Lin, Ex parte - Re MIMA S121/2001 [2001] HCATrans 399 (28 August 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S121 of 2001

In the matter of -

An application for Writs of Certiorari, Habeas Corpus and Prohibition, and a Declaration against the MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte -

DAVID MIN LIN

Applicant

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 28 AUGUST 2001, AT 10.18 AM

Copyright in the High Court of Australia

MR S.J. GAGELER, SC: If your Honour pleases, I appear for the applicant, with MR S.J. McMILLAN. (instructed by Tzovaras Legal)

MR G.T. JOHNSON: Your Honour, it is an ex parte application but I would seek your Honour's leave to appear for the respondent. (instructed by Blake Dawson Waldron)

HIS HONOUR: Well now, what is happening in this matter, Mr Gageler?

MR GAGELER: Your Honour, it is a question of how most expeditiously to proceed, given that the applicant has been, first, in gaol for some 12 months and, then, subsequently, in immigration detention for six months. I provided by facsimile transmission to the Registry a proposed set of orders and directions. It occurred to me, having done so, that I had overlooked Order 55 rule 13(3) which contemplates another procedure; that is, if it emerges on the affidavits, following the grant of an order nisi, that facts are in dispute, then "the Court or Justice may give such directions . . . for the determination" of that dispute. So, an alternative, your Honour, might be to grant an order nisi, it being strictly an ex parte application, and then provide a relatively short timetable - - -

HIS HONOUR: Well, I certainly will not be doing that. I have to tell you that even on your version of the case, I have grave doubts as to whether it is a proper case for an order nisi, basically on a Stead-type ground, Mr Gageler, that having regard to the matters that Mr Turner refers to in his affidavit, it seems to me that those matters have effectively been put in the brief to the Minister.

MR GAGELER: Your Honour might recall that the facts in Stead were that in address to a judge counsel was stopped from addressing on a particular factual issue. It is not as if the issue had not been ventilated in the evidence, it was that counsel was stopped from addressing on that issue. It was said that that constituted a breach of the rules of natural justice.

Now, what happened here was that, through the actions of Mr Thompson, my client was discouraged; indeed, misled.

HIS HONOUR: Well, that is as high as you can put it.

MR GAGELER: I can put it that highly, on his evidence, misled, into the assumption that the decision was most likely to be favourable to him and he did not need to spend the money on a lawyer. Now, that is what he was told. That is what his de facto wife was told. That led him not to engage a lawyer. To the extent of the submissions that were made on his behalf to the Minister, your Honour can see in the handwritten document that appears - your Honour will see Mr Turner's affidavit.

HIS HONOUR: Yes.

MR GAGELER: The exhibit to that affidavit at page 2 and following contains all that was said on the applicant's behalf in the handwriting of his de facto wife. Now, any lawyer would have done better, your Honour.

HIS HONOUR: Yes, maybe they would have put it in better form but Mr Turner makes two points. He says, first of all:

The best interests of the Applicant's Australian Citizen son (Ricky) -

would have been more strongly argued and, secondly:

The protection of the Australian Community would not be put at risk by the Applicant remaining in Australia as the offence was an isolated `first offence' by the Applicant who had a very good prison record demonstrating a low chance of recidivism.

Now, those matters were, in effect, put to the Minister.

MR GAGELER: Your Honour, those matters were communicated to the Minister. Those matters were fielded by the departmental officer.

HIS HONOUR: Yes, but you have to start with - first of all, this is not a court case and the authorities are at one in saying that there is no right to a lawyer in these circumstances.

MR GAGELER: I can accept that, your Honour. The question of what natural justice requires is fairness in all the circumstances.

HIS HONOUR: Yes.

MR GAGELER: Now, the applicant - and in the context of a particular statutory regime. The particular statutory regime, your Honour will recall, has provisions in it that allow for an applicant or any person who is faced with an immigration problem to be represented by a migration agent. That is the statutory scheme.

Now, here, the applicant wished to put the best case possible forward; wished to engage a lawyer who would have needed to have been a migration agent - that is entirely consistent with the statutory scheme - and, through the actions of the respondent, was misled into not doing so. Now, that, your Honour, is basically unfairness - - -

HIS HONOUR: You start with the commencing letter which asked him to put forward whatever he wants to put forward.

MR GAGELER: Yes.

HIS HONOUR: Now, at its highest - and if my recollection is right - he was told he had a right to a lawyer.

MR GAGELER: There is no doubt that he had a right to a lawyer.

HIS HONOUR: Yes, that is what he was told, that he had a right to a lawyer.

