Applicants S134/2002, Ex parte - MIMIA & Anor S134/2002 [2002] HCATrans 288 (11 June 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S134 of 2002

In the matter of -

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

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

APPLICANTS S134/2002

Applicants/Prosecutors

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 11 JUNE 2002, AT 10.52 AM

Copyright in the High Court of Australia

MR J. BASTEN, QC: I appear for the applicants with MR N.C. POYNDER, if the Court pleases. (instructed by Craddock Murray Neumann)

MR N.J. WILLIAMS, SC: I appear with MR G.R. KENNETT for the first respondent, your Honour. (instructed by the Australian Government Solicitor)

HER HONOUR: I hold a certificate from the Deputy Registrar who certifies that she has been informed by the solicitor for the second respondent, the Refugee Review Tribunal, that that respondent does not wish to be represented and will submit to any order of the Court save as to costs.

Yes, Mr Basten. Mr Basten, would you draw my attention to the provisions of the Act as they stood at the date of the Tribunal. It was the Tribunal decision?

MR BASTEN: Yes.

HER HONOUR: Yes.

MR BASTEN: Again, we have both a Tribunal decision and a 417 decision of the Minister in the public interest.

HER HONOUR: I just had a suspicion reading through it that there might have been some change as to the visa entitlement provisions.

MR BASTEN: Yes. Does your Honour have our rather late submissions in reply that were filed on Friday?

HER HONOUR: I have, I think. I do not know that I have read them.

MR BASTEN: No, perhaps should I indicate which material we rely on before we go to that, your Honour? I just have three affidavits which - - -

HER HONOUR: Yes, very well, thank you.

MR BASTEN: - - - I thought I should simply identify. We move on the affidavits of Kerry Daniel Murphy of 9 April 2002 and of 4 June 2002 and hopefully your Honour has a paginated copy of that material, and an affidavit of the prosecutor's husband also dated 9 April 2002 which we have them separately paginated because I do not think I will need to take your Honour to it.

HER HONOUR: Yes. Well, now is there any objection to any of that affidavit material?

MR WILLIAMS: No, your Honour.

HER HONOUR: No, including the husband's?

MR WILLIAMS: Well, there is a general relevance objection, your Honour, in that we say that the - - -

HER HONOUR: Only relevance?

MR WILLIAMS: Yes.

HER HONOUR: No, I think it is clearly relevant. There is no desire to cross-examine on that affidavit, the husband's affidavit?

MR WILLIAMS: Your Honour, our contention is that the relevant facts are those found in the Tribunal decision and for that reason the factual assertions in those affidavits are not relevant and I do not wish to cross-examine.

HER HONOUR: Very well.

MR BASTEN: Your Honour, the relevant facts are probably that the husband is the husband and he is in Australia and he has a protection visa and those - - -

HER HONOUR: That is why I asked.

MR BASTEN: Yes.

HER HONOUR: There is no requirement for me to go on any fact-finding exercise in that regard if no - - -

MR BASTEN: I understand not, your Honour, but can I say that in the first annexure to Mr Murphy's second affidavit which commences at page 66, if your Honour has the numbering in the top right-hand corner, is a minute to the Minister and in the course of that it is made clear, I think, from the background that the husband's presence in Australia is noted and understood. So it just may not be in issue any more that this was a fact which was before the Minister and it was understood that that had certain consequences.

Your Honour asked me to go to the section as it was in force - - -

HER HONOUR: Perhaps I should divert you a little bit, if you do not mind?

MR BASTEN: I am sorry.

HER HONOUR: This is the first time I have had post-Tampa amendment migration cases.

MR BASTEN: Yes.

HER HONOUR: How do those amendments affect this claim, if at all, do you say?

MR BASTEN: Your Honour, firstly, if your Honour has initial submissions which were filed on 6 June, at page 9, again numbered in the top right, which is after the submissions, there is a series of annexures. Page 9 has at the bottom of the page section 36(2) in the form that it was in at the time of the RRT decision and we could go to Reprint 8, your Honour, but the next page has section 36(2) in the form that it was in at the date of the Minister's decision and your Honour will see it has really been split into parts so that whereas originally it simply talked about a criterion being that the applicant is a non-citizen in Australia to whom Australia has protection obligations, now it speaks of two categories:

(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations . . .

