references, or other information concerning yourself provided by the authorities or persons having an interest in your case. Any such information -

with an irrelevant exception -

will be put to you for your comment prior to being placed before the Minister or delegate.

That, your Honour, simply did not happen and none of the other material taken into account, the judge's sentencing remarks, the prison reports, and the like, none of them were put to him for comment before a decision was made. Your Honour is at least passingly familiar with the contents of the interview because your Honour has already asked me some questions about that and I need not cover that in detail, except to say that at nowhere in that interview is there the slightest suggestion that the case against him is raised. There is no suggestion made to him, "These are the grounds that we are looking at for exercising a discretion against you. These are the matters to which you need to respond."

HIS HONOUR: The strength of your case, Mr Brereton, already seems to lie in the misleading nature of the notification that was given to your client.

MR BRERETON: That is certainly part of it, your Honour.

HIS HONOUR: Why would not that be sufficient to grant you a right of relief?

MR BRERETON: In my submission, it would, your Honour, but I need to take your Honour to show what happened subsequently because - - -

HIS HONOUR: There was some correction.

MR BRERETON: There was a passing attempt made to correct that.

HIS HONOUR: Right.

MR BRERETON: Now, the next thing that relevantly happened was document 10 which was a minute from the case officer, Ms Speed, to the Deputy Secretary of the Department and it came before the Deputy Secretary on 31 May, and the Deputy Secretary has written a note in his handwriting:

I agree that this is a very difficult case and I am very concerned at the risk of recidivism. Given the landmark nature of a visa cancellation in relation to a permanent resident of 32 years standing, I believe this case should go to Minister for decision, preferably after an expected new policy instruction on S.501 is released.

HIS HONOUR: Had 501 been amended by then?

MR BRERETON: No, your Honour. The very next day, 1 June, and the policy instruction, I think, was also issued on 1 June. Now, following that, on 28 June - - -

HIS HONOUR: That would have been a reference to the - even an enactment, I suppose, of the new section 501.

MR BRERETON: One would think so, yes, your Honour. The very next page, document 11, is the attempted correction and that letter was sent, apparently, on 28 June. It said that "new section 501 legislation came into effect" and that a policy statement had issued. It purported to enclose a copy of the legislation and the policy statement but it is far from clear that that was, in fact, enclosed. There is nothing in the evidence to suggest that it was other than that the letter purports to do so but even that - - -

HIS HONOUR: There is no material from your client to say he did not receive that, or is there?

MR BRERETON: I will just check that, I think he - my learned friend says look at the next page. I will just come back and see what he says in this affidavit about that in a moment, your Honour, but the important point about this letter is that even if it did enclose the policy statement and the new version of section 501, it did not withdraw the representation that there was a right of merits appeal to the Administrative Appeals Tribunal. Indeed, there still could have been an appeal to the AAT if the decision had been made by a delegate and not by the Minister.

There is some reference in paragraph 12 of Mr Taylor's affidavit to this. He says that he received a telephone call from Ms Speed, that she said, "There have been legislative changes, do you know about them?". He said, "No". She said, "I have sent you a letter regarding the changes". He said, "I did not get the letter". Heidi Speed did not reply to that statement and continued with words to the effect, "You can expect to be placed in custody after your release". Then he says, yes, in paragraph 13, he says he received a copy of the letter of 28 June with attached legislation. So he did receive the enclosure, your Honour.

HIS HONOUR: Mr Brereton, there is no question of the application of the new section to the Minister's decision, is there?

MR BRERETON: No, your Honour.

HIS HONOUR: There is no question of retrospectivity, or anything like that. The decision is made under the legislation in force at the time of the making of the decision.

MR BRERETON: I think there is ample authority in respect of immigration decisions that that is so, your Honour. Now, that letter, as I say, did not withdraw the representation about a merits appeal, nor did it apprise him, yet again, of the case that was being made against him, so as to focus his mind in any way on the issues which were relevant for him to address.

HIS HONOUR: A better way to put it might be that there was no withdrawal of the representation that he would be given an opportunity to see whatever material was put before the Minister - and I am using a shorthand for that.

MR BRERETON: And in respect of that representation, that was never withdrawn or qualified in any way at all, your Honour.

My learned friend served an affidavit last night which exhibited a bundle of documents to it and from it we became aware for the first time of a file note which is page 4 in the bundle of documents addressed to - to Ms Markus' affidavit.

MR BEECH-JONES: I would like to file the original of that affidavit. I understand, your Honour, - - -

HIS HONOUR: All right, thank you. I do not know whether that has reached me.

MR BRERETON: It only reached me in Sydney at about 8 o'clock last night, your Honour.

HIS HONOUR: I think I do have it. What exhibit was it?

MR BRERETON: Document 4 in that bundle, your Honour, with the large document numbers in the bottom right-hand corner. That is Ms Speed's file note of the conversation on 28 July and in the third paragraph - - -

HIS HONOUR: Let me just read that.

MR BRERETON: Certainly, your Honour.

HIS HONOUR: Yes.

MR BRERETON: Now, so far as the third paragraph is concerned, your Honour, that was an accurate representation of the legal position before 1 June but it did not accurately state the position after 1 June. Before 1 June the Minister could decide to exclude him from an appeal under section 502. But after 1 June, exclusion, if the Minister made a decision, was automatic. So that the representation about the right of appeal was never in fact corrected. That, in substance, is the case on denial of natural justice.

I should say that there are supplementary complaints, essentially that the covering minute in the brief, the 21-page minute, in our submission, highlighted matters - I do not suggest it did not touch on matters favourable to Mr Taylor, it did, but it highlighted matters adverse to him. It referred to matters in the sentencing judge's report which were adverse to him and failed to refer to those comments which were favourable to him and, in particular, and on the critical issue, the sentencing judge had said that he regarded Mr Taylor, having had valuable assistance in assessing him from his...., he regarded him as having above average prospects of rehabilitation and for that very reason set a longer proportional additional term than he otherwise would have to maximise those prospects of rehabilitation. While those remarks were annexed to the brief, in the discussion on rehabilitation and recidivism, they were not referred to in the brief at all. And that was obviously something that Mr Taylor would have wanted to point out to the Minister. So that, your Honour, is, in substance, the case on natural justice.

