Goldie & Anor, Ex parte - Re MIMA & Anor P1/2001 [2001] HCATrans 407 (3 September 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P1 of 2001

In the matter of -

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

First Respondent

JAMIE McCORMACK

Second Respondent

Ex parte -

BRIAN GERALD JAMES GOLDIE

First Prosecutor

VALERIE MARGRET FINNIS

Second Prosecutor

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON MONDAY, 3 SEPTEMBER 2001, AT 4.41 PM

Copyright in the High Court of Australia

MR B.G.J. GOLDIE appeared in person.

MR P.R. MACLIVER: May it please your Honour, I appear for the respondent Minister. (instructed by the Australian Government Solicitor)

HIS HONOUR: Yes, Mr Macliver. You appear for which of the - there is only one respondent, is that correct? There are, in fact, two. There is the Minister and Mr Tunbridge. Who do you appear for, Mr Macliver?

MR MACLIVER: In that matter, your Honour, I appear for the Minister - I appear for both respondents in matter P1.

HIS HONOUR: Very well. In P1 there is only one respondent, that is the Minister, and you appear for him. In P22 there are two respondents, namely the Minister and Mr Tunbridge, and you appear for both of them in that matter; is that correct?

MR MACLIVER: No, your Honour, it is the reverse. In P22 I only appear for the Minister and in P1 I appear for the Minister and second respondent, Mr McCormack.

HIS HONOUR: Just a moment, I will just have to make sure I have the record correctly. Now, do I have any appearance for Mr Jeffrey Tunbridge, who I take it was the delegate of the Minister; is that correct?

MR MACLIVER: Yes, your Honour, that is correct. He was the delegate for the Minister who made the decision.

HIS HONOUR: He made the original decision which Mr Goldie still wishes to contest although it went on appeal to the Administrative Appeals Tribunal.

MR MACLIVER: Yes, and then the - - -

HIS HONOUR: Now, does anybody appear for Mr Tunbridge, or not?

MR MACLIVER: I do not believe so, your Honour, and I am not even sure if Mr Tunbridge has been served. I am instructed he no longer works for the Department of Immigration.

HIS HONOUR: I see. Very well. You are here to represent the interests of the Minister and there is nobody to represent Mr Tunbridge. Mr Goldie, was Mr Tunbridge served?

MR GOLDIE: Mr Tunbridge by - service of Mr Tunbridge was effected by serving the applications on the Australian Government Solicitor who acted for Mr Tunbridge......time. I am not aware that Mr Tunbridge has been personally served. We did send some.....but I do not yet have an affidavit of service that Mr Tunbridge has been served in this particular matter.

HIS HONOUR: Well, if you do not have the affidavit of service, and Mr Tunbridge is not present, and Mr Macliver does not appear for him, we will simply have to deal with the matter on the basis that the only person who is present and who resists and contests your relief is the Minister. But it may be that the Minister is enough, for your purposes.

MR GOLDIE: .....your Honour.

HIS HONOUR: Yes.

MR GOLDIE: And, your Honour, perhaps if I could deal, first of all, with matter P1 of 2001, which would be a much shorter application than P22. The substance of the matter in P1 of 2001 . . . there has to be a matter - but if I could just ensure that you have an outline of submissions filed.....2001, which was at that point claimed as a matter.....

HIS HONOUR: Yes. In P1, I will tell you what I have. I have, first of all, the amended order nisi, and the prosecutor's outline of submissions, and I have an affidavit of Valerie Margret Finnis. I think that is - - -

MR GOLDIE: We.....matter P22, I believe, your Honour.

HIS HONOUR: Well, it has been given to me on a note that it is in P1. It is in P22, is it?

MR GOLDIE: It should be there - - -

HIS HONOUR: Unfortunately, the heading of it has No 1W13 of 2001, which is a Federal Court reference, and it appears to be an affidavit in the Federal Court. I have read that affidavit. I do not see its relevance to the proceedings before me. What is its relevance?

MR GOLDIE: I submit, your Honour, that would be an error on the part of.....since that affidavit has no relevance to these proceedings at all.

HIS HONOUR: It has no relevance to me? The whole affidavit?

MR GOLDIE: No.

HIS HONOUR: I am sorry?

MR GOLDIE: The entire affidavit would be irrelevant to this matter, meaning the affidavit was filed, or was supposed to be filed, with some background matters from Ms Finnis in relation to this matter, P22, however - - -

HIS HONOUR: Well, I do not have anything else. All I can tell you is I have the amended order nisi, and the prosecutor's outline of submissions, and the respondents' submissions in P22.

MR GOLDIE: Yes. Your Honour, I am happy to proceed with the matter without the affidavit of Ms Finnis. The - - -

HIS HONOUR: Very well. I will simply discard that affidavit and take it off our file. I read it cover to cover, and it appeared to have nothing whatever to do with the case. I have so much time that I can just spend my time reading irrelevant affidavits.

MR GOLDIE: The matters it deposes to are absolutely irrelevant to the case, your Honour, but they merely lay out some background to the proceedings. I apologise for that error.

HIS HONOUR: Well, these mistakes happen. Now, which one are we dealing with first, Mr Goldie?

MR GOLDIE: Your Honour, perhaps if I could deal with P1 of 2001 first, which will be a substantial - - -

HIS HONOUR: Well, let me just make sure that we have the relevant material in that case. I have, in that case, what are called the prosecutor's supplementary outline of submissions, and the respondents' outline of submissions in reply, an affidavit of Peter John Corbould, an affidavit of James Frederick McCormack, what are called prosecutor's outline of submissions - which I assume are different from the supplementary outline of submissions - and a draft order.

MR GOLDIE: Yes, your Honour. Those are the documents that I intend to rely on today.

HIS HONOUR: Just a moment, please. In addition to the respondents' outline of submissions, I have first respondent's outline of submissions; so apparently, there are two sets of submissions for the respondent. I have a still further document called "Outline of Submissions", not identifying on whose behalf it is made, but apparently from the respondent, or one of the respondents. A still further document called "Outline of Submissions", which is filed 2 March 2001, and an affidavit of yourself in support of the order nisi of 25 January 2001. So they are the documents that I have. Is there any other documentary material you wish to place before me?

MR GOLDIE: No, your Honour.

HIS HONOUR: You read the affidavit, which you have sworn, of 25 January 2001?

MR GOLDIE: I do, your Honour.

HIS HONOUR: Very well, and these other affidavits, I take it, are affidavits filed by the respondent. Is that correct? Do you wish to cross-examine Mr Goldie on his affidavit, Mr Macliver?

MR MACLIVER: No, I do not, your Honour.

HIS HONOUR: And do you have objection to any paragraph of the affidavit or not?

MR MACLIVER: No, I am not taking objection to it.

HIS HONOUR: Very well. That is your case, Mr Goldie, the affidavit, in terms of evidence. You do not have any other evidence?

MR GOLDIE: No, your Honour.

HIS HONOUR: Very well, thank you. Now, Mr Macliver, you read the affidavit of Peter John Corbould and James Frederick McCormack. Is that correct?

MR MACLIVER: That is correct, your Honour, yes.

HIS HONOUR: Do you object to anything in those affidavits or do you wish to cross-examine those deponents, Mr Goldie?

MR GOLDIE: No, your Honour.