MR GAGELER: He was told that he had a right to a lawyer. He was told he did not need a lawyer, that he should not engage a lawyer because the decision was going to be favourable to him.

HIS HONOUR: No, they did not say it was going to be favourable to him.

MR GAGELER: Well, yes, your Honour. In the affidavit of - perhaps I should take your Honour to the affidavits.

HIS HONOUR: Yes.

MR GAGELER: In order, they are the affidavit of Hui Juan Mao, sworn 14 June 2001. I read that affidavit but draw your Honour's attention in particular to the bottom of the second page.

HIS HONOUR: What paragraph?

MR GAGELER: It is paragraph 3 but it is a very long paragraph; at the bottom of that second page and then the top of the next page. Also, paragraph 6, and then in the affidavit of the applicant, himself, of 27 June, particularly paragraph 6.

HIS HONOUR: Does he say that what his wife told him was communicated to him; that what she alleges she was told - - -

MR GAGELER: No.

HIS HONOUR: His account of what he was told appears at paragraph 5 of his affidavit.

What did he want.

The Minister for Immigration is considering cancelling my visa. You should get a good lawyer to prepare something good to help my case.

Then, on 17 October, he spoke to Thompson again.

I have decided to get a lawyer to make a good letter.

MR GAGELER: Yes.

HIS HONOUR: And then he says, "It's too late", but the conversation that you rely on with the wife seems to have no causal connection.

MR GAGELER: No. Your Honour, the sequence of events is that on 10 October he telephones his de facto wife and says, "Get a lawyer" and then on 17 October she has a conversation with Mr Thompson. That is paragraphs 5 and 6 of her affidavit. He also has a conversation with Mr Thompson. The conversations are materially to the same effect, that is, "You don't need a lawyer. I'll look after you."

HIS HONOUR: Well now, there seems to be some mistake in the affidavit of - - -

MR GAGELER: The word "state", your Honour?

HIS HONOUR: No, of the wife. In paragraph 4 she said:

On, or about, 27 October 2001 I again telephoned Kevin Thompson -

and then in paragraph 5, "Approximately 2 weeks after 17 October".

MR GAGELER: No, I am sorry, it was my mistake to say - no, your Honour, the sequence of events is consistent - say that paragraph 4 should probably be "17 October". I can seek some instructions on that. Your Honour, the point is not that a lawyer would have necessarily raised new issues that were not before the Minister, the point is that the applicant undoubtedly had an entitlement to a lawyer. The lawyer would have assisted in the presentation of his case.

HIS HONOUR: When you say he "had an entitlement", he certainly did not have an entitlement as a matter of natural justice. According to the cases, he did not even have a right to be told that he had a lawyer, did he?

MR GAGELER: No, but that is not - - -

HIS HONOUR: I mean, this matter has come before the courts a number of times in this very context. There is Nguyen's Case v The Minister for Immigration before the Full Court where they held that the Dietrich principle did not require the AAT to ensure appellant was given a lawyer; there is Barzideh's Case v The Minister for Immigration (1996) 69 FCR where Justice Hill said it is clear that the rules of natural justice do not require the provision of legal representation in administrative inquiries. That was a case of legal representation before the Refugee Review Tribunal. You have Guo's Case before Justice Sackville where, again, he came to the same view and on the facts of the case, said that procedural fairness did not require a lawyer, although he said, that in the circumstances of a particular case it might be an applicant should be told that he was entitled to seek legal advice, but his Honour went on to say he did not think the point had been reached in that case. So, you have no right to even be told that you are entitled to a lawyer, have you, at common law?

MR GAGELER: No, your Honour. Those case one can fully accept. In Stead's Case, I think it was the accused in that case, could readily have been appearing for himself.

HIS HONOUR: Yes, I know, but that is a court case where one is entitled to appear by way of a lawyer. It is the usual practice. Dietrich says, of a serious criminal case, the trial is unfair if you are not legally represented or ordinarily will be. But here the most you can say is that a lawyer might have stated these things in more elegant or perhaps even more persuasive language than that put by Mr Thompson.

