Zhu, Ex parte - Re MIMA & Ors S221/2000 [2000] HCATrans 792 (18 December 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S221 of 2000

In the matter of -

An application for Writs of Certiorari, Mandamus and Prohibition, and an Injunction against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

SECRETARY, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

LYN JACKSON, REVIEW OFFICER, MIGRATION INTERNAL REVIEW OFFICE, DELEGATE OF THE MINISTER

Third Respondent

MARGARET BANAS, DELEGATE OF THE MINISTER

Fourth Respondent

Ex parte -

WEI ZHU

Applicant

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 18 DECEMBER 2000, AT 2.22 PM

(Continued from 30/11/00)

Copyright in the High Court of Australia

_______________

MR R.W. KILLALEA: I appear for the applicant. (instructed by Coelho & Coelho, Solicitors)

MS N.E. ABADEE: May it please the Court, I appear for the first respondent. (instructed by Clayton Utz)

HIS HONOUR: Mr Killalea, I notice that you have filed a number of affidavits.

MR KILLALEA: Yes, your Honour.

HIS HONOUR: Do you have any objection to any of those affidavits, Ms Abadee?

MS ABADEE: Just to one of them, your Honour, a number of paragraphs in one of them.

HIS HONOUR: Which one is that?

MS ABADEE: The affidavit of Mrs Hui Zhu. The copies that I have do not have the filing stamp on them, I am afraid, your Honour, but this is the one that was - - -

HIS HONOUR: Well now, why do you not read the other affidavits first, Mr Killalea, and then we can deal with that objection? Just identify the affidavits by the name of the deponent and the date.

MR KILLALEA: The first is the affidavit of Wei (Wendy) Zhu, affidavit affirmed on 8 December and filed on 8 December. Does your Honour require me to read them?

HIS HONOUR: You go ahead and identify the affidavits by reference to the deponent and date to which there is no objection.

MR KILLALEA: Yes. The affidavit of Hui (Laura) Zhu, affirmed on 8 December and filed 8 December.

MS ABADEE: That is the one to which there are some objections, your Honour.

HIS HONOUR: Just put that one to one side, and identify by reference to the deponent and the date the affidavits to which there is no objection.

MR KILLALEA: An affidavit of Bruce Bian affirmed on 8 December, filed on 8 December; the affidavit of James Coelho affirmed on 8 December and filed on 8 December; the affidavit of Zhi Wei Lin also known as Jack Lin affirmed on 11 December and filed on 11 December; the affidavit of Kira Raif affirmed on 13 December and filed on 13 December; the affidavit of Judy Wu affirmed on 13 December and filed on 13 December; the affidavit of Peter Bollard affirmed on 13 December and filed on 13 December; the affidavit of David Mawson affirmed on 14 December and filed on 14 December and the affidavit of Dr Charles Sinclair sworn on 15 December and filed, I think it is, on 15 December. Those are the affidavits, your Honour.

HIS HONOUR: Yes, there is no objection to any of those affidavits and I have read them. Now, there is another affidavit to which there is an objection and that is the affidavit of Hui (Laura) Zhu, which is affirmed on 8 December 2000. Is that the only other affidavit?

MR KILLALEA: Yes.

HIS HONOUR: And that is the one that there is objection to, Ms Abadee?

MR KILLALEA: Yes, your Honour.

HIS HONOUR: And which are the paragraphs that are objected to?

MR KILLALEA: Your Honour, they all fall into the same category. I will give you just a list of the paragraphs which are objected to. Paragraphs 9, 16, 17, 28, 32, 33, 34 and the annexures referred to therein. Your Honour, each of those paragraphs deals with the state of health of the deponent's children. In our submission, they are not relevant.

HIS HONOUR: What is the relevance, Mr Killalea?

MR KILLALEA: They go to explain what it is that Wei Zhu was doing that interposed in the time in which she otherwise had to seek judicial review.

HIS HONOUR: Yes. I will allow that evidence and I have read that affidavit.

MS ABADEE: Your Honour, I am sorry. Might I just be heard briefly?

HIS HONOUR: I have read the other.....of the affidavit.

MS ABADEE: Yes, your Honour.

HIS HONOUR: Now, Mr Killalea, what do you say all that shows?

MR KILLALEA: I simply say this, your Honour, that it shows that as at and following the receipt of the letter dated 5 February 1999, that the two sisters, and principally the action being taken by Wei Zhu, the nominator - - -

HIS HONOUR: The nominator?

MR KILLALEA: Wei (Laura) Zhu - that she took action consistently throughout the following some 30-odd days, 28 days to 5 March, some 32 days until 9 March when she saw Peter Bollard, solicitor, and he told her that she was out of time to seek review before the Immigration Review Tribunal.

HIS HONOUR: When you say she took action, what do you mean by that?

MR KILLALEA: She took this action that shortly after taking receipt of the registered post she contacted Jack Lin. She sent him a full copy of the letter and the Review decision. His evidence is that he simply read the first paragraph and a half of the cover letter of 5 February to the point where he read that her application had been unsuccessful. He did not read on to read about the 28-day period that ran with the review to the IRT. He then read into the decision, called her back, let her know that - if I might paraphrase - that it was a pretty strong case against her and it did not look real good.

HIS HONOUR: I got the impression from a number of these affidavits that your client had advice from various sources. Is that a fair impression?

MR KILLALEA: Yes.

HIS HONOUR: The advice that she got fairly consistently from these various sources was that she did not have a strong case.

MR KILLALEA: Yes, in the broad until Kira Raif, perhaps on 5 March.

HIS HONOUR: What do you say the evidence shows as to whether or not there was a deliberate decision, either by the applicant or her advisers, to go down the route of seeking an exercise by the Minister of his discretionary power under section 345?

MR KILLALEA: What she was pursuing was whatever remedy was available up until 9 March when she first became aware that there was a 28-day time period and, as advised, it had now lapsed.

HIS HONOUR: But what do you say about whether or not those whom she consulted and those who were advising her or the nominator, being of the view that her prospects of obtaining a merit review in her favour were small, decided to take an alternative route and proceed under section 345?

MR KILLALEA: There is no indication of that until Peter Bollard's advice; to the contrary, what the evidence indicates is that - and putting aside Jack Lin, who was not professionally qualified in terms of what he put in his affidavit in any sense - but from Charles Sinclair she was well within time as it were and there was no indication that he said - her evidence is that he did not say to her that there was a 28-day time period running.

When she has gone before Kira Raif the indications are that if she goes to see Mr Barlow, the principal of the firm Barlow & Co, he is the one who handles difficult cases. What one might surmise is that Charles Sinclair and Kira Raif simply said, "It looks a difficult case and properly it has to be dealt with by someone who has the expertise to deal with such a difficult case and that person is Mr Neil Barlow". Now, she had made an appointment with Mr Barlow which was to have occurred approximately on about 2 March but then that was cancelled because Mr Barlow did not come to Sydney. He had businesses in both Sydney and Melbourne.

I will just take your Honour to that paragraph. That would be paragraph 20. She said that she was not happy with her interview with Mr Sinclair and she spoke to Judy Wu, who she had known for some 10 years, asked her to make another appointment. She said:

I want to see Mr Barlow"

Judy said:

"Mr Barlow is not coming every day. His appointments are full for Friday. He'll be here next Tuesday or Friday.

Judy Wu has said:

I'll make you an appointment for Tuesday 2 March".