HIS HONOUR: Very well, I read those affidavits. Is that your case, Mr Macliver?

MR MACLIVER: It is, your Honour.

HIS HONOUR: Yes, very well. Do you have any case in reply, Mr Goldie, in this matter? You do not wish to put on any evidence to reply to the affidavits of Mr Peter Corbould or Mr James McCormack?

MR GOLDIE: No, your Honour.

HIS HONOUR: Very well. So that is the evidence. What do you say in relation to this application? We are on P1 of 2001.

MR GOLDIE: Yes, your Honour. In relation to P1 of 2001 the application comes before this Court for constitutional relief. The reason for the constitutional relief requested is that at the relevant time in the making of the decision it would appear on the face of it that the decision-maker, James Frederick McCormack, acted in excess of jurisdiction.

That contention, your Honour, is by reason of the fact that on 27 February 1998 when Mr McCormack came to consider the application, the question before Mr McCormack was whether or not the applicant for the visa, which was myself, was or was not an unlawful non-citizen. It is common ground between the parties in this case that on that date, 27 February 1998, I was not an unlawful non-citizen. That is the concession that has been made in proceedings in the Federal Court of Australia and I presume it remains valid today.

In effect, the case is this, your Honour. The contention is that if, on that particular date - - -

HIS HONOUR: Mr Goldie, I am sorry to interrupt you but I have a note here that there are some technical problems at the Perth end and the technician has asked that we adjourn for 10 minutes. I am sorry to interrupt your flow but there is plenty of material for me to read here so I will just continue to sit here and then we will probably lose the picture and the matter will be restored as quickly as possible. So, you might just sit down for a moment, take a glass of water and we will come back to you as soon as the video-link is re-established.

AT 4.54 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.57 PM:

HIS HONOUR: Yes, I think we are back to you, Mr Goldie.

MR GOLDIE: Yes, your Honour, thank you. As I stated earlier, it is common ground between the parties at this stage that on 27 February 1998 I was an unlawful non-citizen. The contention, therefore, is then that because I was not an unlawful non-citizen the respondent decision-maker had, in fact, no power to grant the visa that he granted on that date and, of course, allied to that would be the fact that if he had no power to grant the visa, he had no power or jurisdiction to impose the conditions that he did on that date.

The question in this matter really is a question of statutory construction as well as a question on the facts. Since it is an established fact that I was not on that day an unlawful non-citizen - perhaps if I could refer your Honour to the relevant section of the regulations, the Migration Regulations, and that is clause 050.211 - - -

HIS HONOUR: Where do I have these regulations? I do not have them in my head. Are they annexed to some document?

MR GOLDIE: In the submissions that I have done, your Honour, I have laid out the relevant regulations.

HIS HONOUR: Where is that? Which part of your submission? I am looking now at a submission which has come to me with a document dated today's date. Is this a very recent submission that you have prepared?

MR GOLDIE: No, your Honour, the submission that you have dated with today's date is actually for the other matter.

HIS HONOUR: Is this a document titled, "Prosecutors Outline of Submissions"?

MR GOLDIE: It is, your Honour, yes.

HIS HONOUR: Filed on 22 March 2001?

MR GOLDIE: Yes, your Honour.

HIS HONOUR: Very well, I have that. Where is the regulation referred to? Where is it set out?

MR GOLDIE: The regulation referred to, your Honour, is set out in the outline of submissions dated 2 April 2001 and it is set out at paragraph 10.

HIS HONOUR: Paragraph 10 reads:

The First Prosecutor could not satisfy the criteria for grant of a Bridging Visa -

is that it? It does not appear to set out the terms of the regulation. Are we looking at a different document?

MR GOLDIE: The document I am talking about, your Honour, is the "Prosecutors Supplementary Outline of Submissions", which you referred to earlier.

HIS HONOUR: You want me to look at paragraph 10?

MR GOLDIE: 2 April 2001.

HIS HONOUR: Yes, I have that. Paragraph 10, "The Prosecutors contend that the question is not one"?

MR GOLDIE: Yes, that is correct, your Honour.

HIS HONOUR: Very well. What is the reason for the participation of the second prosecutor, Ms Finnis? Was that in case you could not get to court to argue the matter? Is that correct?

MR GOLDIE: No, your Honour. The reason for the inclusion of Ms Finnis is that when Mr McCormack granted the visa, he required a $10,000 cash surety as part of the terms of the visa. It was Ms Finnis, in fact, who posted that particular surety to the department and the receipt for the surety that Ms Finnis posted is, I believe, attached to Mr McCormack's affidavit.

HIS HONOUR: What is the purpose of this particular proceeding?

MR GOLDIE: The purpose of this particular proceeding, your Honour, is to have the decision on 27 February 1998 quashed by writ of certiorari and also for a writ of mandamus ordering the first or second respondent to return the $10,000 cash surety as well as, perhaps, declaring the entire visa invalid. That is the purpose of the proceeding.

HIS HONOUR: Did you comply with the conditions of the surety?

MR GOLDIE: On the first visa, yes, your Honour. There was a second visa issued on 20 May 1998 on which the surety conditions were also complied with. There was then a third visa on 19 June 1998 on which the conditions were not complied with. Now, the reason that that has become an issue now is that the visa granted on 19 June 1998 which purported to continue the surety, there is no evidence from the Department that the decision on 19 June 1998 was ever notified and that is an issue that has been agitated to some extent in the Federal Court of Australia.

HIS HONOUR: But why would you get the funds back if the surety was continued and you did not comply with the terms of the surety?

MR GOLDIE: Well, in effect, your Honour, the surety was not continued on the third visa. There is no departmental evidence that the visa was ever granted or continued and there was a notice to produce served on the Department to produce the relevant documentation in relation to the visa on 19 June 1998 and to date they have been unable to produce those documents.

HIS HONOUR: Yes.

MR GOLDIE: The receipt for the surety actually appears at page 29 of Mr McCormack's affidavit sworn 22 March 2001.

HIS HONOUR: I take it there is no dispute that the deposit of $10,000 was lodged by Ms Finnis and, as I understand it, the essential purpose of this proceeding in matter No P1 of 2001 is to secure recovery of that $10,000 to Ms Finnis. Is that correct? That is the practical outcome you want.

MR GOLDIE: That would be one of the practical outcomes. Yes, your Honour.

HIS HONOUR: What is the other practical outcome?

MR GOLDIE: The second practical outcome would be to remove the decision on 27 February 1998 from the record on the basis that it was simply beyond the power of the decision-maker on that date to take the actions that he took. The third practical outcome - - -

HIS HONOUR: Where do I find that decision, the decision of 27 February 1998?

MR GOLDIE: Yes, it is page 21 of Mr McCormack's affidavit, your Honour, and page 23.

HIS HONOUR: Page 21, just a moment. Yes.

MR GOLDIE: Yes. In effect, the circumstances surrounding that decision, your Honour, were that on 24 February 1998 I was arrested by an officer of the Department reasonably suspecting that I was an unlawful non-citizen. That has subsequently proven to be erroneous. I will not use the words "unlawful" because it is a matter of some contest between the parties. There is an action following this currently before the Full Court of the Federal Court of Australia looking to have the arrest and detention declared unlawful as well as an associated claim in damages for false imprisonment.

