Din, Ex parte - Re MIMA B34/2001 [2001] HCATrans 204 (17 May 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B34 of 2001

In the matter of -

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

Respondent

Ex parte -

ISLAH-UD DIN

Applicant

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 17 MAY 2001, AT 2.20 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: Your Honour, I appear for the applicant. (instructed by Boe & Callaghan)

MR S.J. GAGELER, SC: If your Honour pleases, I appear with MR S.J. LEE for the respondent. (instructed by Blake Dawson Waldron)

MR WALKER: Your Honour, I think am bound to shorten this as appropriate in light of argument on similar matters that has been fully entertained by your Honour and ruled upon in Lam. I move on the affidavit, by coincidence, of the same deponent, sworn on 8 May this year which, again, in the same manner contains frankly argumentative material.

HIS HONOUR: This is the arsonist, is it not?

MR WALKER: This is the arsonist. May I put our cards on the table immediately? This is not a plea of guilty. He has no children. There is no equivalent of the 7 November 2000 letter. I am wondering, your Honour having seen the material and having heard such elaboration of some of the other grounds as I essayed in Lam, would your Honour be content with my saying this, that everything that we wish to say in support of Mr Din's application is contained in the argument set out in the affidavit and that no further elaboration would be appropriate?

HIS HONOUR: Yes, all right. You will have a reply anyway, Mr Walker. Mr Gageler.

MR GAGELER: Your Honour, I can do it two ways: I can hand your Honour a similar document and rest upon what is there written or I can do that in combination with a very short oral submission.

HIS HONOUR: Before I perhaps look at your document, we might go through the affidavit again. The starting point is in paragraph 30, I think.

MR GAGELER: Yes. There is a complaint about a denial of natural justice stemming from a letter that was written to afford him natural justice. What is contained in the letter, which is AB-5 is a series of factual considerations that may have been taken into account against Mr Din and he was told on the second page that "In the interests of natural justice" he was being provided with that information for his comment and it is said that there was a denial of natural justice because he was not told the evidentiary basis for those conclusions. Well, your Honour, he does not have to be. The issues have to be raised, and that is it. He did, indeed, respond through his solicitors.

HIS HONOUR: What about this, "Any other" - it is a curious way to put it - - -

MR GAGELER: It is very curious and I, frankly, do not understand it.

HIS HONOUR: No. I cannot deal with it. I mean, it is very difficult to deal with it, is it not?

MR GAGELER: And then we have "the `Expectations of the Australian community'" point again. Who best to gauge that than the Minister?

HIS HONOUR: And there is no child involved here.

MR GAGELER: No.

HIS HONOUR: No. All right. Well, 30.2 and 30.3 - - -

MR GAGELER: They are unparticularised and what can one do with them?

HIS HONOUR: All right, 32:

He "is reported to be associating with the more unsavoury characters in the centre" - - -

MR GAGELER: Well, that is just going through the letter to which I have already taken your Honour, the factual basis for which was a prison report that was also in evidence, but - - -

HIS HONOUR: I wonder how you find the most unsatisfactory people in a prison.

MR GAGELER: I cannot speak from personal experience about that, mercifully. So that really appears to be nothing than another way of putting the same ground.

HIS HONOUR: Yes.

MR GAGELER: Then paragraph 33, again, is just dealing with the solicitor's response to that natural justice letter, which says more about the solicitor's difficulty in getting proper instructions from the applicant than it does about any denial of procedural fairness on the part of my client.

HIS HONOUR: Yes.

MR GAGELER: Then we have pure merits arguments in the next few paragraphs, saying that:

The regard given to the "not guilty plea" is only speciously attractive.

Paragraph 36 and so on. None of that is within cooee of judicial review, in our submission. It is then difficult to know where to pick up another ground of review. I think it might be in paragraph 46, your Honour. None of those matters elaborated can possibly be regarded as irrelevant considerations.

HIS HONOUR: Where is the basis for 46.1, "The respondent's views as to the executive government's wishes"? Where does he get that from?

MR GAGELER: The decision record perhaps. Yes, your Honour, page 3, paragraph 7. The reference to paragraph 2.6 of the direction appears to be the source of that, and then paragraph 9 as well. Then paragraph 47 says that certain things were not properly taken into account.

HIS HONOUR: So you have to divine that somebody is going to commit a crime and if they hold a visa, those people hold a visa, you have to warn them that if they commit the crime they may be deported.

MR GAGELER: Well, that appears to be the proposition. That cannot be so. In some circumstances it may be possible to warn someone that they should not do something. In other circumstances the warning is simply impossible. There is something in the guidelines, your Honour, about warning. If somebody has been given a warning and then they repeat offend, then obviously that is taken into account adversely to them, but the converse cannot lead to anything.

HIS HONOUR: Yes.