MR GAGELER: Or even more legible language than that put in the handwritten document which - - -

HIS HONOUR: But when you look at what was done, the consideration that was given to the position of Ricky in the brief, the brief noted that the applicant had a son in Australia; it referred to the fact of the visits - Ricky's visits to the prison; it referred to the applicant's involvement with the child; the applicant's desire to stay in Australia with his family was recorded in the brief and a copy of the applicant's interview was attached to the brief to the Minister. The brief to the Minister included a summary of the interview with the de facto wife. The Minister was told she felt strongly against the possibility that he would have his visa cancelled and if that occurred it would have a profound effect on her and on her son. The Minister was told that the son had never had Chinese citizenship and that, as a result, neither she nor the son would be able to return to China. So, I mean, all these considerations are put before the Minister. The same thing can be said about the question of the offence. It was strongly put before the Minister. Why should I send this matter to the Full Court to determine this case as to whether there has been a breach of natural justice, even on the applicant's own account of the case?

MR GAGELER: Your Honour, because it really just comes down to this - and one can put it in a couple of different ways. One can say either of two things about the breach of the rules of natural justice having occurred. One is that the procedure adopted by the Minister's Department, specifically, Mr Thompson, had the effect of depriving the applicant of putting submissions in a way that would otherwise have occurred had it occurred if he engaged a lawyer. That is one point.

HIS HONOUR: But accepting that is so for the purpose of this argument, what follows from it if the substance of what would have been put, and what you are putting in your case is what is in Mr Turner's affidavit.

MR GAGELER: Yes.

HIS HONOUR: The brief dealt with the question about no previous convictions. It referred to the fact that he had no previous criminal convictions. His contrition was noted. The summary finished, if I recollect correctly, with a statement of the fact the applicant would like a chance to stay in Australia, that he regretted committing the crime and feels that he has been punished again.

MR GAGELER: Your Honour, then the question comes down to this: if your Honour accepts the first step in the argument, then the next step, and the only other step is to ask did that procedural defect deprive the applicant of the possibility of a successful outcome? Now, your Honour's analysis in Aala was somewhat different and, if I may say so, more robust than other members of the Court and your Honour, I think, dissented in the result.

HIS HONOUR: I did.

MR GAGELER: The other members of the Court, applying Stead, were content to say if there is unfairness in the procedure, misleading of an applicant, then it is sufficient that that meant that there was a possibility that the result would have been different.

HIS HONOUR: Yes, but that was a case in which the applicant was prevented from dealing with certain factors altogether. I mean, it is a very different case from this case.

MR GAGELER: Your Honour, the facts in this case - and your Honour is not a merits tribunal - do no inevitably point to the applicant having his visa cancelled under section 501. He came to Australia as a relatively young man. He has been in a de facto relationship for a very long time. He has a young child. The best interests of the child powerfully pointed to the child, the de facto wife and him remaining in Australia. The child could not go back to China, on the evidence. The wife could not go back to China. Your Honour, he had a business in Australia. There was a lot that could powerfully be argued - - -

HIS HONOUR: All those matters were put to the Minister but no doubt the matter that influenced the Minister most was that the applicant had played a major role in a conspiracy to bring 69 illegal immigrants into the country aboard a Peruvian ship.

MR GAGELER: No doubt, and no doubt because that was something that appeared very much at the forefront and at length in the submissions put to him. The submission, your Honour will note, was carefully couched in neutral terms to allow the Minister to make up his mind as he wished, taking into account all of the factors. What was never allowed to be put to the Minister was the applicant's argument for the exercise of the discretion in his favour.

HIS HONOUR: But why do you say that? I mean, the brief specifically said - for instance, dealing with the offences, "He would like you to give him a chance to stay in Australia with his family. He regrets having committed the crime." He said he believed he would not commit any further crimes. He wanted to go back and run his business and he intended to go back to university and study again. All these things are put to the Minister.

MR GAGELER: Your Honour, the factors were there. They were never put together in an argument as a lawyer could have done much more eloquently than the handwritten document of his de facto wife.

HIS HONOUR: Yes, but as Justice Mason said in Kioa, one is looking for what are the critical factors. It is not a question of form. It is a question of substance. The rules of natural justice are not written in stone.

MR GAGELER: No. What they require is fundamental fairness.

HIS HONOUR: Yes.

MR GAGELER: And fundamental fairness, when one is talking about the future, not just of an individual but of a family, entitles the persons concerned to be able to put forward the best possible case to a discretionary decision-maker. That is what they desired to do. That was what they were prevented from doing.

HIS HONOUR: No. What natural justice requires, that he be given an opportunity.

MR GAGELER: And he was, your Honour, in my respectful submission, on his evidence, deprived of the opportunity.

HIS HONOUR: I would have to analyse it a bit more closely but I am not sure that is right. The closest you can get to an issue of deprivation of opportunity is through the wife's evidence and she does not ever seem to have communicated to him, on her own account or on his account.