The matter before your Honour today, such as the return of the surety and the quashing of the decision, was not able to be agitated in the Federal Court of Australia because the matter was not filed in that court within 28 days of the decision being made and it has been an extended proceeding in that court.

HIS HONOUR: Why would I grant an order nisi now in respect of something which seeks to challenge a decision as long ago as 23 February 1998?

MR GOLDIE: Your Honour, the reason for it is this, that the matter was agitated before the Federal Court of Australia before his Honour Mr Justice French made a decision in December of last year saying that the Federal Court had no jurisdiction to entertain the matter. As a result of his Honour returning that decision I took some advice and was advised that the only relief that could then be sought was constitutional relief in this Court, because obviously the Federal Court of Australia had no jurisdiction to hear the matter.

HIS HONOUR: I realise why you are here and I realise that you say you are not entitled to relief before the Federal Court, but the grant of the constitutional writs is, according to the jurisprudence of this Court, discretionary. Why would the discretion be granted to issue a constitutional writ that challenges a decision made as long ago as 1998, February 1998 at that? The mere fact that you have no relief elsewhere does not explain why the Court would grant a relief that is to do with such a highly particular matter that occurred so long ago where you have not earlier sought any relief in this Court?

MR GOLDIE: Your Honour, the reason for not seeking relief earlier in this Court was simply that I wanted the matter to take its course through the Federal Court of Australia and hoped to have all of the matters dealt with in the proceedings there. It was as a result of an objection to jurisdiction that the matters could not be dealt with in that particular court. The initial intent of the proceedings named some five or six respondents and sought to challenge all of the matters that are currently before this Court today. I did not see that it was appropriate to file a second proceeding in this Court pending the decision of the Federal Court of Australia.

HIS HONOUR: But you could have come to this Court directly if you had had complaint about the validity of the order and not troubled the Federal Court. This Court may then have had the power at that time to remit the matter to the Federal Court. Instead of that, you come here now, some three years and more after the decision, seeking to have this Court pass upon it. It does not sound a very palatable inducement to our jurisdiction.

MR GOLDIE: I understand the reluctance, your Honour, and it is merely that because the proceedings were on foot before the Federal Court of Australia I did not want to have to have several proceedings on foot at the same time and there was some measure that the matter may have been able to be dealt with in the Federal Court.

HIS HONOUR: What are the bases upon which you seek relief in this Court against that order by Mr McCormack?

MR GOLDIE: The basis for it is, your Honour, that the Mr McCormack had no power or authority on that particular day to grant that particular visa or, in fact, to impose any of the conditions which he imposed. He had no jurisdiction to do so.

HIS HONOUR: And that is because of the terms of a regulation, is it?

MR GOLDIE: It is actually the terms of the Act itself, your Honour. If we proceed on the - - -

HIS HONOUR: What is the section?

MR GOLDIE: There are two relevant sections, in my submission, your Honour, the first relevant section being section 37 of the Act.

HIS HONOUR: Section 37?

MR GOLDIE: Yes, your Honour.

HIS HONOUR: Yes.

MR GOLDIE: Yes. Section 37 of the Act refers us that there is to be a class of:

bridging visas, to be granted under Subdivision AF.

If we then go to section 73 of the Act, Subdivision AF of the Act commences at section 72 and includes sections 73, 74, 75 and 76. If I could just refer your Honour to section 73 of the Act, which says that:

The Minister may grant an eligible non-citizen who satisfies the criteria for a bridging visa prescribed under subsection 31(3) a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia:

In my submission, your Honour, that is the terms of the legality of this particular visa in question. It is quite clear from the Act that the Minister may grant an eligible non-citizen - and I will just underline this point - "who satisfies the criteria for a bridging visa prescribed". It is not in contest between the parties, your Honour, that on that particular day I did not, as the applicant, satisfy the criteria for a bridging visa E. The criteria for a bridging visa E quite simply are that the applicant must be:

an unlawful non-citizen; or

(b) the holder of a Bridging E (Class WE) visa.

On the relevant day in question I was, in fact, the holder of a bridging visa class B. There is no factual dispute as to that matter.

HIS HONOUR: Well, you already had a bridging visa, did you?

MR GOLDIE: I did, your Honour, yes.

HIS HONOUR: Why did you need another one?

MR GOLDIE: The answer is, your Honour, that I did not need another one and I was arrested - - -

HIS HONOUR: You did or did not?

MR GOLDIE: I did not need another visa, no, your Honour. I was arrested as "an unlawful non-citizen" or a person not in possession of a valid visa, which has subsequently been determined to be an error on the part of the Department. The Department have conceded that as a result of a computer error the Department's computers incorrectly showed me to be "an unlawful non-citizen" on that day. The Department were under the impression that I did not on that day hold a valid visa.

In those circumstances, your Honour, my submission is this. Because the bridging visa E could not be granted as a result of being the holder of a bridging visa E and not being "an unlawful non-citizen", for the decision-maker to go and grant a bridging visa E on that date he simply acted in excess of his power. His jurisdiction to grant that particular visa on that day was not enlivened, and that is from the Act itself. What follows from that - - -

HIS HONOUR: Well, the section says, "The Minister may grant . . . who satisfies the criteria". It does not say that he has to.

MR GOLDIE: That is correct.

HIS HONOUR: Why would one not read that as saying that he may grant to the persons of the specified class, but in deciding whether or not to exercise that discretionary power, he may impose conditions, including a condition as to the deposit of a certain amount of money?

MR GOLDIE: The reason, in my submission, that the Act not support that particular proposition is this. Section 73 says that:

The Minister may grant an eligible non-citizen who satisfies the criteria -

That is the question in this particular action, your Honour. My submission is this. If a person does not satisfy the criteria for a bridging visa by section 73 of the Act, then the power to grant the bridging visa is not enlivened because, for the power to grant the particular visa in question to be enlivened, the applicant must satisfy the criteria. That is from section 73 of the Act. That, your Honour, in my submission, is a statutory imperative. The applicant must satisfy the criteria.

HIS HONOUR: Yes, and where does it say that the criteria exclude the grant of a bridging visa to somebody who already has a visa category B?

MR GOLDIE: The Act does not say that, your Honour, but the regulations say that the "Criteria to be satisfied at the time of the application" for a bridging visa E - and this is clause 050.211(a) -

is that the applicant must be "an unlawful non-citizen". In other words, for a bridging visa E to be granted on that day, I would have to have been an "unlawful non-citizen".

HIS HONOUR: You say that, by reason of the fact that you had already been granted a bridging visa B, you were not an unlawful non-citizen and, therefore, the power to grant the bridging visa category E was not enlivened.

MR GOLDIE: That is my submission, your Honour, yes.

HIS HONOUR: Still less enlivened to grant it on conditions that extracted from you $10,000, or extracted from Ms Finnis $10,000.

MR GOLDIE: In effect, your Honour, the submission is this, that not only was the power to grant the visa not enlivened, neither was the power to impose a condition with respect to surety; that a condition that there was to be no work; that live at a specified address; not study; and a number of other conditions which appear on the face of Mr McCormack's decision which is annexed to his affidavit. In other words, the submission is this, your Honour, that the power to grant the visa was not enlivened, neither was the power to impose a $10,000 surety.