HIS HONOUR: Yes.

MR BRERETON: So far as unreasonableness is concerned, your Honour and Justice Gummow, in the Court's relatively recent decision in Eshetu, have raised the issue of Wednesbury unreasonableness and Justice Gummow has explained in that case how, on various footings, it may well support relief under section 75(v) of the Constitution.

HIS HONOUR: What is the reference to that again, Mr Brereton?

MR BRERETON: Your Honour, that is The Minister for Immigration and Ethnic Affairs v Eshetu (1999) 73 ALJR 746, paragraph [126] in Justice Gummow and paragraphs [183] to [187] in your Honour's judgment.

HIS HONOUR: I did not take a view, did I, as to - - -

MR BRERETON: Your Honour did not. Ultimately, Justice Gummow did not either, because it was unnecessary to the decision in the case.

HIS HONOUR: I will see what Justice Gummow said. You would rely upon the matters you have referred to already with respect to natural justice for a contention that there was Wednesbury unreasonableness.

MR BRERETON: Yes, your Honour, but to these matters in addition. This man came to Australia at the age of 6 or 7 with his parents 32 years ago. His father came out to work in the gold mines at Kalgoorlie and then they settled in Gunnedah in New South Wales. He has lived in Australia all his life since 6, he has never been out of the country. He has no recollection of the United Kingdom, he has no remaining connection with the United Kingdom except a sister who, herself, is planning to emigrate. He has these matters against him but, aside from some fire arms offences which.....in the District Court, and it would seem the Minister thought to be completely irrelevant, nothing else. Sure, these are serious matters, but there is no other relevant criminal record. It is not as if he is an habitual criminal of any sort.

The sentencing judge said that there were good prospects of rehabilitation. His report on conclusion of his term in prison expressed a strong opinion that he was unlikely to re-offend, although a report was then prepared for the Department of Immigration which said that there was still a moderate risk of re-offence. There are a series of cases in the Administrative Appeals Tribunal which one does not rely on by way of authority, but as an illustration of the unreasonableness of this particular decision: a murderer, the Whisky-A-Go-Go murderer, Mr Sorenson, was not deported, essentially because of the length of time he had been in Australia. More recently, a person convicted of drug offences, notwithstanding that he did not pass the character test, was admitted into Australia, as a matter of discretion, to join his family here. I can refer to these decisions in more detail if necessary, but I do not propose to take time to do so at this stage.

Of very great importance, in my submission, is this: under section 93 of the Commonwealth Electoral Act, a copy of which I have provided to my friend - - -

HIS HONOUR: I think there was some provision about 1984. What do you say the effect of this is?

MR BRERETON: The legal effect is that a person who was a British subject permanently resident in Australia before 26 January 1984 is entitled to vote. That is, in effect, 93(1)(b)(ii), and he is such a person.

HIS HONOUR: What turns on that?

MR BRERETON: The practical effect of that is it shows that he has been completely absorbed into Australian society to the extent that, not only as a matter of practice, that he has always resided here and has all his - - -

HIS HONOUR: It does not show that at all. It shows that he is given a special statutory qualification to vote, even though he is not an Australian citizen. Is that not what it shows?

MR BRERETON: It shows he is, with respect, the closest possible thing to an Australian citizen without having gone through the formality of actually acquiring citizenship and he explained in his interview that the only reason he did not apply for citizenship was he did not know he had to. He did not realise he was not a citizen until these matters arose while he was in gaol.

HIS HONOUR: I have some sympathy with that view, and I said as much in Sue v Hill. People need to know what their position is.

MR BRERETON: In those circumstances, in my submission, at least an arguable case can be made out that this decision was manifestly unreasonable, but there is a very clear cut case, in my submission, that there was a contravention of the rules of natural justice which, plainly on the face of the statute, applied to the decision and it is because of the clarity of that denial of natural justice that your Honour, in my submission, would consider making a rule absolute in the first instance, but at least a rule nisi.

HIS HONOUR: There is a case that might help you, Mr Brereton, The Queen v Secretary of State for Wales, Ex parte Green (1969) 67 LGR 560. It is a divisional court in which it was held that a misleading notice may be as bad as no notice at all when it was a misleading statement - perhaps somebody could get that case - a misleading statement from a local authority with respect to the holding of a public inquiry.

MR BRERETON: Did your Honour say Green or Breen?

HIS HONOUR: Green. It is referred to in a Queensland case, a Full Court decision in Queensland, which also is helpful, I think. It is Queen v Muir & Others, Ex parte Joyce (1980) Qd R 567, which also turned upon a misleading statement that had been made to an employee, in fact.

MR BRERETON: My learned junior will see if we can turn them up, your Honour. There are a couple of cases on ambiguity of notices as well which - - -

HIS HONOUR: Green is not referred to - what text are you looking at?

MR BRERETON: I am looking at Forbes on Disciplinary Tribunals which covers this territory in many respects, but I cannot immediately see a reference to either of those two cases.

HIS HONOUR: It was a divisional court.

MR BRERETON: There are certainly plenty of cases which make clear that the notice has to be precise and give a clear indication of, as it were, the charge or the substance of the case being relied on.

HIS HONOUR: You are a little bit stronger than that, perhaps, on the basis that you were given a misleading notice.

MR BRERETON: Yes, your Honour. We will see if we can find those authorities. Subject to that, those are my submissions.

HIS HONOUR: Thank you. Mr Beech-Jones, I am not persuaded that this is a Wednesbury unreasonableness case but I am certainly not persuaded to a degree where I would make a final order, an order absolute. At the moment I would be disinclined to make an order - even an order nisi on the grounds of unreasonableness, but what Mr Brereton has submitted with respect to the misleading notices, I would like to hear you on that particularly.