(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who -

falls into paragraph (a). Apart from noting that there is no reference to satisfaction in paragraph (b) of the Minister, that is the - - -

HER HONOUR: But is there any change in the substance of the law, apart from the wording?

MR BASTEN: Your Honour, we say no.

HER HONOUR: What did the Convention relevantly provide at the time? What does the Convention provide, yes?

MR BASTEN: The Convention does not relevantly provide in relation to spouses, your Honour. In the reply that we filed on Friday, we annex a copy of - perhaps I could just indicate. We deal with a point in paragraph 2, your Honour. What we say is that there is no change in substance and we say that is because of the principle of family unity which would require a spouse and dependants to be treated as in the same category of entitlement as someone who has suffered persecution directly and that we do by reference to Chapter 6 of the handbook of the UNHCR which is set out as an annexure to those submissions which sets out the Universal Declaration of Human Rights and the relevant final act of the conference that adopted the 1951 Convention which expressly refers to that. So that we say it is at least arguable, your Honour, that there has been no change in the law since the decision of the Tribunal and that the spouse and dependants would have been entitled to visas as spouse and dependants had they been included on the application of the principal applicant at that time, in any event.

HER HONOUR: Now, that much I understand. So far as concerns the Tribunal's decision, are your rights in this Court affected by the Tampa amendments?

MR BASTEN: Yes, your Honour.

HER HONOUR: Why is that?

MR BASTEN: Because the Tribunal decision - although I think we go back to the provisions which Mr Lloyd may have taken your Honour to a while before - - -

HER HONOUR: Yes.

MR BASTEN: - - - the only proceedings for judicial review which have been instituted in relation to that decision are these proceedings in this Court. Accordingly, if your Honour has Reprint 8 and the transitional provisions - - -

HER HONOUR: So these proceedings were not commenced until April, I understand?

MR BASTEN: That is so, and they constitute judicial review proceedings for the purpose of the provisions at 572.

HER HONOUR: Very well. Let me just get this clear, your challenge to the Tribunal's decision so far as 75(v) grounds are concerned can be summed up in what way?

MR BASTEN: It is based on the fact that the Tribunal failed to deal with the matter on the basis that we were entitled to a visa as the spouse and dependants of a person who then held a protection obligation. To the extent that that is an error on the part of the Tribunal for one of two reasons we say that either we can seek to have the decision set aside on the basis that it was a jurisdictional error or, alternatively, we can seek an injunction that the Minister not act upon the basis for that decision.

HER HONOUR: I was just wondering about that. It may be that you do not have to assert jurisdictional error for each action.

MR BASTEN: That is so, we say that, your Honour. We expressly say that in our submissions. We filed with the reply an amended form of the draft order nisi which deals with that.

HER HONOUR: Yes, thank you. Now, the Minister's 417 decision, do you go so far as to say it was not a bona fide attempt to exercise power?

MR BASTEN: Yes, your Honour, in the sense - we put it again in both ways. We do of course - - -

HER HONOUR: Yes. Do you put it on entitlement?

MR BASTEN: Yes.

HER HONOUR: Although he is not bound to - - -

MR BASTEN: He is not bound to consider but he did.

HER HONOUR: But you say in this case he did?

MR BASTEN: He did.

HER HONOUR: Having considered it - - -?

MR BASTEN: He then considered it on a wrong basis.

HER HONOUR: Which amounted to a constructive failure to exercise jurisdiction.

MR BASTEN: To exercise jurisdiction.

HER HONOUR: And in the alternative, you put it on not a bona fide attempt to exercise the power conferred?

MR BASTEN: Yes, and we also seek injunctive relief in relation to that decision and we also - - -

HER HONOUR: You say, as the Act now stands, you are entitled to that injunctive relief?

MR BASTEN: Yes.

HER HONOUR: Yes, I do not think I need to hear you further, Mr Basten. Yes, Mr Williams.