On paragraph 29:

On Tuesday 2 March 1999 Judy Wu telephoned me.....to cancel my appointment with Mr Barlow as Mr Barlow was in Melbourne. My appointment was changed to 5 March 1999 with Mr Barlow.

It is on 5 March she has come along expecting to see Mr Barlow who, if anyone has an answer, he has it and he is not there and she sees Kira Raif who says, "You need to see Mr Barlow about this one". So he was the one who had the expertise to properly rule upon the difficult case. Of course, it is one thing to say a case is difficult in the sense of its presentation.

HIS HONOUR: She ran out of time on 12 March. Is that right?

MR KILLALEA: She ran out of time on 5 March. If I might correct the chronology, and my friends are with me on this, the legislation - we just went into it in a bit more detail, your Honour, and I am sorry to have not been able to inform you properly before, but statutory rule No 263 of 1997 provided for a 21-day notification period, 21-day period in which to apply for IRT review.

HIS HONOUR: So is it common ground that she had until 5 March to make an application?

MR KILLALEA: Yes.

MS ABADEE: No. No, it is not, your Honour.

MR KILLALEA: I beg your pardon.

HIS HONOUR: What do you say, Mr Killalea, is the date by which she had to make the application?

MR KILLALEA: 5 March.

HIS HONOUR: What do you say, Ms Abadee?

MS ABADEE: 3 March, your Honour.

HIS HONOUR: 3 March.

MS ABADEE: Your Honour, I should apologise. I misled the Court on the last occasion as well and I recall correcting my friend, somewhat injudiciously since I was wrong in what I said.

HIS HONOUR: We have got to the situation where it is agreed that it was either 3rd or 5th March.

MS ABADEE: We say it is the 3rd, your Honour, because the regulation prescribes 21 days from the date of notification.

HIS HONOUR: It may not be necessary to resolve that. Does it come to this, Mr Killalea, that you say the evidence shows that the applicant took professional advice following the receipt of the information that her matter had been dealt with unfavourably by the Review Officer, that the people she consulted were of the view, and told her, that they thought her case was a difficult one and they informed her that the man who could assist her, if anyone could, was Mr Barlow, and because of Mr Barlow's unavailability, she did not get to talk to him until after 5 March?

MR KILLALEA: She did not get to talk to him. She spoke to Kira Raif in his absence on 5 March and, perhaps critically, the appointment was set for 4 o'clock on 5 March. There was delay and while she cannot say what time she saw Kira, if 5 March was the last day on which she could apply, the appointment they made for her has essentially taken her outside that period in any case.

HIS HONOUR: All right. I believe I followed that. Now, what do you want to say about the submissions that Ms Abadee made on the last occasion concerning what I might describe as the merits of the matter, that is to say, the strength or weakness of the grounds upon which you seek constitutional relief? Before you do that, could I just be clear that I understand those grounds? Am I right in summarising them as follows, Mr Killalea, that looking at the order nisi, grounds (b), (d), (e) and (f) all relate in one way and another to the manner in which the Review Officer dealt with Departmental policy?

MR KILLALEA: Grounds (b), (d), (e) and (f), your Honour?

HIS HONOUR: Yes.

MR KILLALEA: My friend is just making the point that (e) and (f) deal with Banas, the Delegate below, the fourth respondent, rather than the - - -

HIS HONOUR: We are really, at the moment, only interested in the decision of the Departmental officer, are we not? It is that decision which is the impugned decision?

MR KILLALEA: There are two Departmental officers, one being the Review Officer, as we call it the MIRO decision maker who is an officer of the Department, and the original decision maker, who is a delegate of the Minister but in the normal course also an officer of the Department.

HIS HONOUR: I understand that, but the decision that you want brought up and quashed is the decision of the Review Officer, is it not?

MR KILLALEA: In these proceedings, we wish to have both decisions quashed.

HIS HONOUR: Can I put it another way?

MR KILLALEA: Yes.

HIS HONOUR: Unless you can get the decision of the Review Officer quashed, you cannot get any success, can you? You cannot mount an independent challenge to the validity of the decision of the delegate?

MR KILLALEA: No, we depend upon overturning the decision of the Review Officer.

HIS HONOUR: Now, am I right in thinking that the grounds upon which you seek to overturn the decision of the Review Officer may be summarised as follows? Grounds (b) and (d), and you have similar grounds (e) and (f) in relation to the delegate, are based on the approach that was taken to Departmental policy?

MR KILLALEA: Now, your Honour, (a) and (d) rather than (b) and (d).

HIS HONOUR: No.

MR KILLALEA: Is your Honour looking at the application? It is just that I - - -

HIS HONOUR: I am looking at the order nisi.

MR KILLALEA: Yes.

HIS HONOUR: The draft order nisi.

MR KILLALEA: Filed 8 September?

HIS HONOUR: Yes. If I go to the draft order nisi I see certain grounds beginning on page 3.

MR KILLALEA: Yes.

HIS HONOUR: Ground (a) deals with "an error of law".

MR KILLALEA: Yes.

HIS HONOUR: Just excuse me a moment. I thought there was an amended - - -

MR KILLALEA: Yes, your Honour. If I could take you to that, that is attached to the submissions.

HIS HONOUR: The amended application, which is attached to your submissions, has attached to it an order nisi.

MR KILLALEA: Yes.

HIS HONOUR: Now, ground (a) asserts an "error of law".

MR KILLALEA: Yes.

HIS HONOUR: Grounds (b) and (d) complain about the way in which the policies were dealt with.

MR KILLALEA: Yes.

HIS HONOUR: Grounds (e) and (f) make similar complaints in relation to the way the delegate dealt with the policy decisions and ground (c) complains of failure to "take into account relevant considerations".

MR KILLALEA: Yes.

HIS HONOUR: And does that cover it?

MR KILLALEA: That covers it, your Honour.

HIS HONOUR: Now, is it common ground that although you have some complaints about the way the delegate treated the matter, unless you can make good your complaints about the way the Review Officer dealt with the matter, you cannot get the relief you seek?

MR KILLALEA: That is right. Yes, I accept that position, your Honour.

HIS HONOUR: Now, that having been sorted out, what I would like to hear are your submissions in answer to the arguments that Ms Abadee put on the last occasion and any additional submissions you want to make in support of any of the grounds you rely on.

MS ABADEE: Your Honour, I am sorry to interrupt. I just wanted to make clear - I have indicated to my friends that we require two of the deponents for cross-examination on the discretion issue. I was not sure if your Honour was aware of that.

HIS HONOUR: Yes. That is an issue that may or may not be reached.

MS ABADEE: Thank you, your Honour.

MR KILLALEA: If I might just address your Honour, at least initially, as to the errors per se and then secondly, address your Honour as to whether or not they constitute jurisdictional error.

HIS HONOUR: Yes. Just before you do that, can I ask you this question, Ms Abadee? What are the matters that you wish to establish by cross-examining the applicant and her sister?

MS ABADEE: Yes, they are the two, your Honour. I wish to challenge the evidence that they put. What has been put in relation to discretion is that they took all proper paths and made all proper inquiries. I seek to challenge that.

HIS HONOUR: How long is that cross-examination likely to take?

MS ABADEE: I would anticipate probably ten minutes for each of them, your Honour, possibly a little bit longer with the sister.

HIS HONOUR: What is the point you are seeking to establish?