MR BEECH-JONES: Thank you, your Honour. Can I just raise two matters at the outset. Firstly, the question of the proceedings in the Federal Court, my friend proffered a conditional undertaking that it was to the extent necessary. Your Honour, we would submit that your Honour should not entertain it until an unconditional undertaking is given because - - -

HIS HONOUR: I was going to ask you that, and perhaps I should have asked Mr Brereton too, but what, if anything - as I understood Mr Brereton's submissions, he was really - I do not say conceding, but he came close to conceding that he could not get, in the Federal Court, the relief that he might be able to get here, because of the absence of merit review, I think, substantially. Is that right, Mr Brereton?

MR BRERETON: Judicial review in the Federal Court now being limited to in effect - - -

HIS HONOUR: Certain errors of law.

MR BRERETON: - - -certain errors of law, I accept that the - in particular, natural justice is excluded and Wednesbury unreasonableness is excluded as grounds for review on which the Federal Court can act.

HIS HONOUR: Yes. One thing that crossed my mind was the possibility of remitter, but I do not think there is anything I can or should remit.

MR BRERETON: I gather the Minister introduced another bill yesterday, your Honour, in which the Minister was expressing - or was indicating that the jurisdiction of the Federal Court was to be further confined and that the ability of this Court to remit to the Federal Court was also going to be further confined.

HIS HONOUR: It is almost an invitation to get in very quickly. Is there anything I can or should remit to the Federal Court in this matter?

MR BEECH-JONES: I do not suggest your Honour should undertake remitter because - can I just answer that by this, your Honour: clearly he cannot run these grounds in the Federal Court but what he does have on at the moment is an application for the same relief. So what we have at the moment is two sets of proceedings seeking the same relief, that is the quashing of the decision - - -

HIS HONOUR: All right. I will not ask Mr Brereton to give an unqualified undertaking at the moment, but can we come back to that matter.

MR BEECH-JONES: Can I just indicate the vice of that, because if, say, Mr Brereton was not successful and they have not given the undertaking, they will then have had their High Court cake and been able to eat the Federal Court cake as well, as opposed to making the choice.

HIS HONOUR: Except there is no cake there, is there?

MR BEECH-JONES: Well, depending - there may be come other ground, I do not know. I mean, it is a rough application. He can always amend, but we submit the vice - it is clear that they are different grounds but the vice is that the same relief is being sought in two forums at two different times and Justice Gaudron took that view. Now, if it becomes necessary, I can take your Honour back to that.

The second problem, your Honour, is this question of orders absolute at the first instance.

HIS HONOUR: I will not make orders absolute.

MR BEECH-JONES: Right. Then, your Honour, perhaps - - -

HIS HONOUR: Except - I am sorry, I might refuse completely, and in that sense it is - - -

MR BEECH-JONES: Yes, well dismissal of the order nisi, but your Honour, if your Honour is persuaded that there is something in either of the two grounds, particularly the natural justice ground, I would ask your Honour not to deal with it absolute. Can I just perhaps indicate one reason why. My friend took your Honour to that file note of Ms Speed's. I actually do not know if the prosecutor does or does not deny the conversation in those terms and, as we are at an interlocutory stage, we did not think it was appropriate to have - - -

HIS HONOUR: I am strongly disinclined to make final orders.

MR BEECH-JONES: Just in relation to the natural justice ground, there are a couple of points that my friend relies on. Can I take your Honour back to that letter of 28 November which is - I think it is document 2. Now, your Honour, the letter - my friend conducted a very persuasive criticism of the letter. Could I just point out a couple of matters concerning - - -

HIS HONOUR: Wait till I find document - yes, I have that, thank you.

MR BEECH-JONES: Firstly, in so far as one talks about invalid notices, of course these letters are not letters prescribed by a statutory scheme. Secondly, the statement in the second paragraph:

You may wish to provide material to demonstrate why you should not have your visa cancelled -

in my submission, does not contain any - even if his proposition that you are entitled to know why it is it is proposed to cancel your visa, does not contain some inherent flaw. What is wrong with asking the question in those terms? Then the last paragraph:

If your visa is cancelled you will have the right of review of this decision to the Administrative Appeals Tribunal.

Clearly, that left out the possibility of the Minister exercising his power under 502, as it existed at that time, but we would submit otherwise it was a correct statement of the law then. But more importantly, that is not a statement about the manner in which the power will be exercised. Even if it be wrong, and the totality of what was told to the prosecutor be wrong about appeals to the Administrative Appeals Tribunal, it was not a statement as to how the Minister was proposing to exercise the power, only about his rights of review after the Minister exercised his power. We would submit, for that reason, it is not something that affects the validity of the exercise of the power.

My friend's statement - part of my friend's point on that is that this statement was not corrected when, from 1 June, the matter was referred to the Minister and the legislation then provided that if the Minister made the decision, there would be no merits review. Now, factually, our answer to that is Ms Speed's file note, which was the document I think my friend also took you to, and I referred to shortly, which records that:

At the time the Minister makes the decision, he could also decide to exclude him from lodging an appeal -

that is the prosecutor, and my friend says that is not a correct statement of the law because the law by that stage was if the Minister makes the decision, there is no merits review. But we would submit its import was clear, that is you are in real jeopardy of not having your merits review, and the prosecutor is being told this at a time prior to the exercise by the Minister of the power. So we would submit the position, that is that there is a likelihood that he will not have the ability to lodge a merits appeal, was something that was corrected. So therefore, your Honour, we would submit, even though that was not perhaps a perfect statement of the legislation, what it conveyed to the prosecutor was what was necessary, that is there was a jeopardy of him losing his merits review rights and, secondly, that whatever was said was not a statement about the manner of the exercise of the power.

The second limb of my friend's argument which we would - - -

HIS HONOUR: Do you say, Mr Beech-Jones, that there was actually a correction - a sufficient correction of any misstatement?

MR BEECH-JONES: Yes, your Honour, we would submit a sufficient correction in the sense that he knew then that he would not necessarily get the opportunity to lodge an appeal.