MR GAGELER: She was the person who he had asked to engage the lawyer. Your Honour, there is another way of putting it and it is this, that it looks at the scenario from the point of view of a legitimate expectation and says that the communications to the wife and to the applicant about the prospect of a favourable decision led to a legitimate expectation that the decision would be favourable and if the decision was not to be favourable, then he ought to have been apprised of that and allowed an opportunity to make submissions.

HIS HONOUR: Well, this is a new ground. It does not appear in the - - -

MR GAGELER: It is just another way of putting the "natural justice" scenario, your Honour. It is not a new ground, no. It is not a substantive legitimate expectation that - - -

HIS HONOUR: Well, it is different from the way the ground is put. It is the first time "legitimate expectation" has been given a run in the case, is it not?

MR GAGELER: No, not at all. Your Honour, I had started to say that there were two ways of putting the "natural justice" argument. Legitimate expectation is not anything more than another way of packaging the same facts but a way that is consistent with the cases.

HIS HONOUR: Anyway, I want to just hear from Mr Johnson. What, do you propose to put on evidence in this matter? Or does the Minister propose to put on any evidence?

MR JOHNSON: Yes, your Honour. Your Honour, could I just say this: that the Minister would not want this matter to trouble the Full Court unnecessarily. There is a dispute about the facts. The Minister does intend to put on evidence. The draft order that was filed that we have come along today to perhaps be heard in relation to is one which envisaged our evidence or the Minister's evidence being put on within 28 days of today.

HIS HONOUR: It will have to be put on a lot quicker than that.

MR JOHNSON: We can do that and we can give my friend discovery within a week. I have given my friend some informal indications, the best I can, as to what our position is going to be. But I can say to your Honour that there is going to be, really, quite a complete dispute between Mr Thompson and these witnesses as to the promises that they say were made.

With respect to how the matter should proceed: my friend, towards the end of his outline proposed a series of orders.

HIS HONOUR: I know, and I will hear him further on that, but I certainly do not propose to proceed under Order 55 rule 1(4). That rule seems to me to be very defective because it seems a one-way street, it enables the judge to make an order absolute. There seems to be no provision, if the judge is of the view that the judge would not make the order absolute. What do you do then? Send the matter into the Full Court? I am not going to have a full scale hearing on fact and law and argument with the possibility that I might rule against the applicant and then have to send the matter into the Full Court. That is just inefficient.

MR JOHNSON: Can I make a suggestion, your Honour, just with a view towards trying to find the way of saving it unnecessarily, taking the time of more judges than it needs to?

HIS HONOUR: Yes.

MR JOHNSON: There is a provision in Order 55.

HIS HONOUR: Which rule?

MR JOHNSON: Order 55 rule 4 to the effect that:

An order to show cause -

which, of course, assumes or would assume that an order nisi had been granted -

shall be to show cause before a Full Court, unless the matter appears to be one of urgency, in which case the Court or Justice may make the order returnable before a single Justice in Court or Chambers.

So, there is room there, your Honour, at least in cases of urgency, for the show cause to be finally dealt with by a single Judge. Then with the limitation that your Honour has referred to, there is also the power there in Order 55 rule 1(4) for a single Judge, if "it appears necessary for the advancement of justice", to "grant an order absolute".

Now, your Honour, I wonder whether the best course might be to simply stand over the application for an order nisi to be dealt with by a single Judge but upon the basis that if the single Judge then considers it appropriate, it can be dealt with instant or on a final basis under Order 55 rule 4.

HIS HONOUR: Well, Mr Gageler seems to regard the matter as one of urgency. Do you regard it as one of urgency?

MR JOHNSON: It has had a very long history, your Honour, and I do not think it could truly be said that the prosecutor had gone about things terribly urgently, but the man is in custody, your Honour, and I would accept that it is one of urgency. It is a matter for the Court, of course. "Urgency", I suppose, has to be attested according to the Court's other business.

HIS HONOUR: Another way the matter can be done is to try the facts and state a case under section 18 of the Judiciary Act, although that is fairly unsatisfactory. How long do you want to put on your affidavits?

MR JOHNSON: We can put on affidavits, your Honour, and give my friend discovery within a week. He has asked in his proposed directions for those things to happen before 3 September, which is Monday of next week. We could manage that, your Honour.

HIS HONOUR: I suppose you would want to put some evidence possibly in reply?

MR GAGELER: Yes, by 10 September, your Honour.

HIS HONOUR: Yes. Can the parties be ready for a hearing in the week of 17 September?