There was no reason, on that day, that that condition be imposed simply because, on the undisputed facts of the case, on that day I was not an unlawful non-citizen and that is a pre-requisite to the exercise of the statutory power in this case. As I understand the submission from the respondent - - -

HIS HONOUR: Well, you can deal with the respondents' submission in reply. There is no reason for you to anticipate it now. It would be more efficient to allow you to reply to it.

MR GOLDIE: Yes.

HIS HONOUR: What is the relief that you seek in your order?

MR GOLDIE: I would be seeking prohibition to prevent the Minister giving effect to relying upon the decision in any way. I would be seeking mandamus that the Minister be ordered forthwith to return the $10,000 surety to Ms Finnis, and as ancillary relief, a writ of certiorari directed to the second respondent to bring the visa before this honourable Court to be quashed.

HIS HONOUR: Yes. Now, may I ask you a highly practical question? You are, apparently, still in custody. Is that correct?

MR GOLDIE: At this stage, yes, your Honour.

HIS HONOUR: Now, your case, if it came before this Court, would probably not be listed until about June of next year, maybe later. What is the advantage to you of having that matter determined at such a long period of time into the future whilst you remain in custody in the meantime?

MR GOLDIE: Yes. Your Honour, there is another application currently before the Full Court of the Federal Court of Australia in the matter of an application for a temporary visa. That matter - - -

HIS HONOUR: But my understanding is that it is not competent to courts to grant these visas. The Act limits the grant of the visa to the Minister. Is that not correct?

MR GOLDIE: Yes, your Honour. What we expect to happen is in the event that the Full Court appeal is successful, the matter will be remitted to the Administrative Appeals Tribunal to be re-heard. The advantage to that, your Honour, is this, that in the event that this Court was of a mind to grant an order nisi in this particular application to date, to be heard sometime next year, that would be very strong evidence that would be used in the Administrative Appeals Tribunal that the actions of the decision-makers at that particular point in time were, for want of a better word, unlawful.

HIS HONOUR: I do not see why. This Court does not grant an order determining of any matter; it simply decides that there is a reasonable matter to be argued.

MR GOLDIE: Yes, your Honour, I understand that.

HIS HONOUR: This is not a matter that I can remit to the Federal Court, I assume. I assume that this is a matter which this Court, under the current provisions of the Act, is obliged to deal with for itself. Is that correct?

MR GOLDIE: As I understand the position, yes, your Honour. The matter cannot be remitted to the Federal Court. I stand to be corrected.

HIS HONOUR: So that the mere fact that an order nisi is granted does not determine anything. It simply determines that there is an arguable issue; it does not determine anything about the merits of that issue.

MR GOLDIE: I understand that, your Honour, yes.

HIS HONOUR: So I do not think that you could take any comfort, or that the Federal Court or the Administrative Appeals Tribunal would decide the fact that an order nisi has been granted is in some way determinative of what they should do. They certainly should not consider that.

MR GOLDIE: No, your Honour. The issue, in effect, is this, that there are other proceedings on foot between myself and the Minister which may well take some time to conclude, in any event. I have now been in custody for 20 months. There are some State matters that are being dealt with later this week, which we expect to conclude very quickly, and - - -

HIS HONOUR: Now, could I just ask you this. I did raise with you earlier the question of the very great delay between the date of the decision which you now attack - 1998 - and the present. Is there anything else that you wish to say as to why, if you contended that that was an invalid decision by an officer of the Commonwealth, you did not take proceedings earlier to seek the issue of the relief that you now belatedly seek from this Court?

MR GOLDIE: Yes, your Honour. The matter was first heard before the Federal Court of Australia in June 1998.

HIS HONOUR: Which matter?

MR GOLDIE: There was a matter for false imprisonment which cited this particular visa as being unlawful. That was commenced on 15 June 1998 and was stood down in November 1998. The reason it was stood down was to allow the Full Court appeal to proceed on the permanent visa matter, which comes up to this Court next.

After the matter went to the Full Court of the Federal Court there was then a delay of some six months before the matter was filed again in the Federal Court of Australia and the matter was filed again in the Federal Court of Australia in April 2000. His Honour Mr Justice French disposed of the matter in April 2000. It was filed in December 2000 and this action was filed in January 2001 and we have been waiting for the matter to come on for hearing since January 2001.

HIS HONOUR: I think the matter was before the Court at an earlier date. In fact, it was listed before me in March 2001.

MR GOLDIE: Yes, your Honour.

HIS HONOUR: And on that occasion I was told that counsel appearing in your interest was seriously ill and that the matter had to be adjourned.

MR GOLDIE: That is correct.

HIS HONOUR: So, it was then stood over and I do not know why it has taken such a long time to come on but it is on now.

MR GOLDIE: That is correct, your Honour.

HIS HONOUR: Have you said everything substantially that you want to say in support of your application in matter No P1 of 2001?

MR GOLDIE: Your Honour, substantially if I say that in the event that your Honour forms the view that there is an arguable point in this case and that, in fact, the decision was, in fact, beyond the decision-maker's power then the primary relief sought, of course, would be the writ of prohibition, which, as I understand the - - -

HIS HONOUR: That is directed at an officer of the Commonwealth to prohibit him or her from proceeding on the decision, but may it not be said that in this case there is nothing to prohibit in that the order has been complied with, you provided the funds and there is nothing now to stop being done?

MR GOLDIE: That was one view that was taken in the respondents' submissions, your Honour, yes, but that would still leave the ancillary relief of mandamus for the second prosecutor who seeks the return of the surety which was, in effect, not required on that day or at all. The third relief would be, of course, certiorari to quash the decision. If I could just say this, your Honour, one thing about delay, the respondents have been aware that this particular visa has been unlawful and/or invalid since 15 June 1998. Now, perhaps if I could refer your Honour to my affidavit sworn and at page 28 of that affidavit you will find an email document.

HIS HONOUR: It is very hard to read.

MR GOLDIE: It is very hard to read. I apologise, your Honour. I do have a clearer copy now, which I am quite happy to make available to the Court in the ordinary course of events.

HIS HONOUR: Well, what is the passage you want to read? Just read me the passage.

MR GOLDIE: If I just read the passage, the second two passages on the second page where it says:

It may be unwise to now deny Goldie permission to work. Following his application to the Federal Court for judicial review of the AAT decision, he would, as the holder of a bridging visa class B, have been entitled to apply for a bridging visa class A. That visa would have entailed permission to work. There seem to be three options for resolving this situation:

(a) grant a BVE with work rights; or

(b) accept that the grant of the previous BVE was unlawful (because at the time it was granted he was not an unlawful non-citizen), and construe the application which was lodged for the BVE as being an application for a BVA (doctrine of substantial compliance), thus allowing the grant of a BVA; or

(c) do nothing. It is unlikely that the Federal Court could, on an application for interlocutory relief in respect of a damages claim, make any order compelling the Department to grant Goldie either a BVE with work rights or a BVA. However, the difficulty with this option is that the Department is, technically, in the wrong, and we should be seeking to mitigate the damages which may eventually be payable. By denying Goldie permission to work we would possibly be increasing the quantum of his damages claim (on the assumption that his claim may become an action in negligence in addition to the claim for unlawful imprisonment).

In other words, your Honour, on 15 June - - -

HIS HONOUR: Who is Mr Gregg?