HIS HONOUR: That document is?

MR BEECH-JONES: Page 4 of the exhibits to Mr Markus' affidavit.

HIS HONOUR: And the correction is?

MR BEECH-JONES: The correction is that - what it conveyed to the prosecutor was that the Minister was making the decision and the result could be that you would be excluded from lodging an appeal.

HIS HONOUR: The Minister says, "He could also decide to exclude".

MR BEECH-JONES: Yes, your Honour.

HIS HONOUR: Could the Minister have decided that, or was that a matter that automatically followed from the amended legislation?

MR BEECH-JONES: It is a matter that automatically followed from the Minister agreeing that he would be the person that made the decision. So that my friend says, look, that is not an accurate reflection of the legislation, and I accept that in the sense that it conveys what the position was under the old law, under the old 501, 502 - - -

HIS HONOUR: The Minister could decide two things, could he, under the new Act, that he himself could and would be the decision maker, and then he could make the decision. And if those two conditions were satisfied, then there would in fact be no appeal, is that right?

MR BEECH-JONES: Yes, your Honour, but he could also say, "Oh, no, get a delegate to decide it", knowing - it comes up to him from the relevant officer.

HIS HONOUR: If the delegate decides it, is there - - -

MR BEECH-JONES: There is AAT review.

HIS HONOUR: But might not an applicant want to put a submission that the Minister ought not to decide it in order that the applicant might then have the benefit of a review?

MR BEECH-JONES: An applicant might want to do that, your Honour, I accept that, but that - - -

HIS HONOUR: That is the vice in this statement, is it not, that it would not indicate to a recipient that there might be an opportunity of a review if the Minister could be persuaded not to make the decision himself?

MR BEECH-JONES: I accept that, your Honour, but we are looking at this from my friend's attempt to vitiate the decision that was actually made by the Minister. And as I understand it, what is said is, because the prosecutor thought because I have got a merits review in the AAT which I will exercise, I am not going to put all my submissions forward. Now, what we would submit is once he had that conversation - - -

HIS HONOUR: He knew that he was at risk as and from this conversation of not being able to present another case elsewhere.

MR BEECH-JONES: On appeal, yes, your Honour, that is what we would submit would follow from that conversation. Your Honour, the other representation or statement that my friend points to is that set out at the beginning of the interview, which is document - I think it is document 5.

HIS HONOUR: Is that document 5 in the - - -

MR BEECH-JONES: In the prosecutor's solicitor's affidavit, I think it is. It is either that or document 6, sorry, your Honour. On page 44 in the bottom right-hand corner, in the middle of that page, my friend emphasised the statement that if the Minister has regard to reports and matters of that kind they:

will be put to you for comment prior to being placed before the Minister or delegate.

Then he says, "Well, that was not done and, therefore, we have a breach of the rules of natural justice." Now, that is prefaced on this proposition that Ms Speed actually said these things to him. I mean, this is a standard form and I can frankly tell you I just do not know, at this stage, whether she did say that or not, but at an order nisi level, I think my friend is entitled to get over that threshold.

Now, in terms of that and the factors the Minister would take into account when exercising the power, your Honour, we note that what the prosecutor was sent in addition to the legislation was a copy of the guidelines which commence at page 7 of exhibit AM1 to Mr Markus' affidavit. Your Honour, what we sought to do was to put the guidelines as an annexure to the exhibit but I have just noticed that the guidelines that are annexed are for the exercise of the criminal deportation power under section 200 and 201. The prosecutor never says he did not et the guidelines and, indeed, what he said in his letter was, "Thank you, I have read all the material".

The guidelines contain an indication of the factors that will be taken into account, that is, risk of recidivism, impact on the community - matters of that kind. Now, what the matter then resolves down to is this. We submit that the factors in the exercise of discretion were brought to the prosecutor's attention by the sending to him of the guidelines and the question then becomes, did we have to go the step further and bring to his attention what our particular assessment was under each of those factors? If the answer to that is arguably, yes, then I would concede that to that point an order nisi should issue, but if the answer to that question is clearly no, then the order nisi should be dismissed.

HIS HONOUR: The trouble is, Mr Beech-Jones, that even if you are under no obligation to do that - tentatively, I think, you may not have been - the difficulty lies in the statement which one might assume was made, that he would be provided with any such information, except for non-disclosable information, in order to enable him to comment on. You may have been doing more, perhaps, than you were obliged to do but the trouble is, if you do more - - -

MR BEECH-JONES: You take the consequences.

HIS HONOUR: You might have to take the consequences.

MR BEECH-JONES: Well, your Honour, if there is an arguable case that the statement was made, then there is nothing more I can point to in relation to that ground at this stage.

HIS HONOUR: All it seems to me, and this may be a problem, that there are a couple of outstanding factual matters which may be relevant to the - - -

MR BEECH-JONES: Yes, your Honour.

HIS HONOUR: Certainly, they would be relevant on a consideration of whether an order absolute should be made or not, because you say they have some relevance. Just how much relevance they have, I do not know but, obviously, they have, arguably, some relevance.

MR BEECH-JONES: Yes, your Honour, relevance would be governed by the grounds upon which your Honour lets the order nisi go forth, of course.

HIS HONOUR: Say I were to let the order nisi go forward on the basis that there is - say I were - a prima facie case of a breach in the rules of natural justice by reason of the misinformation, as it were, or what turned out to be a misrepresentation of the position - - -

MR BEECH-JONES: We would then put on an affidavit from Ms Speed which - we would then consider an affidavit. I have to tell your Honour I have not spoken to - - -

HIS HONOUR: No, I understand you. This has come on at very short notice and it has not been easy for you.

MR BEECH-JONES: But I think that is my understanding of how the procedure works.

HIS HONOUR: Well, it is. You would certainly be entitled to do that although we try to avoid deciding factual cases now. It might be a terrible risk letting me decide a factual case. I have never decided a question of fact.

MR BEECH-JONES: His Honour has argued enough factual cases; I am sure your Honour is more than capable of resolving those.

