Dang, Ex parte - Re MIMA M118/2001 [2002] HCATrans 151 (5 April 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M118 of 2001

In the matter of -

An application for Declarations, Certiorari, a Writ of Prohibition and Injunction against THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte -

DUNG CHI DANG

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 5 APRIL 2002, AT 3.02 PM

(Continued from 4/4/02)

Copyright in the High Court of Australia

MR P.G. NASH, QC: If your Honour pleases, I appear for the applicant with my learned friend, MR A.F.L. KROHN. (instructed by Access Law)

MR P.R.D. GRAY: Your Honour, I appear for the respondent. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, thank you, Mr Gray.

MR GRAY: Your Honour, I am very grateful to the Court for standing the matter over until 3.00 pm and I am grateful to my learned friends for consenting.

HIS HONOUR: Now, I have seen a draft of the case stated. What is the position, Mr Nash?

MR NASH: The position, your Honour, is that that statement of facts is agreed between the parties but a problem arises in the course that your Honour was proposing to take which we think can be easily overcome. Our learned friends are understandably reluctant to consent to the order nisi in respect - - -

HIS HONOUR: They are not asked to consent to anything. I would not propose to make any order by consent, save so far as the fact of agreement of facts is recorded, but there would be an order nisi not by consent. It would simply be made.

MR NASH: I was proposing, your Honour, to rely upon the authority of what Justice Hayne had to say in Meng Kok Te inter alia.

HIS HONOUR: Yes.

MR NASH: But what we seek at the moment, your Honour, is an order nisi in respect of ground 3, that that not be made returnable but a case stated in terms of the draft that your Honour has to go to the Full Court.

HIS HONOUR: Yes. Now, Mr Gray, what is the position of the respondent? As I say, it is not my intention that there should be any order nisi by consent. On the contrary, I would carry the responsibility for making the order. Do you seek to be heard against my making an order nisi for it would be, I think, certiorari, prohibition and injunction, that is, it would be paragraphs (c) and (d) of the draft order nisi relating to the decision identified in (a) - I am not minded to grant an order nisi in respect of the declarations that are sought; that seems to me to be unnecessary - but grounded for the moment only on ground 3?

MR GRAY: Your Honour, I understand the position and thank your Honour. I may have been under a misapprehension as to the exact status on which the respondent was required to respond.

HIS HONOUR: Yes.

MR GRAY: Might I very briefly state my submissions in resisting the grant of the order nisi?

HIS HONOUR: Can I say this to you, Mr Gray. If we are to embark upon the debate about the arguability of this ground, it seems to me to follow inexorably that I should be stating no case for the Full Court. If the points that are sought to be agitated by way of case stated to a Full Court are not arguable, then I should not be entertaining the application for a case stated. Either there is a point that is arguable or there is not. If there is a point that is arguable, let us state a case. If there is not a point that is arguable, then let us hear the whole debate about the whole of the application for constitutional and other relief. I will not embark on it otherwise.

MR GRAY: I do not seek to add anything to the written submissions that have already been filed in the Court by the respondent but those submissions stand for the proposition or support a proposition that the case is not arguable and I cannot and do not resile from that, your Honour.

HIS HONOUR: Yes.

MR GRAY: Your Honour has said in Te that substantially identical arguments raised in that case are not so unarguable as to warrant the refusal of an order nisi. I do draw that to your Honour's attention. Unless your Honour is persuaded to the contrary of that view that your Honour formed at that time by the submissions that have been filed by the respondent, then, of course, your Honour will take the same course that your Honour took in Te. But, be that as it may, on behalf of the respondent, I do not resile from the submission that ground 3 is not arguable. Those are the submissions for the respondent.

HIS HONOUR: Yes, thank you. Mr Nash, several matters, some of which are perhaps matters of housekeeping. What is the exhibit which most conveniently can be identified as the exhibit being the document recording the decision which is challenged?

MR NASH: The decision that is challenged is part of exhibit D, your Honour.

HIS HONOUR: To the case stated, sorry.

MR NASH: Yes, your Honour.

HIS HONOUR: In the order nisi I would propose to describe it by reference to the affidavit in support so that - - -

MR NASH: It is exhibit 18, your Honour, to the affidavit.

HIS HONOUR: Is it? Thank you very much.

MR NASH: DCD18.

HIS HONOUR: Thank you. May I take you a moment, Mr Nash, to the draft case stated that has been supplied to me. If I were to grant order nisi confined to ground 3, which I am presently minded to do, it would follow, would it not, that paragraph 2 of the case stated should be deleted?

MR NASH: Yes, your Honour.

HIS HONOUR: Secondly - and this is no more than the most minor of matters - at paragraph 24 on page 3, in the last line it reads "He was released on the lapse of the sentence". I assume it means "expiry" or "elapse".

MR NASH: I think it was originally "elapse", your Honour, yes.