MS ABADEE: Your Honour, we are seeking to establish that contrary to what my friend puts they did not act properly. Neither of them acted properly to protect the prosecutor's interests. Now, I could put the submissions based on the evidence but in fairness I wanted to test - - -

HIS HONOUR: I am not sure what you mean by "properly" in this context. Do you mean wisely or prudently?

MS ABADEE: Your Honour, as I understand it, the evidence that your Honour suggested on the last occasion, ordered to be put on, was evidence to establish what inquiries were made and what advice was given.

HIS HONOUR: Or, more accurately, evidence to explain how it came about that they did not pursue their full merits review.

MS ABADEE: Yes, your Honour.

HIS HONOUR: And evidence has been put on explaining that. Do you want to challenge that evidence in some way?

MS ABADEE: I do, your Honour, in some respects.

HIS HONOUR: Well, we should probably get this out of the way before we get on to what the merits of the case are. Mr Killalea, Ms Abadee wishes to cross-examine the deponents of two affidavits.

MR KILLALEA: Yes.

HIS HONOUR: They are available for cross-examination?

MR KILLALEA: They are, your Honour.

HIS HONOUR: First of all, let us call the applicant. Will you please call your client to the witness box?

MR KILLALEA: I call Laura - Wei Zhu.

HIS HONOUR: Is there an interpreter here?

MR KILLALEA: Yes, your Honour.

HIS HONOUR: Could you show your client into the witness box? Could you swear the interpreter, please?

ANDI ZHANG, sworn to interpret:

WEI ZHU, called:

HIS HONOUR: Thank you. What is your full name?---(Wendy) Wei Zhu.

Are you the applicant in these proceedings?---Yes.

And you have sworn an affidavit in these proceedings?---Yes.

Do you wish to ask any questions, Mr Killalea?

MR KILLALEA: No, your Honour.

HIS HONOUR: Yes, Ms Abadee.

MS ABADEE: Ms Zhu, you are aware, are you not, that you are not able to stay in Australia without a visa?---What?

You are aware that you are not entitled to stay in Australia without a valid visa?---Yes.

And you understand that if your application for a visa is refused you must either appeal from that decision or you must leave Australia. Is that correct?---That's why I appealed.

Right. Ms Zhu, do you have a copy of your affidavit with you?

HIS HONOUR: I can assure you she does not, Ms Abadee. She has just gone into the witness box with her hands free.

MS ABADEE: Might she be given a copy, your Honour?

(through interpreter): Ms Zhu, I realise that the affidavit is in English, but I will take you to some paragraphs and the interpreter will translate for you those that I am asking you about. Ms Zhu, in paragraphs 6 and 7 of your affidavit you describe how you received on 10 February documents from the Department of Immigration which you have annexed as annexures A and B? Do you see those documents?---I received a letter from the post office and then I gave it to my sister.

And your sister told you that the documents were from the Department of Immigration, did she not?---No, she said probably this is a letter from the Immigration Department.

And you knew that those letters would relate to your appeal from the decision, initially, to refuse your visa, did you not?---I didn't know because I couldn't read English.

Ms Zhu, you had made an application in August 1998 for review or appeal of the first decision which refused you a visa, had you not?---Yes.

And in February 1999 you were still waiting for the results of that appeal?---February 1999?

Yes?---Yes.

And you understood, did you not, that if you were told for a second time that your visa had been refused, you would have to leave Australia?---I didn't understand because I couldn't understand the letter. I couldn't understand English.

Could you just listen to my question, Ms Zhu? You understood that if you were told that your appeal had been unsuccessful and that your visa had been refused again, you would have to leave Australia?---Yes.

So that was a matter of some importance to you, was it not?---You mean the refusal of the visa application.

When you received the documents from the Department of Immigration on 5 February they were documents that were important to you?---I don't understand English but then a friend translated the content of the letter to me and, of course, the decision was important to me.

When did the friend translate the contents of the letter to you?---Two or three days after I received the letter.

So two or three days after 10 February 1999 a friend translated to you the contents of that letter. Is that correct?---Yes, over the phone.

Who was that friend?---Jack Lin.

Jack Lin. You have not set out in your affidavit what Mr Lin told you, have you?---Yes. He said he was very busy and he could only explain the - what is the main content of the letter to me.

And what did he tell you?---We asked him to translate the letter and he said he was very busy, he was writing his thesis and he could only just have a look, roughly, at the letter.

Ms Wei, you have just given evidence that Mr Lin translated the letter to you. What did he say?---He said, "This letter is from the Immigration Department and it seemed that your application for review have been rejected".

Did he tell you that you had a right to apply to the Immigration Review Tribunal for review of that refusal?---No, but he said that he told "These are the reasons that your application have been rejected".

Did he explain to you that you had any right of appeal or review from that decision?---No, he didn't. He said, "This matter seems to be quite complicated".

Did you ask him if the letter advised you about any right of review or appeal?---No, I didn't. I only asked him to tell me what is written in the letter and he said, "Oh, it seems quite complicated and I don't quite understand everything here".

Did he tell you, then, that if you wanted the whole letter to be translated you should ask for somebody else's advice?---No.

Ms Wei, you know that it - I am sorry, I withdraw that. When you received the first decision refusing a visa in July 1998 you were told that you could apply for review of that decision and you did so, did you not?---Yes.

And you knew, Mrs Zhu, when you made that first application for review that you had to do so within a certain time period, did you not?---No, I didn't know.

Perhaps if I could show you your application for review of the first refusal. Could I show you that document? It is annexure B to the first affidavit of Mr Coelho. Did you prepare that document with someone's assistance, Ms Zhu?---Yes.

Could you turn to the last page, please? Did you obtain assistance from someone called Julie Bouloux in the office of Laurie Ferguson in preparing this application?---It was my sister who got someone to help to fill in this form.

Did you sign it or write on the form at all?---I don't remember. That was a long time ago.

All right. What I wanted to suggest to you was that you understood when you made that application that you had to do so within a certain time period; is that correct?---I didn't. As soon as we received a decision that our application for residency was rejected we began to take some measures to make - to apply for review.

That is in relation to the first refusal in July 1998?---Yes.

So what I want to suggest to you is when you received the second decision in February 1999 you knew that there was a possibility that you could seek review but you knew that you would have to do that within a specified time; is that correct?---We didn't know. We didn't know there was a time limit. And, for this time, we also didn't know but we started to prepare for the application after we received the rejection decision.

Right. But, Mrs Zhu, in relation to the decision in February 1999, you did not believe that you had unlimited time to challenge that decision, did you?---Unlimited time, I don't know, and I didn't understand and nobody told me.

So when you spoke to Mr Lin on 13 and 14 February you did not ask him about any time limits for making an appeal; is that correct?---No.

And, Mrs Zhu, you say in paragraph 10 of your affidavit that you left it to your sister to arrange things with Jack. Could you tell me what did you say to your sister?---To make phone calls to Jack Lin to ask him to help us to translate the letter and then my sister faxed the letter to Jack Lin.

And after your sister did that did your sister tell you what Jack Lin had said?---We didn't talk on the phone with Jack Lin immediately after we faxed the letter but after a couple of days we talked to him.

And did Mr Jack Lin tell you or did your sister tell you that he had told you that your case was a difficult one?---Jack Lin told me.

All right. Were you aware that before 3 March, at some time in late February, your sister, on her own, went to see Barlow & Co, Solicitors, about your application?---My sister made an appointment with Mr Barlow for an - made an appointment in February, over the phone.