HIS HONOUR: What would the factual questions be? The factual questions would be precisely what, either in writing or orally, was notified by officials in the department to the applicant - is that right?

MR BEECH-JONES: That is right. Arguably, you could cross-examine the prosecutor, though, as to - - -

HIS HONOUR: Yes, on his material.

MR BEECH-JONES: As to what matters he was on notice of and if there is a dispute as to the oral notifications.

HIS HONOUR: I could remit those factual questions to the Federal Court, could I not? I think I can do that under the Judiciary Act, can I not?

MR BEECH-JONES: I do not know the answer to that question. I do know this, your Honour, that Mabo was remitted - - -

HIS HONOUR: It was remitted to the Supreme Court, Justice Moynihan presiding.

MR BEECH-JONES: Just solely on questions of fact. That is the only case I am aware that that has, in fact, occurred.

HIS HONOUR: It would probably be convenient, or it may be convenient, that Justice Beaumont hear them, but it may not be.

MR BEECH-JONES: Your Honour, it may be that the question of remittal might be more appropriate once an order nisi is issued and once we file affidavits and it is known what the dispute is.

HIS HONOUR: What I think I would have in mind, if I were to grant any relief, is to try to define with some precision the legal questions that arise and, for that reason, I would like the matter, if it does come to the Full Court - High Court, to come on as precise a basis as possible with all possible factual issues resolved. .....the remitter provision.

MR BEECH-JONES: Section 44.

HIS HONOUR: Your client, he is in New South Wales, Mr Brereton?

MR BRERETON: Yes, your Honour.

HIS HONOUR:

or any part of such a matter, may, upon the application of a party or of the High Court's own motion, be remitted.....to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties - - -

MR BEECH-JONES: That may be the problem, your Honour, because the Federal Court, and this comes back to the meaning of the word "matter", the Federal Court may not have jurisdiction with respect to the subject matter because of the very grounds that we are discussing.

HIS HONOUR: I suppose in Mabo the Supreme Court had invested jurisdiction and federal jurisdiction without any - - -

MR BEECH-JONES: That was a land claim and then they could decide land ownership questions in Queensland.

HIS HONOUR: Yes. I am wondering whether it might be premature for me to make any orders nisi until this factual question is resolved. An interlocutory injunction would protect your client's position, Mr Brereton, would it not?

MR BRERETON: That would protect his position in the meantime, your Honour, but, in our submission, the potential problem is this. In my submission, remitter is not appropriate for two reasons. One, there is no court having jurisdiction in the matter to which it can be remitted, so that is a huge jurisdictional impediment. But secondly, that the scope of any factual dispute, on what is apparent at this stage, is unlikely to be very large. There may be room for some dispute about a conversation or two, but it is hardly likely to be a large dispute and to have - - -

HIS HONOUR: That is one of the reasons why I am contemplating the course I am, that it may be that there is no dispute at all, that there is an agreement.

MR BRERETON: But if there were a dispute, it could not be resolved by your Honour dealing with the matter on an order nisi basis. It would ultimately have to be resolved by the Court hearing the application for an order absolute. Your Honour could not make findings of fact which would thereafter bind the Full Court.

HIS HONOUR: No, but you are right - well, I could make final findings of fact subject to your obtaining a grant of special leave to appeal to the High Court and the High Court reversing me on findings of fact. I would have jurisdiction to find the facts.

MR BRERETON: For the purposes of founding or rejecting an order nisi, yes.

HIS HONOUR: If I made findings of fact that were against either party then either party could apply for special leave to appeal - - -

MR BRERETON: With respect, no, for this reason. The appeal would be not from the findings of fact but from whatever order your Honour made.

HIS HONOUR: No, it would be from whatever order but it might - - -

MR BRERETON: And because your Honour would make an order nisi, the order absolute would be immediately before the Full Court without any application for special leave to appeal.

HIS HONOUR: But there could be an application for special leave made concurrently with the application for - well, the application for special leave could be, if I made an order nisi, to appeal against the making of the order nisi and any facts would then be canvassed which might have led to that, if there were any factual error. If, on the other hand, I were to refuse the order nisi on the basis of factual findings that were made, then you would have a right to apply for special leave to appeal against my finding that there should be no order nisi.

MR BRERETON: Yes, with respect, I think that is - - -

HIS HONOUR: The usual course, or the course that everybody talks about, and I have only ever struck it once in my own career, was that the theory is you can go round from judge to judge trying to persuade different judges that you should have an order nisi. I tried it once, unsuccessfully, I regret to say.

MR BRERETON: Fly down to Melbourne tomorrow and back to Sydney the following day.

HIS HONOUR: But I think the rights would still be there, but it would not be difficult to discern that I am very anxious not to embark upon a trial of any factual questions. My current inclination, and I will give you both an opportunity to make a submission against it, is to reject your application, Mr Brereton, so far as it seeks relief on Wednesbury unreasonableness grounds, subject to the factual questions which I am concerned about, to grant you an order nisi on the grounds of breach of rules of natural justice on the basis of a possibly misleading nature of the information that was conveyed to your client.

But I do not even want to take that step without giving Mr Beech-Jones the opportunity to present material, or rely upon material, if he can, that might show that any misrepresentation, and you know the sense in which I mean that - I do not mean it in any pejorative sense - but that any misrepresentation was sufficiently corrected. It may be that I do not even have to decide that factual question. It may be that there is no dispute as to what the official said or wrote, in which event it would be for the Full High Court to decide whether what was done amounted to a sufficient correction or not.

MR BRERETON: Your Honour, as I understand it, my learned friend has raised two possible errors for factual dispute. One is whether a statement was, in fact, made in accordance with the written formula at the beginning of the interview - - -

HIS HONOUR: I understand what you are going to say about that and even if it was not made, that will not avail in any way because if it was not made, something should have been made to correct the earlier misstatement. If it was made, then you rely upon the submissions as to its misleading nature anyway. So, you are quite right, that may not be a factual question.