MR GAGELER: Again, your Honour, without going through the individual points, there are ways of really looking at the material already before the Minister and there is no need for him to slice it up in the way most favourable to the applicant. Wednesbury unreasonableness is paragraph 48, elaborated in 49. In our submission, this gets nowhere near making out that ground. Then we have in paragraph 51 through to 54 the direction argument. Your Honour has already heard that. In paragraph 55 through to 58, again, another way of putting the direction argument.

What is called ground 5, not observing "the procedures that were required by the Act to be observed", simply is not made out, even in the argument set out, paragraph 60 to 62. Your Honour, I think that then deals with - I am sorry, and then ground 8:

There was no evidence or other material to justify the making of the decision.

Again, it is just really a challenge to the conclusions arrived at on the merits by the Minister. Would your Honour benefit from the document?

HIS HONOUR: Yes, thank you.

MR GAGELER: It does draw upon the Lam document your Honour has already seen.

HIS HONOUR: Did you want to say anything in reply, Mr Walker?

MR WALKER: No, your Honour.

HIS HONOUR: The applicant in this case seeks prerogative relief under section 75 of the Constitution. He was born in Pakistan on 20 April 1959 and entered Australia on 16 May 1989. He was granted a permanent resident visa on 18 May 1999. He has continuously lived in Australia since 1989. He was convicted of arson on 11 August 1999. The sentencing judge on his conviction referred to the fact that the offence had been committed in order to achieve financial benefit, without regard for the interests of the owners of the adjoining buildings. The applicant was conducting a business as restaurateur. The sentencing judge described the offence as a planned fraud with one exception only: that the applicant "failed to ensure that the premises" had the appearance of having been "forcibly entered". The judge added that there was no indication whatever of remorse on the part of the applicant.

On 25 September 2000 the applicant was informed that the respondent intended to examine whether there were grounds to cancel the applicant's visa under section 501 of the Migration Act 1958 . The applicant made a response to that advice on 18 October 2000. On 13 February 2001 an official of the Department administered by the respondent informed the applicant that the respondent had decided to cancel the applicant's visa pursuant to section 501(2) of the Migration Act (Cth).

The particular ground, it was said, under which the applicant failed to pass the character test was the ground set out in section 501(6)(a) of the Act, that is, that the applicant had:

a substantial criminal record (as defined by section 501(7)) -

which includes that:

the person has been sentenced to a term of imprisonment of 12 months or more -

which was the situation with respect to this applicant.

All of the personal circumstances of the applicant and the features of the crime which he committed are set out in the material which is before me and which was also before the respondent. It is unnecessary for me to deal in any detail with the proper construction of section 501 of the Act as this section was given full consideration by the Full High Court in the recent decision of Minister for Immigration and Multicultural Affairs v Jia, which was handed down on 29 March 2001.

The Chief Justice and Justice Gummow at paragraph 65 of that judgment, Justice Hayne at paragraphs 189 and 190, and I at paragraph 247 of the judgment emphasised that the respondent in making a decision under section 501 was in a quite different position from a court or a quasi-judicial tribunal in making decisions in litigation or in matters in respect of which such a tribunal may have jurisdiction.

The applicant advanced a number of grounds in support of his claim for entitlement to prerogative relief. The first was that he was denied natural justice in that, he said, he was not given a proper opportunity to address various matters which were the subject of a letter from the office of the respondent dated 26 October 2000. The submission in relation to this ground is quite misconceived. The purpose of the letter was to give the applicant an opportunity of dealing with the matters which were referred to in it and, indeed, the applicant did deal with them as best he could. That ground must fail.

I should say at this point also that there is no evidence at all in this case that the applicant was denied procedural unfairness. The balance of the submissions are really taken up with argumentative assertions going to such matters as the weight which might or might not be given to the fact that the applicant pleaded not guilty at his trial, as to the risk of recidivism and various other matters that it is unnecessary to specify. There is also a contention that irrelevant considerations were taken into account, including that the applicant was associating with unsavoury characters in prison. It is unnecessary to go into the detail of these. Suffice it to say that none of them are irrelevant matters and that the respondent was entitled to give them such weight and to weigh them in such way as he chose against the criminal conduct and the character which might be imputed to the applicant in consequence of it.

In my opinion, none of the grounds upon which the applicant seeks to rely is made out and I would dismiss the application.

MR WALKER: May it please your Honour.

MR GAGELER: I seek costs, your Honour.

HIS HONOUR: Yes. Do you have anything to say, Mr Walker?

MR WALKER: No, your Honour.

HIS HONOUR: I dismiss the application with costs and I certify for counsel. Is there anything else?

MR WALKER: No, your Honour.

MR GAGELER: No, your Honour.

HIS HONOUR: All right.

AT 2.45 PM THE MATTER WAS CONCLUDED