MR GOLDIE: Ross Gregg was the case legal officer for my own particular case. He has dealt with the case extensively since about 1997. This particular email was sent on 15 June 1998. Now, in my submission, what was open to the Minister on 15 June 1998 to do was this - and if I could refer your Honour, perhaps, to the Act itself, to section 116 of the Act and at section 116(1)(f) and it is headed "Power to cancel" and at subparagraph (1) it says:

Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that -

and at subparagraph (f) it says:

the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth -

Now, in my submission, your Honour, what was open to the Minister on that day was knowing that the visa was, in fact, unlawful, as is conceded in the email dated 15 June 1998. It was open on that day for the Minister to cancel that visa, simply set it aside.

The reason that the Minister became of the unlawful aspect of the visa was simply this. An application was filed in the Federal Court of Australia. Immediately the application was filed on 1 June 1998, the Minister formed the view, or his Delegate formed the view, that the visa was, in fact, unlawful at that date; that the provision of surety was not required and it was unlawful; that the no-working conditions were unlawful. Unfortunately, in this case, your Honour, which is a matter which is currently being vigorously agitated before the Federal Court, the Minister on that day chose to take option (c), which was to do nothing.

The Minister did nothing. They knew they were technically in the wrong; they knew the visa was unlawful; but what they chose to do instead was allow the matter to be agitated before the Federal Court of Australia, and now ultimately before this Court. I would submit this, your Honour: although there has been delay in this Court, in me filing the application, the delay - although there is considerable delay, and I concede that there is considerable delay. The Minister has been aware for some three and a half years that the very matter that is agitated before this Court today, in fact, the visa was unlawful. It has been open to the Minister for some - - -

HIS HONOUR: How did you get that letter? Did you get that letter under the Freedom of Information Act 1958 , did you?

MR GOLDIE: Your Honour, this particular document was discovered as part of the Federal Court proceedings.

HIS HONOUR: I see.

MR GOLDIE: And that was discovered in September 2000. It took some three years to discover the document - two years.

HIS HONOUR: Yes. But you do not seek any relief directed to the Minister except the relief of mandamus - relevantly, that he be required to return the security bond. Now, in relation to that sum, when did you breach the condition that was - the subsequent breach that is said, presumably, to warrant the confiscation of the surety amount?

MR GOLDIE: Yes, your Honour. The breach is alleged to have occurred on 1 July 1998. The circumstances of the breach are somewhat strange, to say the least. About the - - -

HIS HONOUR: Am I concerned in those circumstances in these proceedings, or not?

MR GOLDIE: No, you are not, your Honour. What happened on the breach is on 19 or 22 June 1998, in the Federal Court of Australia, the Minister conceded the fact that on 27 February 1998, for the purpose of interlocutory relief, that I was not an unlawful non-citizen. There was then some correspondence back and forward, and there was another visa decision made on 19 June 1998. No one knows what the terms of the decision made on 19 June 1998 were. There has been no decision in respect of the decision in 19 June 1998; neither was there any continuation of the surety or any prohibition on working that we are aware of. In this matter before your Honour today, there was a notice to produce the relevant documents on 19 June 1998 to the court. Now, I have not received those documents as yet, and there is some doubt as to what conditions were or were not attached to the visa on that date.

HIS HONOUR: Yes. Anyway, I think I have the gist of what you say, and I think I will ask Mr Macliver now to say why the orders should not be made. Mr Macliver, what do you say in response to what has been put to me? Why is this not a reasonably arguable case? The only substantial point against it seems to be the delay, but it is said that for a very long time, your client knew of the suggested illegality of the visa category E that was imposed, and incidental to that, the imposition of the requirement to lodge the surety; and that, if this Court were to so hold, and strike down that visa, and therefore the conditions, as unlawful, that your client would be duty bound to return the sum that was unlawfully extracted from him for that particular visa. Now, what is wrong with that logic?

MR MACLIVER: Your Honour, two things wrong with that logic. Firstly, the respondent does not concede that the visa issued was illegal. It is true that the respondent has conceded in the Federal Court in other proceedings that at the time the bridging E visa was granted by the second respondents in matter P1, that is Mr McCormack, on 27 February 1998 that, in fact, the applicants at that time held a bridging B visa and that was a visa that was valid until, I think, 21 days after a decision was made in respect of his Administrative Appeals Tribunal proceedings. The Tribunal made a decision in those proceedings on 18 February 1998 so that the bridging B visa would have continued, in effect, until 21 days after that decision of the Tribunal.

So, the respondent has conceded that, as at the date of Mr McCormack's decision on 27 February, he was not, in fact, an unlawful non-citizen because he was, at that time, the holder of a bridging visa B which continued, in effect, or would have continued, in effect, for another few weeks, but the - - -

HIS HONOUR: Now, you have just been repeating what Mr Goldie has said to me.

MR MACLIVER: Yes.

HIS HONOUR: So, what is the flaw in his logic that if this was an unlawful grant of a visa E, then the conditions that were attached to it, namely the deposit of a surety, an amount of $10,000, falls with the lawfulness of the visa and, therefore, that should never have been extracted and, therefore, it should be returned. What is wrong with that?

Can I just say to you, Mr Macliver, that it is now 5.30, 5.35 in eastern Australia. The Court has before it tomorrow a very substantial proceeding. It is by reason of the legislation that I have to spend my time here sorting out visas E and B and, as far as I am concerned, I do not need too much persuasion to send this matter off to a Full Court. I am not going to spend my time, I do not have the time, the Court does not have the time and I do not, trying to sort this out here and now. I just have to determine whether there is an arguable case.

This is not your personal responsibility but it is the consequence of the legislation that your Minister and his predecessor secured from the Parliament. So, sometimes that is just going to have some consequences in this Court.

MR MACLIVER: Yes. I appreciate that, your Honour. I will endeavour to be as brief as I can. Two matters: firstly, the respondents refer to and relies upon section 65 of the Migration Act which requires the Minister or, in this case, of course, his Delegate, the second respondent, to grant a visa if satisfied that the conditions were met or to refuse the visa if not satisfied.

Now, in this case, while it has been conceded that the applicant was, in fact, the holder of a bridging B visa at the time of Mr McCormack's decision, Mr McCormack was not aware of that and Mr McCormack was satisfied, in fact, that the applicant was an unlawful non-citizen.

HIS HONOUR: Yes, but how could he be an unlawful non-citizen if he has a bridging visa, bridging visa category B?

MR MACLIVER: Yes. That is so, but the decision - - -

HIS HONOUR: Well, therefore the premise upon which the exercise of the power has taken place is knocked away, at least arguably. Is that not so?

MR MACLIVER: Yes, I would have to concede that, your Honour, even though Mr McCormack - - -

HIS HONOUR: Well, once that is knocked away, the conditions that were attached to the grant of the visa also fall with the grant of the visa category E. If that is so, then the money was unlawfully extracted, and if that is so, the money should be returned to the person from whom it was extracted, namely Ms Finnis.

MR MACLIVER: Yes. Your Honour, that means that I need to take your Honour very quickly to the history of the matter, but there were two subsequent bridging E visas issued to this applicant and that is referred to in the decision of his Honour Justice Cooper in the Federal Court, in his decision in matter QG 51/1998, an unreported decision of 31 July 1998. I believe a copy of that decision was provided to your Honour.

HIS HONOUR: I do not have it, but I hope it is here. What is the name of the case?