MR WILLIAMS: Your Honour, the applicants' case in relation to the Tribunal decision found as a factual level on the last document in Mr Murphy's 4 June affidavit. It is page 96 of the helpfully paginated bundle that your Honour has. Your Honour - - -

HER HONOUR: Top or bottom number?

MR WILLIAMS: It is last page, page 96, and it is the top of the page.

HER HONOUR: Let me get this straight. This is the affidavit of 4 June 2002?

MR WILLIAMS: Of Mr Murphy, yes.

HER HONOUR: Kerry Daniel Murphy, yes. The last page I have - - -

MR WILLIAMS: I am sorry, the last page of the annexures, your Honour. It page 96 in the machine pagination at the top right-hand side.

HER HONOUR: Mine says 48.

MR WILLIAMS: The second affidavit, your Honour, 4 June.

HER HONOUR: I will say it again, one day somebody is going to work out a better means of dealing with the documents that are put forward in these matters. Affidavit - no, that is the husband's - of 9 April?

MR WILLIAMS: Of 4 June of Mr Murphy, your Honour. Your Honour, taking that affidavit - Mr Murphy, I should say, your Honour, has endeavoured to assist by filing a paginated version but I have just confused your Honour with my reference, but if your Honour looks at - - -

HER HONOUR: Thank you. That is the document I want, even though it is numbered 48.

MR WILLIAMS: It is, your Honour. Your Honour will see there at the top of the page:

Are there any members of the family unit who are NOT in Australia at the time of application?

And this is from the present applicants' application.

HER HONOUR: Yes, I can well understand why that was said, yes.

MR WILLIAMS: The husband is identified as a person who was not in Australia at the time of the - - -

HER HONOUR: All of that is almost certainly beyond dispute.

MR WILLIAMS: Yes.

HER HONOUR: But there is a very, very interesting question, is there not, as to the extent to which the facts determine things rather than beliefs?

MR WILLIAMS: That is a question that we say does not arise in the present case, your Honour, in that on all of the material that was before the Tribunal at the time at which the Tribunal made - - -

HER HONOUR: It certainly may not arise relevantly under 75(v) mandamus prohibition, but certainly must arise so far as there is a claim for an injunction based upon the truth. Do you see what I mean?

MR WILLIAMS: I do, your Honour.

HER HONOUR: Mr Basten has based his claim for relief not simply upon those grounds that would entitle you to prohibition mandamus or certiorari, but he says there is a wider basis for equitable relief called the truth, basically. I think that oversimplifies his argument but that is as I understand it.

MR WILLIAMS: Well, your Honour, our contention is that there is no basis for saying that there is jurisdictional error in the Tribunal's decision. The Tribunal's decision - - -

HER HONOUR: But Mr Basten is not basing it simply on that.

MR WILLIAMS: Our submission is that, absent some basis for saying that there is jurisdictional error or absent some basis for saying that the Tribunal was obliged to consider, to look for evidence of the husband's presence in Australia - - -

HER HONOUR: I do not want to alarm you, Mr Williams, you may well be right, but there are dicta in some judgments that say equitable relief available under 75(v) is not necessarily so confined. I mean, you may be right at the end of the day but certainly that possibility has been opened up in some judgments.

MR WILLIAMS: I recall your Honour's observation of Mr Basten in a different capacity in the Ho Song Lu application in Adelaide and I would not wish to seek to persuade your Honour that the question is not interesting. Our contention is that on the facts of this case - - -

HER HONOUR: Is it arguable, that is the question? At this level we do not consider whether they are interesting or not, merely whether they are arguable.

MR WILLIAMS: Your Honour, our contention is that on the present facts, it is not arguable in that whatever basis may be put forward for saying in some other case that there is constructive knowledge in the Tribunal, in the present case the Tribunal had before it only material pointing to the - - -

HER HONOUR: But I do not think Mr Basten even relies on constructive knowledge for his equitable relief. He relies on the facts, which is why I asked you do you want to challenge those facts. He relies on the facts. It is like, to give you an example, before the fusion of law and equity you could go to equity to get an injunction to prevent the enforcement of a common law judgment if it was obtained by fraud or other matters that would entitle you to equitable relief. Mr Basten is saying that that old jurisdiction is incorporated in 75(v) and it does not matter to me whether there is jurisdiction error, whether the Tribunal made an error, 75(v) has entitled me to equitable relief on the facts; that the decision can no longer stand as a matter of good conscience because it does not reflect the true facts.