MR BRERETON: The second factual matter to which my learned friend adverts was, in essence, whether there was a controversy over Ms Speed's file note of the conversation of 28 July. Now, as I understand it, he put, and correctly, that we do not yet know whether there is a controversy because we have not had an opportunity to get instructions from the prison since 8 o'clock last night, but even if there were no controversy and, indeed, I have presented my argument on the basis of accepting what is in Ms Speed's file note, even if any controversy were resolved adversely to me and the conversation were found to be in accordance with Ms Speed's file note, that conversation, in the terms in which she reports it, did not correct the situation. If that submission is correct, then, really, there is little point in - - -

HIS HONOUR: Except I think he has a better argument on that than he has on the first matter that we just discussed. I would not like, as it were, to rule him out on that, or not give him an opportunity of relying upon that.

MR BRERETON: Well, your Honour, in my submission, the appropriate way of dealing with that is to grant the order nisi, direct him to file any affidavits dealing with that issue which he wishes to, and if there is an issue of fact, and there may well not be, but if there is an issue of fact, that will be resolved fairly speedily before the Full Court.

HIS HONOUR: The Full Court, certainly, are not going to hear evidence, I can assure you of that. It is most unlikely that the Full Court - - -

MR BRERETON: I did try to cross-examine on a special leave application once and I received fairly short shrift that - - -

HIS HONOUR: I think I cross-examined in that case of Muir, actually, in the Full Court but the High Court is highly unlikely, I think, to accede to any trial of fact in current times.

MR BRERETON: Well, one can well understand that, your Honour, except that the Court has been placed, by legislative design, in a position in which, in accordance with the rules of natural justice as they affect the Court, it may have no option but to do that.

HIS HONOUR: Yes, thank you, Mr Brereton.

Mr Beech-Jones, I am very much inclined not to make orders of a kind that will go to the Full Court whilst any factual issue is outstanding. Now, I made a clear intimation of what my inclination would be with respect to an order nisi, but I do not want any loose factual ends at all. That is not said in any way in reproach to you because you just have not had time to deal with them. My inclination is really to grant an interlocutory injunction or, indeed, an interim injunction, that is to say returnable within a specified time before me, with a direction that there be any further affidavits filed within a certain period so that then, assuming there is no significant change in anything, clear points can go up to the High Court.

MR BEECH-JONES: Could I just say on that, the need for the interlocutory injunction, that there is absolutely no intention to remove Mr Taylor pending the resolution of any - - -

HIS HONOUR: So, you would give an undertaking - - -

MR BEECH-JONES: Yes, your Honour, indeed.

HIS HONOUR: I should have asked you about that. I should have assumed that you would probably do that.

MR BEECH-JONES: We do, perhaps, need to resolve what is going to happen with the Federal Court proceeding in the meantime because it is listed for hearing on 5 April. I am in your Honour's hands as to - - -

HIS HONOUR: How long do you think you would need to get instructions and put on an affidavit?

MR BEECH-JONES: Your Honour, we are not sure where Ms Speed is, but assuming she is otherwise contactable, we would really ask for two weeks and we could put her affidavit on.

HIS HONOUR: The parties would make an endeavour to agree - it may turn out that there is no dispute about this at all.

MR BEECH-JONES: It may be that, your Honour. The other thing is though, your Honour, we do need to be clear that what we are proceeding upon is the grounds that your Honour has foreshadowed that you would grant the order nisi on. We are not going to prepare an affidavit addressing questions of unreasonableness that, arguably, we could - - -

HIS HONOUR: I think I will dismiss the application today so far as it relates to the ground of unreasonableness.

MR BEECH-JONES: Then, your Honour, within fourteen days we could put on an affidavit from - and I think it would be only from Ms Speed. I cannot at the moment think, unless somebody else said something, but it would be Ms Speed and that would leave outstanding the natural justice ground.

HIS HONOUR: Now, I would hope that the factual questions could be resolved. If they cannot be, the matter had better come back before me to decide what I am going to do, how I am going to resolve it.

MR BEECH-JONES: Yes, your Honour. I do have a recollection, and again, I think, because it has only come up the last two years, that there have been cases where trials have been before the Full Court and fact finding may have been, and I am not sure under what provision, delegated to a single Judge.

HIS HONOUR: That is what happened in the DOGS Case, the Defence of Government Schools, I think. I do not think Justice Murphy ever made a decision but he sat on it for months and months, but that is - - -

MR BEECH-JONES: It was the facts about what church activities they did at a particular school.

HIS HONOUR: Yes, but, you know, that is undesirable with the pressure of work on the Court now. We seem to have so many cases now where we have to sit seven, and it is very inconvenient that a single Judge be taken off the High Court. Even when we are sitting five, there is a lot of pressure, so it is not really a very serious option.

Mr Brereton, it is obviously very inconvenient for you to have to come up here, but it may be necessary - I do not want to pass this on to some other Judge now. It is obviously undesirable. I suppose I might be able to sit in Sydney at some stage. Mr Beech-Jones, are you in Brisbane?

MR BEECH-JONES: I am in New South Wales as well, your Honour.

HIS HONOUR: You come up for this, yes. Sorry, Mr Brereton.

MR BRERETON: I was simply going to add that, your Honour. Of course, if it is necessary to meet the convenience of the Court, we will do so. I should say that my client is not in a position to fund anything.

HIS HONOUR: He is a bankrupt, is he not?

MR BRERETON: Yes, well, I am not sure about bankrupt, your Honour, but - - -

HIS HONOUR: Some of the papers say he is bankrupt.

MR BRERETON: He is certainly not paying anyone to appear for him, so it is a financial, as well as other, burden to come to a State which we would otherwise happily visit. The other option, your Honour, which is not too far away and not nearly so difficult, is Canberra. If the Court is sitting in Canberra, then to travel down there is a much easier matter if your Honour is going to be there in any event.

HIS HONOUR: All right, but even that may not be necessary. 18 April, that is a month away, but is that too long, Mr Beech-Jones, for your requirements?