MR MACLIVER: Goldie v Commonwealth of Australia, matter QG51/1998. It is the unreported decision of his Honour Justice Cooper delivered 31 July - - -

HIS HONOUR: It is an unreported decision of the Federal Court? Do you have that?

MR MACLIVER: Yes.

HIS HONOUR: No, I am told we do not have that.

MR MACLIVER: I am sorry, your Honour, I was instructed that a copy of that was provided to the Registry for the purpose of the previous hearing.

HIS HONOUR: I have a reported decision of Goldie. I have a decision of Professor Hotop, Deputy President. But I do not have a decision of Justice Cooper.

MR MACLIVER: I am sorry, your Honour, I was instructed that a copy of that decision was provided to the High Court when this matter came on on the previous occasion.

HIS HONOUR: These are in P22. What about P1?

MR MACLIVER: Yes, it will be in P1, your Honour.

HIS HONOUR: I am told there are no unreported decisions in P1. Anyway, you might be able to help me by indicating what Justice Cooper decided.

MR MACLIVER: Yes, your Honour. His Honour's decision was in relation to Mr Goldie's application to the Federal Court which he has just referred to, at 1 June, and his seeking interlocutory relief. Included in that interlocutory relief was the return of the $10,000 surety. His Honour Justice Cooper noted that there had been two subsequent bridging E visas granted to Mr Goldie, one granted on 20 May 1998 and a further granted on 19 June 1998. His Honour refers to the granting of those visas at pages - - -

HIS HONOUR: At those times, was the bridging visa category B still in force?

MR MACLIVER: No, your Honour. As I submitted to your Honour, that visa would otherwise have expired 21 days after the Administrative Appeals Tribunal decision which was made on 18 February. So it would have - my instructing solicitor says 28 days, so it would have expired on 18 March and his Honour refers to that fact. His Honour refers at pages 2 and 3 to the - - -

HIS HONOUR: So is the point that you are making that whatever may have been the defect of the original order by Mr McCormack and the conditions which he attached to it, by the time the subsequent orders were made, that order having been spent on 18 March 1998, that by that time the bridging visa B was not in force and that, therefore, it was competent to make the bridging visa E in respect of Mr Goldie.

MR MACLIVER: That is right, your Honour. At page 3 of his decision his Honour notes that:

On 19 June the applicant was granted a further Bridging E visa -

that is the third one -

subject to the work prohibition and continued money security conditions.

Then relevantly at page 14 of his Honour's decision his Honour says at about the middle of the page, about point 4:

Whether or not the decision of the second respondent to grant a Bridging E visa is ultimately held to have been made in error -

that is the one on 27 February which Mr Goldie now seeks to attack in this Court -

the legal position is that as an administrative act, it is presumed to be valid until set aside -

and his Honour referred to this Court's decision in Ousley v The Queen [1997] HCA 49; (1997) 148 ALR 510 at pages 555 to 556. His Honour then goes on to say:

The result is that the Bridging E visa, when it issued on 27 February 1998, was for all purposes a valid and effective visa until set aside.

The grant of that Bridging E visa on 27 February 1998 had two consequences of immediate relevance.

The first which we do not need to consider. The second - he says:

The second consequence is that when the second respondent granted a Bridging E visa to the applicant on 20 May 1998, the applicant then satisfied the criteria in clause 050.21 of Schedule 2 because he was then the holder of a Bridging E visa, it not having been set aside on review at that time. Likewise, when the further Bridging E visa was granted on 19 June 1998, the applicant satisfied the criteria for the grant of such a visa.

It is in respect of the third visa which, as his Honour noted, was granted on the same conditions and subject to the same surety as the second and the first visas that the applicant has breached his conditions. There is reference in Mr Corbould's affidavit to in or about the beginning of July the applicant leaving his then residence in Queensland, ceasing to report to the Hervey Bay police and, as far as the Department was concerned, disappearing. The Department did not know where the applicant was from the beginning of July 1998 until his subsequent arrest by the New South Wales Police was also deposed to in Mr Corbould's affidavit in February 2000, your Honour.

We say, therefore, that there was a clear breach of the conditions of the third visa. His Honour found that the third visa was issued on the same conditions. Even the second visa there would have been a breach of the conditions of that and his Honour, as I say, found that because the first visa had not - - -

HIS HONOUR: Can I just interrupt you to get it very clear in my mind. The submission that you put on behalf of the Minister is that whatever may have been the disqualifying element that may arguably have rendered the first visa invalid, because of the fact that Mr Goldie was not "an unlawful non-citizen", being in possession of a category B visa, that that visa, that is to say the first one, expired within 28 days, ie, on 18 March 1998, and that thereafter the validity of any visas that were granted to Mr Goldie have to be determined on their own merits, that subsequently two other visas were granted, the second of which certainly, as Justice Cooper has found, was granted in circumstances where there was no similar invalidating element in the grant of the third visa and that, accordingly, the grant of the third visa was valid and that, as Mr Goldie has himself conceded, he was in breach of the conditions of that third visa and it is in respect of the breach of the conditions of the third visa and of the conditions attached to it that the forfeiture has occurred that he seeks now to reverse. Is that correct?

MR MACLIVER: That is right. That is the position, your Honour, yes, and we would rely - - -

HIS HONOUR: And, in addition to all those points, you would, I suppose, raise the consideration that the very long delay between now and 1998 is a discretionary reason why the Court would not grant the relief that Mr Goldie seeks, namely the order nisi.

MR MACLIVER: That is right, your Honour, and we have referred to that question of delay at paragraphs 20 to 22 of the respondents' outline of submissions. That is the document dated 28 March.

HIS HONOUR: I wish you would check as to what happened to Justice Cooper's judgment, because until you read that to me I did not really understand the argument of the respondent. I mean, too late now, but that ought to have been before me so I could have read it.

MR MACLIVER: Yes.

HIS HONOUR: It might have taken less time to elucidate what Mr Goldie's point was and it might have been able to be put to him to save time.

MR MACLIVER: Yes.

HIS HONOUR: What is the paragraph of the submissions that you are referring to now?

MR MACLIVER: At paragraphs 20 to 22 the respondents refer to the issue of delay, your Honour.

HIS HONOUR: Now, I have a first respondent's outline of submissions in P1 of 2001. It does not go to 20 or 22.

MR MACLIVER: No. That was filed right at the beginning. Then there was a subsequent, more detailed submission - - -

HIS HONOUR: Can I discard that? Do I have to look at that, or can that be discarded? Has that been replaced by the subsequent submissions?

MR MACLIVER: Yes, I think so, your Honour.

HIS HONOUR: These are submissions which were filed in March of this year?

MR MACLIVER: 28 March, your Honour.

HIS HONOUR: Now, what is the paragraph?

MR MACLIVER: Paragraphs 20 through to 22 deal with the issue of delay.

HIS HONOUR: Yes.

MR MACLIVER: And the respondents refer there, your Honour, to the fact that the applicant took no further proceedings or did not pursue this matter in the Federal Court in respect of which his Honour Justice Cooper delivered judgment in relation to the claim for interlocutory relief, took no further steps in those proceedings because at that time he had ceased living in Queensland and was living in New South Wales under an assumed name and did so until his subsequent arrest by the New South Wales police on a warrant which had been issued in Western Australia in August 1998, that arrest taking place in February 2000.