MR GAGELER: Yes.

MR JOHNSON: Yes, your Honour.

HIS HONOUR: Is any day better than another from the parties' point of view?

MR GAGELER: No day that week will suit me at all but it is in the interests of my client that the matter proceed.

HIS HONOUR: What about the following week.

MR GAGELER: I have the same difficulty. The previous week I can do any day, your Honour, the 10th to the 14th.

HIS HONOUR: The problem is the Court will be in Canberra that week.

MR GAGELER: Your Honour, from my client's point of view, it is more important that the case proceed than that I be involved in it. I could only say this about the week of the 17th. There is a Full Court hearing at 2 pm on the 18th. I am in that matter and I could be free in the morning, your Honour, but that is - - -

MR JOHNSON: I am in the same situation, your Honour; in the same case, in fact.

HIS HONOUR: On the 18th?

MR JOHNSON: On the 18th.

HIS HONOUR: They are special leave applications, are they?

MR GAGELER: No, it is actually a hearing in an immigration case. It has been referred to a Full Court of two by Justice Gummow.

HIS HONOUR: That is one the Chief Justice and Justice Gummow will be sitting on.

MR GAGELER: The case of Mohammad.

HIS HONOUR: Yes, and is that for 2 o'clock?

MR GAGELER: Yes, 2 o'clock on the 18th.

HIS HONOUR: So, you are tied up on the 17th, Mr Gageler?

MR GAGELER: I am engaged all week apart from the 18th, your Honour, yes.

HIS HONOUR: Well, what about if it is fixed for the 18th at 9.30.

MR GAGELER: Yes, your Honour.

HIS HONOUR: Now, I think, having regard to some of the matters that I put to you this morning, Mr Gageler, that you might want to put more detailed written submissions.

MR GAGELER: Definitely, your Honour, yes.

HIS HONOUR: I will ask counsel for their comments. At the moment I am proposing to order that the respondent on or before 3 September give verified discovery of all documents in his possession or power relating to the matters in question in the proceedings, and to direct the respondent to file any affidavits relied upon on or before 3 September; that the applicant file any affidavits in reply on or before 10 September; that the applicant file written submissions no later than 4 pm on 12 September and submissions in reply by 4 pm on Friday, 14 September. That only gives the respondent two days but you do not have to wait for your opponent's submissions before you start preparing your own case.

MR JOHNSON: Yes. I am happy with that, your Honour.

HIS HONOUR: Yes. Have you any problems?

MR GAGELER: No, your Honour.

HIS HONOUR: And I would fix the hearing for 9.30 am on 18 September.

Very well, I will make the following orders:

(1) I adjourn the application to 9.30 am on 18 September;

(2) I order that the respondent on or before 3 September 2001 give verified discovery of all documents in his possession or power relating to all matters in question in the proceeding;

(3) I direct that on or before 3 September 2001, the respondent file any affidavits upon which he intends to rely in the proceedings;

(4) I direct that on or before 10 September 2001, the applicant file any affidavits in reply;

(5) I direct that the applicant file written submissions by 4 pm on 12 September 2001, and that the respondent file written submissions by 4 pm on 14 September 2001;

(6) I certify for the attendance of counsel today.

There is a question of costs for today's proceedings. Why should I not make today's costs the applicant's costs in the cause?

MR GAGELER: I have nothing to say against that, your Honour.

HIS HONOUR: Yes. Mr Johnson?

MR JOHNSON: Yes, I am happy with that, your Honour.

HIS HONOUR: I make today's costs the applicant's costs in the cause. Anything further?

MR GAGELER: No, your Honour.

MR JOHNSON: Just one thing, your Honour, in relation to the order for discovery. I wonder if, perhaps, it could be noted or allowed that the respondent list the documents by files rather than individually listing the documents if, in fact, there is an unwieldy number. I think what is likely to occur in fact is that there will be fairly contained groupings of the files which can then be listed very, very quickly. I just want to avoid a situation where my instructing solicitor unnecessarily has to list things individually.

HIS HONOUR: Yes. What do you say about that, Mr Gageler?

MR GAGELER: I have no difficulty with that, your Honour.

HIS HONOUR: Yes. Well, I think that can be understood as between the parties. To discover the documents in the manner just suggested by Mr Johnson will be a proper compliance with the order I made about giving verified discovery. Anything further?

MR GAGELER: No.

HIS HONOUR: I will adjourn the further hearing of this matter until 9.30 am on 18 September 2001.

AT 10.55 AM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 18 SEPTEMBER 2001