MR BEECH-JONES: It is not too long, your Honour. I think it is really a matter for agreement and I think I must say that my inconvenience is probably the lowest priority of anyone. My friend is acting pro bono and the Minister can always get somebody else. To my recollection, I am available, but we can have Ms Speed's affidavit on within 14 days.

HIS HONOUR: Mr Brereton's client gets charged for accommodation, does he not?

MR BRERETON: Yes, he is charged $192 per day, your Honour, as I understand it, and your Honour will appreciate that he has served his sentence, he has been released. He has now been placed, not in an immigration detention centre, but returned to high security.

HIS HONOUR: Well, there is nothing I can do about that.

MR BRERETON: No, I understand, and there is nothing we can do in the interim, as I understand the legislation.

HIS HONOUR: But I was just saying, a month at the taxpayer's expense probably. Anyway, I do not think that can be helped.

MR BRERETON: Well, I am in your Honour's hands.

HIS HONOUR: Mr Brereton, do you accept that the test of unreasonableness is a decision that no reasonable decision maker could have made, that it is so unreasonable that no reasonable decision maker could have made it?

MR BRERETON: Yes, your Honour.

HIS HONOUR: All right.

This is an application for prerogative writs. The applicant was convicted, on his own plea of guilty, of eight serious offences of a sexual nature. He was sentenced to a term of imprisonment of six years in the District Court of New South Wales on the eighth day of February 1986. He served three and a half years of that term, after which he was admitted to parole. After he was admitted to parole, the Minister for Immigration - is that the correct title?

MR BRERETON: And Multicultural Affairs.

HIS HONOUR: and Multicultural Affairs, in reliance upon section 501 of the Migration Act (Cth) made a decision to cancel his visa. That decision was made after various communications to the applicant by officials in the Minister's department, and after the applicant was given some opportunity to persuade the Minister that his visa should not be cancelled.

The applicant has lived in Australia for a long period, for more than 30 years, and his mother, as well as other members of his family, are also living in Australia. He does, however, have a close relative in England whom he has not seen for some time. He emigrated to Australia from the United Kingdom when he was about seven years of age.

Gentlemen, if I misstate any facts, I would be grateful if you would draw them to my attention.

The application before me relies on two grounds: breaches of the rules of natural justice and what has been called Wednesbury unreasonableness. I propose to say something about the latter ground first.

I have read all of the material which was before the Minister and, assuming that reliance may be placed upon the Wednesbury principle in applications of this kind, I would none the less dismiss the application to the extent that it relied upon, or indeed, I would dismiss the application if it relied exclusively upon the so-called Wednesbury ground. The parties are agreed that, in substance, the test is whether a decision which had been made can be characterised as one which no reasonable person could make. Even taking into account the matters upon which the applicant relies to found his application that the rules of natural justice have been infringed, I do not think that the Minister's decision in this case could possibly be so regarded. Whether that formulation be correct or some other is to be preferred I do not think that the applicant has established a case of unreasonableness.

The submission on behalf of the applicant that the rules of natural justice have been infringed relies essentially upon two occasions which involved what might be viewed as a misstatement as to the applicant's rights, including a statement to him that he would be given an opportunity of seeing and dealing, in effect, with such material as might come to the attention of the Minister. With respect to those matters, I intimate to the parties that I am of the view that there is an arguable case sufficient to provide a ground for a grant of an order nisi. Misstatements of not dissimilar kinds were relied upon to support grants of prerogative writs in R v Muir and others; Ex parte Joyce [1980] QdR 567 at 579 and R v Secretary of State of Wales; Ex parte Green (1969) 67 LGR 560. However, I refrain from actually making an order nisi today because the application has been brought before me urgently and the respondent has not had an opportunity of giving consideration to some factual questions which are raised, to which the respondent might have an answer, and which might affect the outcome of the application. I think that the respondent should have an opportunity to deal with those matters.

The respondent has offered an undertaking not to act, in effect, in any way upon the cancellation of the visa - - -

MR BEECH-JONES: Perhaps not to remove him from the country - - -

HIS HONOUR: I correct that. The respondent Minister has offered an undertaking not to remove the applicant from the country pending any further order of the Court.

If I were to make an order nisi, I would want to make it upon grounds as precisely defined as possible and upon the basis that there are no further factual questions outstanding.

In those circumstances, I am minded simply to adjourn the matter today without making any formal orders, that is adjourn the matter until 18 April next in Sydney at 2.30 in the afternoon.

I would direct that the parties file any further affidavits seven or more days before 18 April next.

Gentlemen, I probably would want to revise those reasons somewhat and I will probably make some reference to authority, but - - -

MR BRERETON: Your Honour, the only factual matter which I was going to raise, your Honour refers to the applicant's remaining relative or close relative in the United Kingdom. She, herself, the evidence shows, has expressed that intention - - -

HIS HONOUR: I know that, but she is currently - I was conscious of that. She is currently in the United Kingdom. That is right, as an absolute fact, is it not?

MR BRERETON: Yes, your Honour.

HIS HONOUR: I may add some additional matters, but I wanted to give you a clear indication of my thinking on the matter. The thrust of what I am trying to say to you is I really do not want any factual loose ends, if that is at all possible.

MR BRERETON: I understand, your Honour.

HIS HONOUR: I am not adjourning the matter to 18 April in any expectation that I will be sitting to hear disputed factual questions. But if there are disputed factual questions, we will have to decide then how we are going to deal with them.

MR BEECH-JONES: Your Honour, could I just raise two matters. The question of the Federal Court proceedings is still in limbo. My friend's offer at the beginning was "to the extent necessary". I would ask that your Honour require that there be an undertaking that they will be discontinued. Otherwise, they are due to be heard in early April.

HIS HONOUR: Justice Beaumont will no go ahead and hear them, surely, in view of the intimations I have given. Would it not be sufficient for your purposes if Mr Brereton were to give an undertaking to seek to have those proceedings adjourned. I just do no want - unless Mr Brereton is prepared to discontinue them.