Yes. Are you aware that your sister in late February saw Mr Barlow - I am sorry - saw somebody at Barlow, Solicitors on an occasion when you were not present and received some advice in relation to your matter?---Yes.

And are you aware that your sister was told that your case was a difficult one?---Yes. She was upset when she came back and she said the solicitor - the lawyer told her that, "You have made a mess by yourself about this case and it's difficult for anyone else to do this case any more - to do this case".

So, Ms Zhu, in your affidavit in paragraph 11 you say that on 5 March you went to see Barlow & Solicitors; is that correct?---I went with Laura, my sister.

And is it correct to say that from when you spoke to Mr Jack Lin on or about 14 or 15 February up until 5 March when you went to Barlow & Co, Solicitors, you, yourself, did nothing in relation to finding out what avenues of appeal were available to you?---My sister made an appointment with them and it was then cancelled and then the children were sick.

So you left it - in that period, from 13 or 14 February until 5 March - during that period you left it to your sister to pursue - to get advice on your behalf?---Yes.

Did you ever ask your sister to ask any of the people she was getting advice from whether there was a time limit in which you had to make an application for review?---No.

Why not?

HIS HONOUR: What is the relevance of her reason for not doing that, Ms Abadee?

MS ABADEE: I withdraw that question, your Honour. Nothing further, your Honour.

HIS HONOUR: Thank you. Do you have any questions, Mr Killalea?

MR KILLALEA: Yes, thank you, your Honour.

RE-EXAMINED BY MR KILLALEA:

MR KILLALEA (through interpreter): You said that Jack Lin told you it was a difficult case?---No, he said that, "This seemed to be very complicated and I can't understand it completely".

Did he say anything else?---He said, "There are a lot of reasons given by the Immigration and it seems quite complicated".

Did he say anything else?---He said that, "This case seemed to be complicated", lots of reasons.

And apart from that did he say anything else?---Nothing else.

I have no further questions, your Honour.

MS ABADEE: I am sorry, your Honour, there is one further question I should have asked. I seek the Court's leave.

HIS HONOUR: Yes.

FURTHER CROSS-EXAMINED BY MS ABADEE:

MS ABADEE (through interpreter): Ms Wei, I suggest to you that the reason that you did not seek review from the Immigration Review Tribunal was because you had been told that your prospects of success were small and that proceedings would be expensive; is that correct?---We intended to appeal. We never thought that we were not going to appeal.

I suggest to you that you made a conscious decision to make your appeal to the Minister by way of a letter rather than to appeal to the Immigration Review Tribunal; is that correct?---No. We went to Mr Barlow's office because we wanted to make the appeal. We didn't know that we could write a letter to the Minister for Immigration. Only we were told about it by Peter the other day.

Peter Bollard?---Yes.

No further questions.

HIS HONOUR: Yes, thank you.

THE INTERPRETER: We didn't know that.

HIS HONOUR: Thank you.

THE WITNESS WITHDREW

HIS HONOUR: Could you have your instructing solicitor bring the other witness in, Mr Killalea?

MR KILLALEA: Yes, your Honour.

HUI ZHU, called:

HIS HONOUR (through interpreter): What is your full name?---Zhu Hui. Laura.

And you have sworn an affidavit in these proceedings?---Yes.

Do you have any questions, Mr Killalea?

MR KILLALEA: No questions. Might I offer an affidavit?

HIS HONOUR: Thank you. Yes, Ms Abadee.

CROSS-EXAMINED BY MS ABADEE:

MS ABADEE: Mrs Zhu, you have been in Australia for about 10 years, now, have you not?---Yes.

Do you have now in front of you an affidavit sworn by you in these proceedings?---Yes.

Mrs Zhu, you run your own business as a tailor, or seamstress, and have done for about five years; is that correct?---Yes.

And you say in your affidavit that you speak some limited basic English and that you can read some words such as the word "Immigration"; is that correct?---Yes.

Can you read numbers in English?---What numbers?

If you see a number on the page in English, do you understand what those numbers mean?---Yes.

Could I ask you, please, to have a look at annexure A to your affidavit, which is a letter from - annexure A. It is the first page immediately after your typed affidavit, page 8 it should be. Do you have that letter, Mrs Zhu?---Yes.

Mrs Zhu, you say in your affidavit that you recall when your sister received this letter and the document behind it, which is a decision, you knew that those documents were from Immigration. You say that in paragraph 8 of your affidavit; is that correct?---Yes.

How did you know that?---I guessed.

You knew at that time that you and your sister were waiting for a decision from the Department in relation to your appeal from the decision to refuse a visa, did you not?---Yes.

And that was a matter of some importance to you because you knew that if the decision was to refuse the visa your sister would have - I am sorry, I withdraw that. You knew that if the decision was to refuse the visa your sister would either to appeal the decision or leave Australia; is that correct?---What do you mean?

I am suggesting to you that it was an important decision for you because you knew that if the decision was to refuse the visa again you would have to - or your sister would have to either appeal or leave Australia?---Yes.

And you had prepared for your sister the application for review of the first decision back in August 1998, had you not?---Yes.

And you prepared that with the assistance of a woman called Julie Bouloux in the office of Laurie Ferguson MP; is that correct?---Yes.

And you knew when you prepared that application for review of the first decision back in 1998 that you had to do that within a certain time period, did you not?---No, I wasn't very clear.

You say you were not very clear. What do you mean by that?---I only knew that after I received the decision I had to do something but I didn't know there was a period - within that period that I have to do something.

Mrs Zhu, you did not believe you had unlimited time to make an application for review of that decision, did you?---I knew that that was not true.

So, Mrs Zhu, if I can ask you now, again, about this decision of February 1999. I want to ask you some questions about what you did after your sister received this. Could I just ask you again to have a look at the letter which was immediately following page 7 of your affidavit. You may still have it open. Could I ask you to have a look at the fourth paragraph of that letter, which begins with the words - and your interpreter will translate it for you - "If you believe my decision is wrong". Do you see that paragraph?

I am sorry, are you translating the whole paragraph?

THE INTERPRETER: Yes.

MS ABADEE: No, there is no need to do that, sorry. I just wanted to show her that paragraph. I am sorry to interrupt you.

(through interpreter) Did you see the word "Immigration" in that paragraph and thus understand that this was a letter from Immigration?---No. I wasn't sure exactly which office was this letter from, but we were just talking generally, "This is from Immigration".

Did you see the number 28 in that paragraph?---I didn't look. There were a lot of words there in this letter.

And did you, when you received that letter and decision, understand that you needed to have it translated for you quickly so you could understand what your sister's position was?---Yes.

And that is why you sent a copy of the decision and the letter to your friend, Jack Lin; is that correct?---Yes.

And after you spoke to him he told you that your sister's case was not very strong, did he not?---That's not what he said.

What did he say?---He just said that there were a lot of things said in this letter and he wasn't very clear about what it had said and there were a lot of examples in the - in the letter.

Did you ask him what rights of appeal were available to your sister and what time period they had to be exercised within?---We had no idea. All we wanted to know is what the letter says.

And, Mrs Zhu, after you spoke to Jack Lin you then made an appointment to see someone at Barlows. You say that you saw someone on 25 February and you say that that person did not advise you - I am sorry, let me start again. I withdraw that. If I could ask you then to have a look at paragraphs 21 and following of your affidavit. You say that on 25 February you saw someone at Barlows, Solicitors?---Yes.