MR WILLIAMS: The facts in the present context are to be determined by reference to the statutory context within which they are found. The facts in the present context are found relevantly first by the Tribunal and there is nothing to impugn the Tribunal's decision arising from later facts being made available that may suggest a different view may have been arrived at had they been put before the Tribunal. There is nothing that undermines the Tribunal's decision. The statutory context of the present matter gives the Tribunal's determination of refugee status statutory force subject only to the Minister's wider discretion under section 417.

In relation to his discretion under section 417, our submission is that even on the amended version of the section, it is a precondition on the Minister's satisfaction that the primary applicant, the applicant's husband, is a refugee, is a person to whom Australia owes protection obligations. In our submission, from the material that went before the Minister, including the Tribunal's findings that the present applicant - - -

HER HONOUR: Is that the Minister's hand-written note on the memo? Is that the Minister's note or is it somebody else?

MR WILLIAMS: I have no instructions, but I do not believe so from the dates, your Honour. The underlinings may be those of the Minister, but the note is dated 12/3, whereas the Minister's signature appears to have been affixed on 21/3 so that would appear to be that of an officer. The underlining may be that of the Minister. Your Honour, that submission refers very clearly to the Tribunal's findings and the Tribunal's findings were that the present applicant is not a citizen of Afghanistan and nor is her husband. In light of that, there was no basis, even upon the amended version - - -

HER HONOUR: Was it a positive finding that she was not?

MR WILLIAMS: Yes, your Honour.

HER HONOUR: A positive finding that she was not a citizen of Afghanistan?

MR WILLIAMS: Yes, your Honour.

HER HONOUR: Or simply a non-satisfaction?

MR WILLIAMS: If your Honour goes to the last page of the Tribunal's decision, I am not sure how best to direct your Honour to that. Does your Honour have the version that has a machine pagination at the top?

HER HONOUR: I do not think so. Whose affidavit am I going to?

MR WILLIAMS: Well, this would be in Mr Murphy's affidavit filed on 9 April.

HER HONOUR: On 9 April.

MR BASTEN: Your Honour, I can hand up a copy perhaps.

HER HONOUR: I have that. Page, paragraph number, annexure or - - -?

MR WILLIAMS: The last page of the Tribunal's decision.

HER HONOUR: Yes, I have it now, KM3.

MR WILLIAMS: Your Honour sees the paragraph, "Concerning the other applicants".

HER HONOUR: Yes, I am just wondering. Yes, there is a definite finding that they are not Afghani nationals.

MR WILLIAMS: Yes, your Honour.

HER HONOUR: But the Minister is not bound by findings, is he?

MR WILLIAMS: No, that is so, but there is no basis for saying that the Minister, upon the material placed before him, was satisfied that Australia - - -

HER HONOUR: Did he have - I think he had evidence or something to indicate that they had been so identified by the husband, had he not?

MR WILLIAMS: He had the evidence that the present applicants had been identified as the husband's children.

HER HONOUR: And he knew that the husband been granted a temporary protection visa?

MR WILLIAMS: Yes, and that investigations into that matter were under way. That was in the submission put before the Minister by the visa integrity unit, so - - -

HER HONOUR: Do we know if those investigations have now been concluded?

MR WILLIAMS: Perhaps the most - - -

HER HONOUR: I should say to you, perhaps you should not answer that. I should not ask it, and perhaps I should warn you that I was reading into what you were saying that an admission that the Minister had exercised his discretion without completing investigations which, given that Mr Basten - and maybe that is not what you intended to say, but that is as I understood it. That may have been a false understanding and that may be a very relevant consideration so far as Mr Basten says that it was not a bona fide exercise of power. So I should give you an opportunity to rephrase what you have said if you wish to.