So, there was a substantial period where the applicant did nothing and we say that the reason for that is relatively self-evident, your Honour, and that that is a further reason why we say that order nisi should not be granted in this matter. If it please, your Honour, those are my submissions.

HIS HONOUR: Very well. What do you say in reply, Mr Goldie?

MR GOLDIE: Yes, your Honour. I will be very quick in this particular matter. Referring to the decision of his Honour Justice Cooper, it says in that decision that there was a visa decision on 19 June 1998 and that there was a prohibition on working and a continuation of surety. But, what the respondents say that the breach of conditions was, that I no longer resided at the address that I was supposed to reside at. There was no residential condition on the visa on 19 June 1998. The prohibition as elucidated by his Honour Justice Cooper in his decision was that I do not work and a surety would continue until the hearing of the Federal Court matter. There was no breach of conditions.

HIS HONOUR: It did not contemplate that you would disappear.

MR GOLDIE: I did not disappear, your Honour. There were ongoing proceedings which went to the Federal Court of Australia. The Department was at all times aware and was at all times informed, as they were required to be so, by my counsel of where I was. They were aware of who the counsel was. They were aware the proceedings - - -

HIS HONOUR: Well, they say that you disappeared from the face of the earth for two years. That is the note that I have. You disappeared from July 1998 until February 2000.

MR GOLDIE: I would strenuously contest that, your Honour. In fact, it has been convenient for the Department to say that I had disappeared for two years, but if you read the decision of his Honour Justice Cooper, there was, in fact, no residence or reporting conditions on the visa that was granted on 19 June 1998. In order to try to facilitate the resolution of that question, on 8 May this year, I served a request for further and better particulars and a notice to produce, on the respondents in this matter, to actually produce the decision of 19 June 1998, and they simply failed to do so.

They have not produced any notification of conditions and, as far as I am concerned at this point in time, the only condition at that point in time was that there was a prohibition on working and the surety was required to continue. There was no substantive breach of the conditions of the visa. The Department contend there was a substantive breach of the conditions of the visa and that was there was a breach of a residence condition, but there is no evidence before this Court or any other court, on any file of the Department, that there was a requirement to be a residence or reporting condition on that visa on 19 June 1998.

Now, I have tried to get the relevant documents from the Department for some twelve months now and repeated requests have failed to produce those particular documents. In effect, what I am saying is this, your Honour. There was no breach of conditions on any of the visas. There is no evidence there was a residence or reporting condition on the third visa the Department now relies on and that visa would have been in effect until 15 January 2001. In the absence of any decision records or any other matter, there certainly was not a decision record tendered to the Federal Court. The only matter that can be said is the respondents say that they required a surety, which was provided and they continue to hold.

There is some doubt as to whether the decisions on 20 May 1998 and 19 June 1998 were, in fact, valid, and the reason there is a question of validity of those decisions is, in the event that the first visa falls on 27 February 1998, then all of the subsequent visas fall at the same time. The reason for that being the two subsequent decisions relied on the fact that I was the holder of a bridging visa E which was, in fact, invalid in any event. The arguable point in this case is this, your Honour. The respondents have been aware of the unlawfulness and they simply have not been able to produce any evidence that I was required to report from 19 June 1998 onwards.

Can I just check, your Honour, perhaps - does your Honour have before him the request for further and better particulars and the notice to produce that was forwarded to the Court and to the respondents on 8 May 2001?

HIS HONOUR: No, notices to produce are generally inter partes. The Court is not involved in them. The Court is involved in subpoenas, but not in notices to produce.

MR GOLDIE: Yes, your Honour. I did forward a copy to the Court, but there was certainly a copy forwarded to the Australian Government Solicitor and to date those documents have not been produced, and they would, in fact, be determinative.

HIS HONOUR: It is said that the funds used to draw the bank cheque on the National Bank in Belmont, Western Australia, were supplied from your bank account in Mackay in Queensland; is that correct?

MR GOLDIE: What transpired, your Honour, was that because I was in immigration detention, Ms Finnis obtained one of my cheques and obtained a National Australia Bank cheque with one of my cheques. So really - - -

HIS HONOUR: This means that, in fact, it is not Ms Finnis's money, it is your money.

MR GOLDIE: Well, technically, it is my money, your Honour, but the reason that Ms Finnis was named in this is because the Department received the money and issued the receipt to Ms Finnis, and that is a matter that has - - -

HIS HONOUR: Yes, but, Mr Goldie, the whole point of having a surety is to have some third person - in this case, a citizen of Australia - who is willing to put up funds of their own to ensure that a person will comply with the surety conditions. Here, there was no peril to a citizen of Australia. She was simply putting up your money for conditions which you could feel free to breach and apparently did breach.

MR GOLDIE: No, in fact, that - - -

HIS HONOUR: You conceded earlier that you did breach the conditions.

MR GOLDIE: Well, there is some doubt as to what the breach was. The breach that the respondents say - - -

HIS HONOUR: Well, you told me yourself that you conceded that there was a breach.

MR GOLDIE: I conceded a breach to the extent that I did not reside at the address the Department says that I was required to reside at. However, as I have tried to elucidate before this Court, there is no evidence that a residence condition was ever imposed on this particular visa in question. In terms of the surety, Ms Finnis has since paid several legal bills on my account, which obviously - the $10,000 would go some way to reimbursing Ms Finnis for those.

I cannot really take the submissions any further, save to say that the Minister has been aware of the unlawful nature of this visa for some three years and the unlawful nature of the conditions and has not been able to put any evidence before this Court or any other court that there was, in fact, a breach of a residence condition after 19 June 1998 and I really cannot take the submissions any further.

HIS HONOUR: Yes, very well. Thank you.

Before the Court is an application for the issue of the constitutional writs of prohibition and mandamus directed to the Minister for Immigration and Multicultural Affairs ("the first respondent") and to an officer of his Department ("the second respondent"). The application is brought by Mr Brian Goldie ("the applicant",) and another person who has not been actively involved in the application, (Ms Valerie Finnis). The applicant, although in custody, has appeared before me by video link from Perth. The first respondent has appeared by counsel to resist the grant of the order nisi. The second applicant and the second respondent have not appeared.

The relief sought by the applicant

An order nisi should be granted in proceedings such as the present if there is a reasonably arguable case to be considered by the Court that a relevant breach of the law has been established on the part of an officer of the Commonwealth, namely, the Minister or the officer of his Department. This Court has held that, in the case of the relief that is claimed in this case, it is necessary for the applicant to demonstrate that the error of law relied upon is one which took the officer concerned beyond that officer's jurisdiction and power. Although I have myself questioned that requirement (and although it has never been necessary for the issue of one of the writs named in the Constitution, 75(v), namely injunction), it is proper that I approach the application on the footing of the current doctrine of the Court: cf Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 74 ALJR 1348 at 1367-1369 [83]- [89]; [2000] HCA 47; 174 ALR 585 at 610-612.

The relief sought in the draft order nisi calls upon the respondents to show cause: (a) why a writ of prohibition should not issue out of this Court directed to the first respondent prohibiting him from proceeding to act on the decision made by the second respondent on 27 February 1998 that the second respondent was satisfied that the first applicant had satisfied the criteria for the issue of a bridging visa E; (b) why a writ of mandamus should not be issued to the first respondent directing that the surety bond deposit required in respect of the grant of the bridging visa E on 27 February be returned, inclusive of interest, to the second applicant, Ms Finnis; and (c) why a writ of certiorari should not issue out of this Court, directed to the second respondent removing into this Court the decision made by the second respondent on 27 February 1998, in order that it should be quashed.