And you gave them a copy of the letter and the decision?---Yes.

And you say that that lawyer did not advise you at all that there was any time limit; is that correct?---He didn't tell - he didn't tell me that. He didn't say much. He seemed not very interested in this matter.

Are you sure that he made no mention to you of the fact that there was a limited time within which your sister could make the appeal?---No.

No further questions, your Honour.

HIS HONOUR: Do you have any questions, Mr Killalea?

MR KILLALEA: No questions, your Honour.

HIS HONOUR: Yes, thank you very much. Thank you.

THE WITNESS WITHDREW

HIS HONOUR: Yes, Mr Killalea.

MR KILLALEA: If I could take your Honour to the amended application and ground (a). In addressing that issue, I will be referring your Honour to Regulation 1.03 of the Migration Regulations, which is the definition of "special need relative". It is certainly set out in the review decision, and I will be referring to that, your Honour. That is annexure C - - -

HIS HONOUR: What is the error of law?

MR KILLALEA: The error of law is that Regulation 1.03 is cast in terms of "special need relative" being defined as meaning:

a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:

(a) the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances - - -

HIS HONOUR: Now, were you just concerned with a citizen or a permanent resident?

MR KILLALEA: Citizen.

HIS HONOUR: Citizen.

MR KILLALEA: Sorry, your Honour, if I might just take an instruction on that. Yes, she is a citizen, your Honour, nominated as a citizen. So it is a question of the:

relative who is willing and able to provide substantial and continuing assistance to the citizen.....if:

(a) the citizen.....has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen.....personally, or -

and this is a critical point of the submission -

a member of his or her family unit - - -

HIS HONOUR: Now, were you concerned with disability affecting a member of the citizen's family unit; is that right?

MR KILLALEA: Disability or other serious circumstance, and I think the situation in this case most easily falls within the concept of disability.

HIS HONOUR: Yes.

MR KILLALEA: The regulation is focused upon the need for assistance, in this case to the nominator, to the citizen, but because of the circumstance of the citizen's son. When one looks to what the third respondent held - I refer your Honour to the submissions - - -

HIS HONOUR: No. I would rather be referred to the holding. I would rather be referred to the decision. Where does the decision reveal the error of law?

MR KILLALEA: Yes. That is found at page 6, point 4 of the review decision. Does your Honour have that?

HIS HONOUR: Yes.

MR KILLALEA: Where the third respondent has held that:

Special need relative provisions are not intended to address situations in bringing up children and relieving the possibility of financial disadvantage.

What the decision maker has done there is focused on the situation of the nominator per se - - -

HIS HONOUR: You mean the citizen?

MR KILLALEA: Yes, of the citizen, but has not done what is required by Regulation 1.03, and that is to focus on the need for assistance in respect of the disability suffered by the citizen's family member, the citizen's son. I submit that in that the third respondent has erred in law and has misdirected herself as to the meaning and the interpretation and application of Regulation 1.03. Likewise - and I have referred your Honour in the amended application to a second reference at 6 point 2 where the decision maker has held that:

Whilst I can accept that the applicant has been of great assistance to the nominator, it appears that this assistance is primarily to care for the nominator's child before and after school so the nominator can continue to operate her business.

Again, a focus on the needs, as it were, of the nominator per se, or the nominator personally, rather than doing what the regulation requires, and that is to look to the assistance which is required because of the disability of the citizen's son.

The second ground where I submit that the third respondent has erred in law is that the third respondent has treated the PAM III, the Departmental guidelines, as conclusive of the nominator's status as a special need relative and was having a permanent or long-term need of assistance. I have referred your Honour to the findings of the decision maker, and they are found, the first reference, at page 5 point 6:

As further stated in the Department's PAM III, it is policy that, in the absence of other factors, none of the following constitutes a permanent or long-term need:

. financial support, companionship or general domestic assistance;

. death of a spouse; or

. assistance in bringing up children.

It is by reference to those matters and taking up on the provisions which I have taken your Honour to on the first point, by reference to those matters, that the focus has been on the citizen's position personally rather than being where it should be and focused on the assistance which is needed for reason of the disability of the citizen's son. I have referred your Honour to the second finding of the decision maker, and that is to be found at the foot of page 4, at point 9, where the third respondent has held that:

It is policy that the present level of assistance generally available to Australian residents from welfare, hospital, nursing and community services constitutes reasonably obtainable substantial and continuing assistance for the purpose of this regulation.

Again, what the decision maker has done has treated the policy as being the criteria which the applicant has to meet.

HIS HONOUR: I cannot help feeling, when I read the references to policy here, that to a large extent the so-called "policy" is merely just an explanation of the terms of the regulation.

MR KILLALEA: Yes.

HIS HONOUR: A lot of what is referred to as "policy" is self-evidently correct. It is just repeating in another way what the regulation actually says. I suppose it is understandable that they do that within the Department to produce consistency of decision making and decision making that conforms to the regulation. A lot of the policy just looks like an explanation of the language of the regulation.

MR KILLALEA: Yes. But therein the decision maker has usurped the role of the courts to interpret what the regulation means as a matter of law, and in so doing, they have manifestly erred in law. It is not the function of the Tribunal to say what the meaning of the provision is. It is the function of the Tribunal, the MIRO officer, to give effect to the regulation to the extent so far as the regulation is properly interpreted in law.

What one sees when you look to the provisions, the references to policy that I have just taken your Honour to, is that the decision maker has taken it upon herself to apply the policy as a matter of law when the effect of the policy is to write down what is otherwise available under Regulation 1.03, because the Regulation 1.03 does not say that, in respect of the provision on welfare, hospital and community services being available, it does not say they are available because they are available. What has to be tested is what actually is available for this child. It is erroneous in law for policy to supplant what should be an assessment of what actually was available to the citizen in respect of providing for the disability of her child.

HIS HONOUR: Am I right in thinking that in the circumstances of this case, at all material times welfare services were, in fact, being provided in respect of the child? The child was being cared for by welfare or community services, but it was a kind of gap in the availability of care before school and after school that was the problem.

MR KILLALEA: Well, the application - and that is annexure B to Mr Coelho's affidavit - suggests that there were significant difficulties in actually obtaining that care; that while nominally the care was there to be had, the particular difficulties - and that is set out in the application to MIRO for review of the delegate's decision.

HIS HONOUR: I am looking at the bottom of page 5 and the top of page 6 of the decision.

MR KILLALEA: Yes. The doctor has said that:

Edward will need regular developmental therapy -

and that is provided:

once a fortnight and continued daily by his parents. It is further stated that children with Down syndrome always require ongoing medical care and that Edward's needs are no greater than most and will be met to a large degree by his parents themselves.

What that does not say is what care does Edward require and what care is he able to get from public welfare, community services and such like. It is no more than an in globo statement which says that, "Yes, he is getting some treatment, he will need continuing treatment, and that will be met to a large degree by his parents". But that does not answer the question which Regulation 1.03 poses, and that is - - -

HIS HONOUR: If you look at page 3, just because it is a convenient place to do so, you will find the information that the decision maker was given by the applicant's sister. Do you see that?

MR KILLALEA: Page 3 of the - - -

HIS HONOUR: Top of page 3 of the decision. It says:

The special school Edward attends has noticed an improvement in his motor skills -

et cetera. Well, you refer to that in another ground of appeal.