MR BRERETON: Your Honour, as I indicated at the outset, if as a condition of relief in this Court - and by that I mean an order nisi - your Honour were to require such an undertaking, I would give one. I would prefer not to at this stage, simply because I want to sit down and look at the matter in the light of what your Honour has said about unreasonableness. In the light of the Federal Court's jurisdiction, the last thing we want to do is to trouble this Court with grounds that are within the jurisdiction of another court and, for that reason, I would like to reserve to myself, at least until we come back to your Honour on 18 April, an opportunity to review that situation.

HIS HONOUR: There is no problem about your seeking an adjournment of the proceedings before Justice Beaumont.

MR BRERETON: I would not have thought so, your Honour.

HIS HONOUR: You would give any undertaking to do all things that might be reasonably directed to that end to seek an adjournment.

MR BRERETON: What about that, Mr Beech-Jones?

MR BEECH-JONES: Your Honour, the difficulty is that- the difficulty of the approach is my friend is saying if we get an order nisi, if it is a condition of order nisi we give an undertaking, then we will give it, but - - -

HIS HONOUR: I just have not given him an order nisi yet.

MR BEECH-JONES: But it strikes at the heart because what he is saying is, if we are going to get relief here, then we will stop down there, but really the fundamental point is that the maintenance of the two proceedings is the abuse.

HIS HONOUR: I know what you are saying, but this is the problem, Mr Beech-Jones. At the moment, I have not given him any relief, not even an order nisi, and I have not heard - and I do not regard myself as being in a position to decide - that there is nothing that he can get in the Federal Court. I think probably there is nothing, but that is not the issue before me and I do not like to shut him out. See, there is no reason why we should assume that Justice Beaumont would give him any relief if he is not entitled to it, anyway.

MR BEECH-JONES: It really is the vice of pursuing the two cases at the one time.

HIS HONOUR: If and when I make an order nisi, as is likely, I would ask him for an undertaking then. But I know what you say, that this matter is imminent before then.

MR BEECH-JONES: But, your Honour, in one sense he should give it before he asks, because what if your Honour dismissed it? What if your Honour had dismissed it today? He could have gladly bowled back down before Justice Beaumont, knowing he has had his go in the High Court - - -

HIS HONOUR: What he said to me today is that he does not think he has any hope on any of these grounds in the Federal Court and why would he say anything different before Justice Beaumont.

MR BEECH-JONES: There may have been another ground.

HIS HONOUR: If there is another ground, why should I shut him out from that?

MR BEECH-JONES: He has to make - - -

HIS HONOUR: He does not really have to make an election at all. He comes here, he says, on the basis of a constitutional right to come here, in effect, seeking what I think Justice Gaudron calls a "constitutional writ", not prerogative writ.

MR BEECH-JONES: Yes, but, your Honour, Justice Gaudron looked at this in one case. At the time you are doing that, you cannot be seeking the same relief - not the same grounds but the same relief - in another forum. You really have to make an election. That is what we submit is - - -

HIS HONOUR: Her Honour probably granted an order nisi, did she, in that case?

MR BEECH-JONES: What her Honour did was directed that both proceedings be stayed until an election was made and stood the proceedings over. Then they wandered through the courts. It was Durairajasingham which Justice McHugh finally dealt with - - -

HIS HONOUR: Yes, I have seen that. Mr Brereton, is it the fact that you have relied upon the same grounds in the Federal Court?

MR BRERETON: Absolutely not, your Honour. We cannot rely on these grounds in the Federal Court.

HIS HONOUR: What grounds are you relying on in the Federal Court?

MR BRERETON: The application was drafted by Mr Taylor in person. It is exhibited to my learned friend's instructing solicitor's affidavit and at page 20 of that exhibit the grounds are stated to be failure to take into account all relevant considerations, taking into account irrelevant considerations, there is a reference to procedural unfairness in the application, but that just cannot be relied on in the Federal Court. It is a matter of statute.

So the application as it is framed at the moment relies on relevant factors and irrelevant factors, and those matters are also excluded from the Federal Court's jurisdiction under section 476.

HIS HONOUR: So you would really have to - if you were going to seek any relief, you would either have to amend or start over again.

MR BRERETON: Yes, your Honour.

HIS HONOUR: What order do you say I should make, Mr Beech-Jones?

MR BEECH-JONES: That he should undertake to discontinue the Federal Court proceedings within seven days because, your Honour, the really critical part is the next page where the applicant claims an order that "The cancellation order be set aside or revoked." That is, in effect, the relief claimed here. So at the one time he is seeking - and he also has a similar one for effectively habeas corpus, so simultaneously he has the two - he is attacking the decision in two different courts. It may be that he has got grounds there that he cannot run, but he can always go to Justice Beaumont to amend, but the relief will always be the same, that is the Minister's decision is under attack in two different forums at the same time. That is what we submit is the vice.

HIS HONOUR: That seems to be right, Mr Brereton, does it not?

MR BRERETON: It is right, and that is why I indicated at the outset that if it were viewed essential that I do so at this stage, I will give such an undertaking.

HIS HONOUR: I think you should.

MR BRERETON: In that case I undertake that the proceedings will be discontinued within seven days in the Federal Court.

HIS HONOUR: Thank you, Mr Brereton. That meets your problem?

MR BEECH-JONES: Yes, your Honour. The only other thing, perhaps your Honour could certify for counsel.

HIS HONOUR: Yes, I would certainly do that. I certify for counsel.

Very well, we will come back upon 18 April and so long as factual questions are resolved and there is no significant factual change, I will almost certainly make an order nisi on the grounds that there is an arguable case of infringement of natural justice. But, in the meantime, you might both give attention to some of the sort of particularity that should be inserted in the grounds. It is really a matter for you, Mr Brereton.

MR BRERETON: Yes, your Honour. We would be starting from ground 1 in the draft order nisi.

HIS HONOUR: All right. Is there anything further?

Adjourn the Court.

AT 12.58 PM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 18 APRIL 2000