HIS HONOUR: Yes.

MR NASH: It was put in that way, I understand, your Honour, because that is the word used in the prosecutor's affidavit.

HIS HONOUR: Yes, but it was a sentence that expired, did it not?

MR NASH: It expired.

HIS HONOUR: So either "elapse" or "expiry", you choose.

MR NASH: Yes, I would choose "expiry", your Honour.

HIS HONOUR: Yes. What I am minded to do, so that counsel may understand this, is that the draft case stated that has been supplied to me is a document which I will amend, first, by deletion of paragraph 2 - that would have consequences for the numbering which I will not trouble with. What is now paragraph 24 would be amended in the fashion just described. Ultimately I would propose that that case stated will be initialled and remain on the file but the parties will have to make the necessary amendments.

There are then some further directions that I would wish to consider giving. They are, first, that there be a direction that subject to any further order, whether of a single Justice or the Full Court, that the question reserved be listed for hearing at the same time as the matter of Te. Next I would propose to direct that the prosecutor in this matter should file any written submissions additional to those that are to be filed in the matter of Te by 12 noon on 9 April. Te's submissions are due by 12 noon on the 8th. This would give you 24 hours to determine what, if anything, has to be said additionally. But thereafter to give directions that subsequent additional submissions in this matter should come in at the now changed times fixed for Te, so that we get back into step with Te when the respondent files and, at the point of reply, you remain in step.

Preparation of a case stated book would be necessary, though I think not especially onerous in this case. As at present advised, it would seem to me that the case stated book would consist of the order nisi, which would include within it the various directions I have given and the order reserving the question. The case stated and its annexures - and, at least as at present advised, it seems to me that there would be no other document necessary. It may be that the parties on turning their mind to it will think that it is desirable to have something else in there, but that I think is all we need, and I would have in mind either directing or at least informing the parties that it would be expected that that case stated book would be prepared by Tuesday next.

Now, I understand that is short time and I know that you have to produce probably upwards of 15 to 20 copies of the book, but given its size, I would have thought it may still be manageable in that time.

MR NASH: There is enthusiastic nodding from my solicitor, your Honour.

HIS HONOUR: Now, lastly and perhaps most importantly - and you may wish to sit down and take a note of it so that you can consider it, Mr Nash - my present inclination is to grant an order nisi in these terms. Grant order nisi directed to the Minister calling on the Minister to show cause: (a) why a writ of certiorari should not issue out of this Court to quash the decision made by the Minister on 27 June 2000, being the decision recorded in the document of which a copy is exhibit DCD18 to the affidavit of Dun Chi Dang sworn 4 December 2001 ("the decision"); (b) why a writ of prohibition and further, or alternatively, injunction should not issue out of this Court directed to the Minister prohibiting him from taking any step to detain or deport the prosecutor or otherwise implement or give effect to the decision upon the ground numbered 3 in the draft order nisi filed on 25 February 2002, and in the order that would be taken out, I would expect that the order would run on, "namely", and then quote the ground verbatim so that the order is freestanding.

Next, I would propose to order that upon the agreed facts set out in the draft case stated initialled by me, which would remain on the file, and the documents referred to therein. I reserve for the consideration of a Full Court the question, "Did section 501(2) of the Migration Act 1958 (Cth) validly authorise the respondent to cancel the applicant's visa on 27 June 2000?". I would then propose to give the directions that I foreshadowed about listing for hearing, filing of additional submissions, filing of additional submissions by the respondent and filing of additional submissions in reply. Then, subject to what counsel may say about costs, my present inclination would be to order that the costs of the hearings of 21 March, 4 April and today should be costs in the cause and then certify for counsel.

Now, those orders are quite lengthy. The two to which I direct particular attention are the form of the order nisi and, second, the reference of question. The other directions are much more readily remediable, but do counsel wish to have a moment to reflect on either of those or are you content now to speak, Mr Nash?

MR NASH: Would your Honour pardon me a moment?

HIS HONOUR: Yes, of course.

MR NASH: Mr Krohn raised with me, your Honour, a question that I do not think is a problem. As I understand it, this leaves the remainder of our application on foot to be brought on at a later stage before your Honour.

HIS HONOUR: Given what was said earlier, my understanding of it is that were you to effectively fail on the case stated point, it would not be unexpected were you to, on remitter or on further hearing of the order nisi, then seek to add further grounds, namely, those grounds which you foreshadowed in the draft order nisi. I would expect that were you to make that application, there would then be a little debate, at least, about whether those grounds were arguable.

MR NASH: I appreciate that, your Honour, yes.

HIS HONOUR: Now, that is my understanding of the position.

MR NASH: Yes. Well, that was my understanding, your Honour, and - - -

HIS HONOUR: Yes. It is as well that it be recorded in open court.