I am aware that we could place Edward in a community based before & after school care service, although they are not easy to find -

et cetera. The decision maker had before her a deal of information, did she not, about the extent of the care that was actually being made available or that might be available to him?

MR KILLALEA: Yes. Or might not be available to him. Yes.

HIS HONOUR: Yes.

MR KILLALEA: Yes, and it is against that information that the matter should have been addressed by the decision maker, at what Regulation 1.03 requires. But, rather, the decision maker has proceeded down the track of applying policy and, in doing so, supplanting consideration of what Regulation 1.03 requires. Policy has taken the pre-emptive role and it is only one defeats the policy, as it were, if one can step outside of the policy, that the application would ever have been made out. But that is not what the law requires. The law requires that simply that consideration be given to the actual assistance that is able to be provided by the applicant and what assistance might otherwise be provided by welfare and community services.

The issue of whether or not the third respondent failed to take into account relevant considerations - now, if it be the case that the decision has been driven by policy considerations and those policy considerations have taken a limited view of the fact that it is irrelevant to the consideration of the application under Regulation 1.03, then the effect of that is that when one looks to what should have been considered under Regulation 1.03, significant factors have been written out of consideration because of the narrow perspective that has been adopted.

HIS HONOUR: Let me just check one thing, Mr Killalea. I have seen in these decisions, that is, both of the delegate and the Review Officer, reference to the Procedures Advice Manual. I do not actually have that in evidence, do I? I am not suggesting I should have it, but I just want to check.

MR KILLALEA: No, you do not. When one looks to the particulars which are set out in the submissions - sorry, the particulars are set out there in the order nisi. Because the decision maker's focus was on the citizen's personal needs, then the decision maker has not considered the factors set out under paragraph (c) - the relevant consideration - has not considered them against the criteria of Regulation 1.03, that criteria being what assistance is required in respect of the disability of the citizen's son. That is why I submit that the third respondent has failed to take into account relevant considerations in the context of what Regulation 1.03 requires, albeit, then, as my friend has said, those factors have been alluded to but they have been alluded to in the context of the citizen's personal position, not in the context of the needs of the citizen's son. That is apparent in the two particulars set out under paragraph (a) - and I have taken your Honour there - where the accent is on the position of the citizen personally rather than her position vis-a-vis the needs of her son.

Paragraph (d) on page 4, again, it is, in a sense, another way of putting what has been put before in relation to the issue of policy, that the third respondent's position is the policy is a pre-emptive consideration, and she says - and that is to be found at page 6 point 6 of the review decision. She says:

Accordingly, I do not find that there is sufficient evidence which would convince me to step outside of the Department's policy in determining that the applicant satisfies the requirements Regulation 1.03 of the Migration (1994) Regulations on the grounds of being a special need relative. Therefore the applicant fails to satisfy Subclause 806.213(a) of the Migration (1994) Regulations.

What the decision maker was required to do was to apply Regulation 1.03, and taking into account policy considerations of the government so far as they did not restrict Regulation 1.03 in the terms in which it was cast. At paragraph (e) on page 4, well, it runs the same argument - (c) and (f) run the same arguments in relation to the fourth respondent.

In relation to those errors of law, I will address your Honour shortly on the submission at paragraph (b) and paragraph 14 of the applicant's submissions. Your Honour, I have set out there, pages 3 and 4 of the submissions, references to what this Court has said in The Minister v Eshetu and in the Corporation of the City of Enfield v Development Assessment Commission. I also referred to what this Court has said in Craig v South Australia. There is an apparent tension between the dicta in those cases in this way, that Craig v South Australia - and my friend has pointed this out - that what the Minister says is necessary and, from the quote there at the top of page 5 - do I need to cite the cases, your Honour?

If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material.....and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.

I submit that, as a general proposition, that statement is, of course, correct, but what comes through from the dicta that I have cited to your Honour at page 4 from Eshetu and Corporation of the City of Enfield, that while that general proposition stands in relation to a decision made where a tribunal is properly seized of jurisdiction, and that is where properly seized of its jurisdiction if it makes an error of law which, in a sense, taints the decision in the way described, it causes the decision to be tainted, well, then there is a jurisdictional error.

As I read Eshetu, and I submit that this is - what can be drawn from the dicta in Eshetu and Corporation of the City of Enfield is this, that that is not the case where the jurisdiction arises upon the satisfaction of the decision maker. Where the jurisdiction arises upon the satisfaction of the decision maker, then there is no requirement that the error caused one or other of the consequences which are referred to in Craig v South Australia. So much is to be found from consideration of his Honour Justice Gummow, in particular in Minister for Immigration and Multicultural Affairs v Eshetu. At paragraph [131] he refers to the legislative development whereby the jurisdiction is established by satisfaction. At paragraph [131] of Eshetu his Honour Justice Gummow says this:

A determination that the decision-maker is not "satisfied" that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege -

I beg your pardon. I will go back. It is in paragraph [130]. He is talking about jurisdictional fact and says:

In Bankstown Municipal Council v Fripp, Isaacs and Rich JJ pointed out that, with the object of preventing litigation on questions of jurisdictional fact, the legislature may introduce into the criterion elements of opinion or belief by the decision-maker.

It is in the context of that, that he goes on in paragraph [131]:

A determination that the decision-maker is not "satisfied" that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege immunity goes to the jurisdiction of the decision-maker and is reviewable under s75(v) of the Constitution.

His Honour Justice Gummow goes on to cite his Honour Justice Gibbs in Buck v Bavone. That is extracted at paragraph 18. Now, nowhere in that discussion is there any suggestion that in a situation where jurisdiction is established by satisfaction - nowhere in there is there any suggestion that the test as set out by the High Court in Craig v South Australia is the proper one to apply. I simply draw from that analysis, your Honour, this, that if one is to apply Craig v South Australia in this case and look to see whether the tribunal fell into an error of law - and I say that it does on the grounds I have taken you to - and then ask, "Because of that has it identified a wrong issue?", well, the answer is yes.

Its error of law was in the interpretation and application of Regulation 1.03. It is on account of that error that the tribunal has proceeded to read down Regulation 1.03 and take the policy perspective as the overriding criteria for the interpretation and application of that provision. It has ignored relevant material because it is in the context of policy, that material I have taken to you, is not relevant to consideration of the application. So I submit this, that if one applies the test in Craig v South Australia, one does have an error of law producing that tainted result in the particulars set out in paragraph 19 of page 5.

I submit also that the proper approach in this instance is the one that his Honour Justice Gummow has espoused in Eshetu's Case, and taking up what his Honour Justice Gibbs said in Buck v Bavone, that there is no requirement that there be an error of law from which certain adverse consequences follow. On the contrary, what his Honour Justice Gibbs says in Buck v Bavone in the last paragraph on page 4, paragraph 18:

In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established -

his Honour goes on to unreasonableness, and I do not propose to take your Honour there. So I simply say that on the application of the broad test, and the general test in Craig v South Australia, or the particular test of what constitutes jurisdictional error in the context of jurisdiction being established by satisfaction, which is the case here, that the errors of law that I have taken your Honour to do satisfy the criteria of jurisdictional error. Those are my submissions, your Honour.

HIS HONOUR: What do you want to say about the discretion? In particular, what are the facts that you suggest should be found?