In my opinion no reasonably arguable case has been established by the applicant for the issue of the constitutional writs and the writ of certiorari which he seeks.

The facts are complicated. The application in the original jurisdiction of this Court has to be dealt with by the Court because of the inability of the Court to remit the matter to the Federal Court, as would otherwise naturally be done. Because of this Court's responsibilities under the Constitution and as the final appellate court of Australia, it should not, in my respectful opinion, be the duty of the Justices, as a trial court, to endeavour to sort out the intricacies of migration law and visa regulations, as has been my lot today. The burden of doing so is very considerable. Especially is this so where the facts are many, the law is intricate and the applicant is not legally represented.

However, in default of any capacity to remit the matter to the Federal Court or elsewhere, it is my duty to consider whether the order nisi should be issued. In giving the application consideration, I must keep in mind the cardinal role of s 75(v) of the Constitution in our constitutional arrangements. That provision requires that all officers of the Commonwealth conform to the Constitution and to the laws made under it. That law includes the Migration Act (Cth) ("the Act") and Regulations. I approach the matter with those obligations in mind.

Discretionary grounds for refusing relief

The essential basis for my refusal of the relief sought by the applicant is that I am unconvinced that the applicant has made out a case that has reasonable prospects of success. Ms Finnis, who was at the time in a personal relationship with the applicant, provided an amount of $10,000 security as surety for the grant to the respondent of the bridging visa E which is challenged. However, it is not contested by the applicant that that amount was paid from Ms Finnis's cheque account pursuant to the deposit of a covering cheque in her favour, on the date of her payment, drawn upon the applicant's own bank account in Queensland.

The purpose of the provision of sureties, and the provision by such sureties of money deposits to ensure compliance of a person with court or administrative orders, is to ensure that the person providing the funds is willing to accept some risk as to their own moneys: cf Cabal v United Mexican States [2001] HCA 43; (2001) 181 ALR 169. In this case, Ms Finnis was not at risk at all in that regard. The moneys which she provided were effectively the moneys of the applicant. He did not dispute that that was so. Upon that footing, the principal practical object of these proceedings would be to secure the return to Ms Finnis, as I would infer to the applicant, of the sum of $10,000 which was forfeited, apparently with justification, in circumstances which I will shortly describe.

The circumstances in which the funds were deposited therefore make it unlikely that relief, certainly that part of it which is discretionary in character, would be provided to require that those funds be restored nominally to Ms Finnis but, in actuality, to the applicant.

In addition, a further discretionary consideration arises in respect of the writs of mandamus and certiorari which would be vital to the applicant's success. This is because of the very great delay between the decision which is challenged and the present time. That delay would be even greater if account were taken of the 6 to 12 months time that this Court would require to reach the return of the order, if an order nisi were now made. By the time it was considered by this Court and decided, the departmental decision which is challenged, having been made in February 1998, would be three years and more in the past. In the circumstances, this is gross delay.

Persons who seek the constitutional writs should pursue their remedies with appropriate expedition. Sometimes, as was demonstrated in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52 at 70 [82]- [83], a satisfactory explanation is given for the delay. In the present case, I do not believe that the explanation proffered for the delay in invoking the jurisdiction of this Court is full or satisfactory.

It is my view that all of the constitutional writs mentioned in s 75(v) of the Constitution are discretionary and that in this respect our constitutional writs differ from the prerogative writs from which, historically, they are derived: Aala [2000] HCA 57; (2000) 75 ALJR 52 at 81-83 [145]- [149]. This view does not yet command the assent of a majority of this Court. See Aala [2000] HCA 57; (2000) 75 ALJR 52 at 65 [54]. But upon all views the constitutional writ of mandamus and the writ of certiorari sought by the applicant are discretionary. So far as discretion is involved in the grant of relief to the applicant I do not doubt, for the reasons stated, that it would be refused. That conclusion (except perhaps, on current doctrine, prohibition) disposes of all relief sought. But even prohibition is not viable on its own. Accordingly, the application should be dismissed.

Additional substantive grounds

In case the foregoing is in any way flawed - and in deference to the arguments of the first applicant who is in custody - I will deal briefly with the merits of his submissions.

When regard is had to the substance of the matter which the applicant wishes to raise in objection to the validity of the bridging visa E granted to him on 27 February 1998, I have been assisted by the analysis which Cooper J, in the Federal Court of Australia, gave to the circumstances of the case in Goldie v Commonwealth of Australia and Minister for Immigration and Multicultural Affairs (unreported) 31 July 1998. That decision has been placed before me.

In that case, Cooper J set to one side the question of the validity of the order made by the second respondent on 27 February 1998. He did so on the footing that the visa granted on that occasion (and hence the conditions imposed on that occasion) had been overtaken by later events. That visa expired 28 days after it was made, ie, in late March 1998.

Whether or not the visa of 27 February 1998 was validly granted, and the conditions attached to it validly imposed, quickly became irrelevant. The bridging visa E was renewed on 20 May 1998. It was subsequently renewed again on 19 June 1998. It is the visa of 19 June 1998 which is the one which was in force at the time of the events to which I will now refer.

Upon that footing, the basis of challenge to the grant of the bridging visa E made on 27 February 1998 - the one named by the applicant in his process - does not appear to be arguably available as relevant to the circumstances of his case. His attack must address the grant of the visa on 19 June 1998. As Cooper J indicated, on that day the bridging visa E was not the subject of a suggested disqualification by reason of the prior grant of a bridging visa B. Accordingly, the foundation for the applicant's legal arguments and the attack on the visa granted on 27 February 1998, even if correct in law, would not avail him.

According to the material placed before me, the applicant, whilst the subject of the bridging visa of 27 February 1998,with the conditions attached, including conditions as to residence, breached the conditions. He did so between 1 July 1998 and 15 February 2000. He was arrested in New South Wales on 15 February 2000 pursuant to a warrant issued in relation to a charge of stealing from his former employer. He was returned to Western Australia where he still is.

In all the foregoing circumstances, the prospects of the applicant's being able to establish the legal objection that he maintains to the validity of the visa of 27 February 1998 appear extremely remote. In that regard I rely on what Cooper J has said. It follows that I do not consider that the applicant's principal argument for his attack on the validity of the visa he names is reasonably arguable.

Conclusion and order

In any case, as I have already indicated, the applicant's argument runs into the problem of the very great delay that has occurred between the decision that is impugned and now. And if that were not enough, the essential practical point of the case, being to restore nominally to Ms Finnis the sum of $10,000 which she deposited as surety for the applicant, is not something that the Court would be likely to order in the exercise of its discretion to provide the discretionary constitutional and other relief that the applicant would need. It would not do so because such relief would (as I would infer) simply restore the sum of $10,000 to the applicant, who should not have provided it to Ms Finnis, as apparent security provided by her, in the first place.

Not being convinced that a reasonably arguable case exists, nor one that has any real prospects of success, I dismiss the application for orders nisi in the form of the document which the applicant filed. He must pay the first respondent's costs. I certify for the appearance of counsel in chambers.

AT 6.11 PM THE MATTER WAS CONCLUDED