MR NASH: Subject to that, your Honour, we have no comment to make on the orders. We are pressed in relation to Tuesday, but we understand the reason.

HIS HONOUR: Yes. Now, Mr Gray, do you wish to be heard against, or in relation to the forms of order which I have proposed?

MR GRAY: In relation to form only, your Honour.

HIS HONOUR: Yes.

MR GRAY: Two very minor things. The first is that in the order nisi that your Honour has proposed there is a reference to the word "deport". That word should be "remove".

HIS HONOUR: Yes. I took "deport" out of their draft order nisi, drafting these things - - -

MR GRAY: It is a trifling matter, your Honour. Under the scheme of the Act there is a distinction.

HIS HONOUR: Yes, I see. Well, Mr Nash, are you troubled if it becomes "remove" rather than "deport"?

MR NASH: I am indebted to my learned friend. I took "deport" as having a layman's meaning rather than a technical - - -

HIS HONOUR: Yes. Well, then if we change it to "remove". Yes, Mr Gray, you were said there were a couple of things.

MR GRAY: If your Honour pleases, the second matter is even more trifling, if that is possible.

HIS HONOUR: I doubt it. I think they are important to pick up now.

MR GRAY: Paragraph 2 of the case stated has been deleted.

HIS HONOUR: Yes.

MR GRAY: That drops out a definition which is only important as a matter of craft but nevertheless perhaps that definition could then be inserted in what is now paragraph 3 but which will become paragraph 2.

HIS HONOUR: By all means. There are very ancient race memories directed against the unnecessary definition of terms. I spent too long working with the Corporations Law where I fully expect us to reach the point relatively soon where the definite article is defined and is defined as including the indefinite article save where the case requires otherwise. So, as I say, very ancient race memories, Mr Gray, which I should not reveal perhaps. Very well.

MR GRAY: If your Honour pleases.

HIS HONOUR: Then there will be orders in the following terms:

(1) Grant order nisi directed to the Minister for Immigration and Multicultural Affairs calling on the Minister to show cause:

(a) why a writ of certiorari should not issue out of this Court to quash the decision made by the Minister on 27 June 2000, being the decision recorded in the document, a copy of which is exhibit DCD18 to the affidavit of Dung Chi Dang sworn 4 December 2001 ("the decision");

(b) why a writ of prohibition and further, or alternatively, injunction should not issue directed to the Minister prohibiting him from taking any step to detain or remove the prosecutor or otherwise implement or give effect to the decision

upon the ground numbered 3 in the draft order nisi filed 25 February 2002, namely, "At the time the Minister made the decision: (a) the prosecutor was an absorbed person; (b) the prosecutor was not a migrant; (c) the prosecutor was not an alien; (d) the validity of Section 501 of the Act in its application to the [prosecutor] could not be supported by: (i) the immigration/emigration power under the Australian Constitution, or - (ii) the aliens power under the Australian Constitution."

(2) Upon the agreed facts set out in the case stated initialled by me which will remain on the file and the documents referred to therein, I reserve for the consideration of a Full Court the question, "Did section 501(2) of the Migration Act 1958 (Cth) validly authorise the respondent to cancel the applicant's visa on 27 June 2000?".

(3) Direct that, subject to any further order of a single Justice or of the Full Court, the question reserved be listed for hearing at the same time as the matter of Re The Minister for Immigration and Multicultural Affairs, Ex parte Te, matter No M25 of 2001.

(4) Direct that on or before 12 noon 9 April 2002 the prosecutor file any written submission additional to those filed on behalf of the applicant in the matter of Te.

(5) Direct the respondent file any written submission in this matter additional to those filed on his behalf in the matter of Te at the same time as filing those submissions in the matter of Te.

(6) Direct the prosecutor file any written reply additional to the reply made in the matter of Te at the same time as the reply in that matter is required to be filed.

(7) Order that the costs of the hearings held on 21 March 2002, 4 April 2002 and this day be costs in the cause. Certify for the attendance of counsel.

Is there anything that counsel seeks to add? Now, I have not there directed the filing of a case stated book by Tuesday night but the parties have heard what I have said. They can expect that a settled index of the case stated book will be made available to them as soon as other business will permit but they should be working towards the preparation and filing of the case stated book no later than close of business Tuesday night.

MR NASH: If your Honour pleases, there is one small matter.

HIS HONOUR: Yes, Mr Nash.

MR NASH: It was the direction in respect of the prosecutor's filing the reply. I think your Honour said that at the same time as filing of the material in reply in the Te matter.

HIS HONOUR: Yes.

MR NASH: I am being even more irrelevant than my learned friend in a sense: technically should it not be at the same time as that reply is required to be filed rather than at the time - - -

HIS HONOUR: By all means. Yes, I understand. Very well then. Those orders having been made, I will adjourn.

AT 3.33 PM THE MATTER WAS CONCLUDED