MR KILLALEA: I submit there was nothing in the evidence taken from the witnesses which your Honour could be satisfied that that which is set out in the affidavits does not still remain the case. Critical points: it was put to Wei, Wendy, Zhu, the applicant, essentially that "You were told that if the appeal was unsuccessful that you would have to leave Australia", to which she answered yes. Well, if she was told that, she was wrongly advised because until such time as all proper avenues are exhausted, then she does not have to leave Australia. She was quite clear that Jack Lin told her nothing about the letter she had sent to him, and it is clear on the evidence that what went to Jack Lin was the cover letter of 5 February - - -

HIS HONOUR: What do you say is the factual explanation of the failure to seek a merits review within time?

MR KILLALEA: The factual explanation is that you have the two persons not speaking - not reading English, certainly not reading English at the requisite level; an appreciation that things have to be done in order to deal with the rejection and they have taken reasonable steps to get proper advice in respect of the rejection of their application by the MIRO officer.

HIS HONOUR: And what was it, the failure of Mr Barlow to arrange a conference with them within time?

MR KILLALEA: Well, it was a matter of circumstance that they took the appropriate steps and the continuing sickness of not only Edward, but I think it is Emma - the two children, the citizen's two children, they were sick during this period and variously were requiring attention of doctors and hospitals and fitting into that they have made proper and reasonable arrangements to get legal advice. It is also against the background, when one looks at the letter, what does the letter say? It says that you have 28 days from the date of this letter to seek review. Well, is that the date on which it was sent or is that the date on which they received it? And within 28 days of the day of receipt they are at Peter Bollard's; 28 days from the day of receipt is 10 March.

On 9 March they are at Peter Bollard's, a solicitor. He says to them, as properly he would, "Well, your 28 days is up". So it is in that context of a letter which in no way has highlighted the fact that they have only got 28 days to seek review. There is not a box at the bottom with 28 days in bold lettering indicating - - -

HIS HONOUR: Before they went to Bollard they went to Barlows and they got advice from different people at Barlows.

MR KILLALEA: Yes.

HIS HONOUR: The effect of that advice seems to have been, "This is a difficult case. You had better wait until you can see Mr Barlow". And they never got to see Mr Barlow within time.

MR KILLALEA: Yes, that is right. I would simply say that in practical terms there simply was not much more that one could have expected them to have done. Those are my submissions, your Honour.

HIS HONOUR: Thank you. Ms Abadee, the only matter on which I want to hear what you have to say is in relation to any findings of fact that ought to be made in relation to the discretionary question.

MS ABADEE: Your Honour, yes. Could I hand up a short chronology that I have prepared based upon the 10 affidavits that we have been served with since the last occasion.

HIS HONOUR: Thank you.

MS ABADEE: I hand a copy to my friend - that refer to the evidence. Your Honour, perhaps if I could just deal with the last point first that your Honour raised, this issue about the alleged inability to see Mr Barlow. We would make two points in relation to that. The first is there is no evidence from Mr Barlow himself and your Honour might have expected, if the submission as to discretion was to rest on the fact that they wanted to see Mr Barlow, they tried to see Mr Barlow and Mr Barlow was the expert but Mr Barlow was not available, one might have expected to see an affidavit from Mr Barlow. We have certainly affidavits from a considerable number of other people.

The second point in that regard is that the evidence of the applicant and her sister is contradicted in part by the evidence of Mr Charles Sinclair. His affidavit was served on us on Friday. I assume that it was filed with the Court on that day. Does your Honour have a copy of that affidavit?

HIS HONOUR: Yes.

MS ABADEE: Your Honour will also recall that both the applicant and her sister in their affidavits deposed to the fact that they think the applicant's sister - I will call her Laura for the sake of convenience - believed that she saw Dr Sinclair on the first occasion. In his affidavit he says in paragraph 4 he has no recollection of that.

HIS HONOUR: I have read that and looked at the detail of it. What do you submit is the explanation of the failure to seek a full merits review in time?

MS ABADEE: In our submission, both of them failed to ask the right question. When they spoke to Mr Jack Lin and asked him to translate it, they did not ask him about whether there was a time limit. We further submit that when the sister, Laura, sought advice from the person she alleges was Dr Sinclair, we would challenge the suggestion that she was not advised of the time limit. In our submission, it simply beggars belief that you would go and see a migration agent at a firm which specialises in immigration with a covering letter that tells you, "You have 28 days", and you would be given no advice at all on that issue.

Dr Sinclair says he does not recall seeing them specifically but he deposes in paragraphs 5 to 6 as to what his practice was and that is the practice you would expect a migration agent working at a firm that specialises in immigration to adopt. So, in our submission, first, they should have asked Mr Lin when he did the actual mechanical translation for them, they should have asked him what their rights of review were and was there any mention of a time period.

Our second submission is that the evidence that when Laura saw Dr Sinclair in late February she was given no advice about a time limit ought not be accepted on the basis that it is simply inherently implausible and it is inconsistent with the evidence of Dr Sinclair. He has not been required to be here today.

The third submission is you might infer, I think, what your Honour put to my friend, that a deliberate decision was made. The only evidence as to advice they were given is fairly consistent, that they were told by everybody that the prospects were poor.

HIS HONOUR: Thank you. Anything you want to say in response to that matter, Mr Killalea?

MR KILLALEA: Just that there is nothing in Dr Sinclair's affidavit which would invite the applicant to seek to cross-examine. He does not recall being approached, so how could he recall the advice he might have given?

HIS HONOUR: Thank you.

On 8 September 2000 the applicant applied to this Court in its original jurisdiction for relief pursuant to section 75(v) of the Constitution in relation to a decision made on 5 February 1999 by an Immigration Review Officer, which in turn confirmed a decision made by a delegate of the respondent Minister on 14 January 1998 refusing her application for a visa. There is also an application for relief in relation to the decision of the delegate but it is accepted by counsel for the applicant that if the application fails in relation to the decision of the Review Officer there is no need to consider the decision of the delegate. Accordingly, what follows will relate to the decision of the Review Officer and only if it becomes necessary will further reference be made to the decision of the delegate.

The applicant is a citizen of the People's Republic of China. She has a sister, Mrs Zhu, who is, I am informed, an Australian citizen. On 7 August 1997 the applicant lodged an application for a visa in the AO Family (Residence) Class (visa subclass 806 FAMILY). The application was considered by a delegate of the Minister. Although the delegate considered a number of categories of relatives falling within the visa class, the category that was of principal relevance, and is now of sole relevance, is that of "special need relative".

A special need relative so far as is presently material is defined in the regulations. A "special need relative", in relation to an Australian citizen usually resident in Australia, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if the citizen or resident has a permanent or long-term need for assistance because of death, or disability of a member of his or her family unit, and the assistance cannot be reasonably be obtained from any other relative of the citizen or welfare, hospital, nursing or community services in Australia. The applicant claims to be a special need relative of her sister, Mrs Zhu. Mrs Zhu, a citizen of Australia, lives here with her husband and two children. The special need is said to arise from the fact that one of those children is a young child who suffers from a disability, Down syndrome.

Mrs Zhu carries on a business to which she devotes long hours. The applicant assists her by caring for the child to whom I have referred. There are welfare and community services that also provide care and assistance in relation to the child. The claim by the applicant that she fell within the class of a special need relative required evaluation of the need for assistance of Mrs Zhu because of her child's disability, the level of assistance that could be obtained from welfare and community services and the reasonableness of Ms Zhu's need for additional assistance, bearing in mind the extent of her own capacity to care for her child in the light of all the circumstances including her business commitments.