MR WILLIAMS: Perhaps I should say there is no evidence as to those other matters before the Court. I apprehend that Mr Basten does not put his case in that way.

HER HONOUR: I think he does. I think he puts it on not a bona fide exercise of power.

MR WILLIAMS: But he does not put it on the basis that there were uncompleted investigations into the husband's visa status.

HER HONOUR: But he might, there is nothing to preclude him.

MR WILLIAMS: We will deal with that when he puts it that way, your Honour. We may deal with it by evidence.

HER HONOUR: Yes. I mean, that is what I am saying. If you want to rephrase what you have said, I think, perhaps, now is your time to do it.

MR WILLIAMS: Your Honour asked me a question. Perhaps I should give the careful answer that there is no evidence before the Court as to the status of the husband's visa at the present time. So, your Honour, we say that in relation to the challenge to the Tribunal decision, it fails at the factual level because the applicant's own case pointed the Tribunal away from any suggestion that the husband was in Australia. In relation to the Minister's decision, under section 417, we say that fails at the legal level because there is no evidence that the Minister was satisfied that Australia owed protection obligations to the applicant's husband. Your Honour, those are our submissions.

HER HONOUR: I will grant the order nisi in the terms of the amended order nisi attached to your submissions on Friday last.

MR BASTEN: Yes, that is convenient, your Honour. I apologise, there is a mistake at the bottom of page 7 of that document. I do not know how this got through but my direction - it should simply presumably be that "Notice be given to the respondents requiring them to show cause why an order nisi should not be made absolute". Could we re - - -

HER HONOUR: You have leave to amend that. Now, do you seek any interim relief?

MR BASTEN: I think the answer is we do not need any interim relief, your Honour. We did seek an interlocutory injunction but we sought an undertaking on Friday and I do not understand there is a difficulty with that.

HER HONOUR: Perhaps we should have it on the record. You understand the undertaking?

MR WILLIAMS: If your Honour will excuse us a moment, I will get the precise - - -

HER HONOUR: Yes.

MR WILLIAMS: Your Honour, I am instructed that the first respondent undertakes to the Court not to remove the prosecutors while the proceedings are pending.

HER HONOUR: Thank you.

MR BASTEN: Your Honour, the only other question which is raised in the submissions - and I know I can say no more than this - is that whatever level of expedition may be available is sought because of the circumstances of the children.

HER HONOUR: They are still in custody, are they, and I take it they will remain in custody until the matter is heard. Is that right?

MR WILLIAMS: That is the effect of the statute, yes.

HER HONOUR: Yes, I will see what can be done. You could not oppose expedition?

MR WILLIAMS: I do not oppose it, your Honour. Might I just say this: the Full Federal Court Bench of five that your Honour may be aware of that heard a series of appeals last week - - -

HER HONOUR: Yes, but on one view, you see, this might be determined without reference to the amendments. I suppose it could not be entirely but it might be.

MR WILLIAMS: If I can just inform your Honour that that Bench anticipated that a decision would be given prior to the commencement of the Full Federal Court August sittings. This Court may be assisted by that court's reasons.

HER HONOUR: Yes. I thought you thought we might wait and hear a special leave application in relation to it and so forth and so on and hear the matters together.

MR WILLIAMS: No. I simply wanted to inform your Honour that we expect the decision prior to August.

HER HONOUR: Yes, thank you. Now, Mr Basten, you will have to give some care to the 78B notices.

MR BASTEN: Yes, the 78B notices.

HER HONOUR: Relating both to injunctive relief and the privative clause issue.

MR BASTEN: Yes, that is so, your Honour, we will. If the Court pleases.

HER HONOUR: On that basis, there is nothing else to be done.

MR BASTEN: Would your Honour certify? I do not know whether you need to certify, perhaps you do?

HER HONOUR: I will, just in case. I will certify for the attendance of counsel. I do not need to do further for costs, do I, because it will all be costs in the application?

MR BASTEN: Yes.

HER HONOUR: We will adjourn briefly and resume for the last two matters in about 10 minutes.

AT 11.22 AM THE MATTER WAS CONCLUDED