The primary decision, which was adverse to the applicant, was made on 14 July 1998. On 6 August 1998 an application was made for internal review. On 5 February 1998 the Review Officer affirmed the primary decision. There is some disagreement between counsel as to whether the applicant had until 3 March or 5 March 1999 to make an application to the Immigration Review Tribunal for a full merits review of the decision of the Review Officer. It is unnecessary to resolve that disagreement.

In the events that occurred, no such application was made. Instead, on 12 March 1999 a representative of the applicant wrote to the Minister making an application under section 345 of the Act for the Minister to exercise his power to substitute his own decision for that of the Review Officer. In reply, the Minister warned the applicant that he had no duty to exercise such a power and that it would take time for the application to be considered. On 14 April 2000 the Minister communicated to the applicant his decision not to act under section 345. On 8 September 2000 the present proceedings in this Court were commenced.

Clearly, even if the applicant could show an arguable case for the constitutional relief she seeks, there are serious discretionary considerations that would arise for determination. The applicant had an opportunity for a full merits review of the impugned decision. She did not pursue that opportunity. Rather, she and her advisers, including legal advisers, took the course of pursuing a different approach, seeking the exercise of the Minister's discretionary power under section 345. Only when that approach failed did they decide, and even then, belatedly, to seek judicial intervention and to bring a case in this Court.

One of the submissions made on the part of the respondent Minister is that the present application should be dismissed on discretionary grounds. An adjournment of the hearing was granted in order to enable the applicant's lawyers to present further evidence by way of explanation of the failure to pursue the opportunity for full merits review of the impugned decision. The evidence that has emerged in that respect is far from clear. One thing that does appear, however, is that before the expiration of the time within which the applicant could have applied for a merits review she and her sister sought advice and assistance from others, including legal advice.

The evidence shows that the lawyers who were consulted by the applicant and her sister expressed pessimistic views as to the merits of the applicant's case. According to the evidence, the applicant and her sister were advised to consult the senior member of the firm they approached but they were unable to make an appointment with him before the expiration of the time within which there was an opportunity to seek full merits review. Their evidence is that it was not explained to them that time was running and would shortly expire.

As a matter of objective probability it is not easy to accept that the lawyers who were consulted by the applicant and her sister, who would themselves have been well aware of the time limits involved, would not have drawn that to their attention. However, I am not prepared to make a positive finding of fact that the applicant and her sister were aware that time was about to expire. They ultimately consulted another lawyer after the time had expired and it was pursuant to the advice of that lawyer that they made the application under section 345 of the Act.

Whilst I acknowledge the strength of the Minister's arguments as to discretion, I would prefer to rest my decision on the merits of the applicant's case for constitutional relief, that is to say, upon the strength or weakness of the applicant's contention that there is a sufficiently arguable case for constitutional relief to warrant either the grant of an order nisi or the remitter of the case to the Federal Court.

Two grounds upon which constitutional relief is sought are based upon the manner in which the Review Officer considered and dealt with what were referred to in the reasons for decision as Departmental policies. It is submitted on behalf of the applicant that instead of construing and applying the terms of the relevant regulation the decision maker, in effect, allowed Departmental policy to govern her decision.

The references in the decision maker's reasons to policy are made in the context of guidelines for the assessment of claims that a person is a special need relative to be a found in a Procedures Advice Manual made available to Departmental officers.

There is nothing surprising about the fact that such guidelines exist. They are likely to promote consistency and fairness in Departmental decision making. The references to "policy" in connection with those guidelines are, perhaps, capable of creating a false impression. In the context in which those references appear in the reasons for decision of the Review Officer, they amount in large part to nothing more than an explanation of the terms and requirements of the regulation accompanied by some common sense and, if I may say so, fairly obvious, commentary on the provisions of the regulation. For example, it is stated in the "policy" that in the absence of other factors a need for assistance in bringing up children does not constitute a permanent or long-term need. In that connection, I emphasise the words "in the absence of other factors". A reading of the regulation makes it clear that the relevant citizen's permanent or long-term need for assistance must result from death, disability, prolonged illness or other serious circumstances affecting the citizen or a member of the citizen's family.

There may be cases, of which the present is an example, in which a need for assistance in bringing up children is capable of falling within the language of the regulation. On the other hand, it is easy to imagine cases in which assistance in child care would not satisfy the requirements of the regulation. The so-called policy also directed the decision maker's attention to the availability of welfare and community services and to the requirement to consider the citizen's need for assistance in the light of that availability. That is because the regulation itself speaks of assistance that cannot reasonably be obtained from welfare or community services.

There was a deal of information before the decision maker in the present case as to the services of which the citizen was already taking advantage and as to the availability of additional or alternative services. The decision maker said in her reasons that she was sympathetic to the claims that had been made by, or on behalf of, the applicant. Having read the reasons for decision I can see no reason why that statement should not be taken at face value. The claims were of such a nature as to arouse justifiable sympathy. However, they required evaluation in the light of the provisions of the regulation and they appear to have received careful and reasonable evaluation. The decision maker took into account the need for assistance which resulted from the disability of the citizen's child, the assistance that was in fact received from the applicant, the availability of assistance from welfare and community and services and, not unreasonably, the capacity of the citizen and her husband themselves to provide care for their child. I see no warrant for concluding that the decision maker abandoned her proper role or in any inappropriate manner took into account the matters that were referred to as matters of policy.

It is also contended that the decision maker erred in law in that she focused on the need of the wrong person. In effect, the argument is that she misdirected herself, having regard to the terms of the regulation. A fair reading of the whole of the reasons for decision demonstrates that this is not so. The decision maker attended to the issues raised by the definition of "special need relative" and there is nothing in her reasons that suggests that she made any error of law.

Finally, it is submitted that in a number of different respects the decision maker failed to take account of relevant considerations. It is said she failed to take account of the difficulty in arranging care for the child before and after school hours, that she failed to consider some information as to development in the child's motor skills in certain circumstances, and that she failed to consider likely adverse effects on the child of the removal of the care that is presently made available by the applicant.

I am not persuaded that any of these failures has been shown to exist. There has not been shown to be any error in the reasoning of the decision maker, let alone any error that could be described as jurisdictional error. For those reasons, I consider that the application should be dismissed.

Is there any reason why I should not make an order for costs, Mr Killalea?

MR KILLALEA: Yes. I think attendant upon the letter of 5 February, your Honour, in all fairness, for the most part, it will often enough be the case that applicants for review before MIRO and such bodies will not speak English, cannot speak English, and with such an important - with so much hanging off their possibility of review or appeal in another tribunal or court, then it is proper that the government, in their letter to them, spells out in no uncertain terms when exactly their appeal right or review right lapses. And when one looks at that letter, and appreciating that people cannot - often enough, and in this case, cannot read English, then it does not behove the government to write a letter in the terms that it has. One is not asking that it be written in the foreign language of the applicant, but it is only fair that it be spelt out in a way that comes to their attention, and that was not the case here. I submit no costs, in that circumstance, your Honour.

HIS HONOUR: Do you seek an order for costs, Ms Abadee?

MS ABADEE: I do, your Honour.

HIS HONOUR: The applicant must pay the respondent's costs of the application. I certify for the attendance of counsel. I also certify for the attendance of counsel on 30 November 2000.

I will adjourn.

AT 4.30 PM THE MATTER WAS CONCLUDED